Summary: Miss X complained the Council failed to comply with legal timescales when completing an Education, Health and Care Needs Assessment for her daughter Y, did not correctly seek health and social care advice during the process, and failed to provide alternative educational provision. We find the Council at fault for missing legal timescales, not seeking advice correctly, and not making a timely decision on whether it owed a duty to provide alternative provision. This caused injustice in the form of uncertainty and frustration. The Council has agreed to apologise and make a symbolic payment to remedy the injustice.

The complaint

1. Miss X complains about the Council’s handling of her daughter Y’s special educational needs. She complains the Council failed to:
1. Complete the EHC (Education, Health and Care) Needs Assessment in line with the legal timescales.
2. Correctly seek health and social care advice leading to a poor-quality EHC Plan.
3. Secure suitable alternative educational provision after March 2025 when Y could no longer attend school.
2. She complains this caused Y a loss of education and significant negative impacts on her mental health. It also caused Miss X distress and had a financial impact on the family when she had to leave work to provide education.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
8. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
9. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened. 
10. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)

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What I have and have not investigated

11. I have investigated from June 2024, when the Council started the EHC Needs Assessment process. I have investigated until October 2025 when the Council issued Y’s EHC Plan.
12. The period before 24 September 2024 was more than 12 months before Miss X complained to us. That period is therefore late. I have decided Miss X would not reasonably have known the Council was going to miss the deadline to issue Y’s EHC Plan until it did so in October 2024. She complained to us within 12 months of that date. I have decided those are good reasons to exercise my discretion to investigate from June 2024.
13. We normally cannot investigate complaints about matters that the Council has not had an opportunity to investigate and respond to. Miss X did not directly refer to part b) in her complaints to the Council. I have decided Miss X indirectly referred to them in her stage three complaint. She complained of a lack of up to date professional reports. I have decided this allowed the Council a reasonable opportunity to respond to the matters under part b). I have therefore decided to exercise my discretion to investigate that part.
14. Miss X raised concerns about Y’s educational provision after the Council issued her EHC Plan in October 2025. I cannot investigate matters beyond that date. This is because I have decided Miss X could have appealed to the Tribunal about those matters, and that would have been the correct route to take. I cannot overlap with the role of the Tribunal to decide something that could have been referred to it.

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How I considered this complaint

15. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
16. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
17. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Law and guidance

EHC Needs Assessments and Plans 

18. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
19. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  

20. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• psychological advice and information from an Educational Psychologist (EP); 
• medical advice and information from health care professionals involved with the child; 
• social care advice and information. 

21. Those consulted have a maximum of six weeks to provide the advice. 

Social Care advice for EHC Plans

22. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child or young person’s social care needs. Where a child or young person is not previously known to social care this will require a new assessment to identify if there are social care needs which need to be included in the EHC Plan.  
23. Where the council decides it is necessary for support to be provided under section 2 of the Chronically Sick and Disabled Persons Act 1970 it must include this in Section H1 of the EHC Plan. Support provided by Early Help or under section 17 of the Children Act 1989 (child in need) should be included in Section H2 of the EHC Plan. 
24. If a parent disagrees with the social care support set out in the EHC Plan they can make a complaint to the council. Alternatively, if they are going to appeal to the Tribunal about other parts of the EHC Plan, they can ask the Tribunal to consider any disagreement. If the Tribunal makes a finding on the social care elements, it is non-binding. (It is not a statutory right of appeal).

Appeal rights

25. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
26. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
27. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
28. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
29. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

Alternative educational provision under the “section 19 duty”

30. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
31. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and timebound plan for reintegration then there may be no immediate role for the council in providing alternative education.
32. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025)
33. Our guidance says that councils should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether it will arrange alternative education provision;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary.

What happened

34. This is a summary of key events. It is not a detailed chronology of everything that happened.
35. Y has special educational needs. She attended a mainstream primary school. I shall refer to it as School A.
36. School A contacted the Council in early June 2024. It requested an EHC Needs Assessment for Y. Later in June the Council notified Miss X it had received the request.
37. In July the Council decided it would carry out an assessment. It notified Miss X. It contacted relevant professionals and requested advice. It did not receive advice from an Educational Psychologist (EP) within the required six weeks.
38. In September Y was diagnosed with autism by the NHS.
39. In late October the 20 week deadline for issuing a final EHC Plan passed. The Council did not meet the deadline.
40. In March 2025 Y stopped being able to attend School A. Her non-attendance was linked to her special educational needs. Miss X notified the Council by email. She said School A was arranging some alternative educational provision for Y.
41. School A subsequently started funding alternative educational provision. It started in mid-March.
42. The Council received the EP advice report in early April 2025. The EP recommended special educational provision for Y.
43. School A started funding some additional alternative educational provision that started at the end of April. The Council subsequently agreed to fund some of the provision School A had arranged.
44. Miss X asked the Council about the EHC Plan in June. The Council told her it may take another four or five months.
45. In June Miss X made a stage one complaint to the Council. She complained about the delay in progressing Y’s EHC Plan. She also complained Y was still only receiving one and a half days of alternative educational provision funded by the school. She said this was not adequate provision to meet Y’s educational needs. She also said it was having a significant negative impact on the wider family.
46. Later in June the Council responded to Miss X’s stage one complaint. It agreed it had taken longer than it should to complete Y’s EHC Needs Assessment and arrange alternative educational provision. It said it could not provide a clear timescale for completion of the assessment process. It also said it had agreed funding for additional alternative educational provision in the form of tutoring. It upheld her complaint and apologised.
47. Miss X escalated her complaint to stage two the next day. She was not satisfied with the Council’s response about the EHC Plan delays and additional alternative educational provision.
48. Also in June School A contacted the Council. It was also concerned about Y’s educational provision. The Council replied. It said it was progressing alternative educational provision.
49. The Council issued Y’s draft EHC Plan on 10 July.
50. On 11 July the Council met School A and discussed alternative educational provision for Y. The Council approved a package of provision. It agreed to fund some of the provision that School A had put in place. It also agreed to fund 15 hours of one-to-one home tutoring.
51. On 16 July the Council responded to Miss X’s stage two complaint. It continued to uphold her complaint.
52. Miss X escalated her complaint to stage three the same day. She complained the Council had not requested up to date reports for the assessment process. She said this meant the draft EHC Plan was poor quality.
53. Miss X raised concerns with the Council about the offer of home tutoring on 17 July. She said that the poor quality of the draft EHC Plan meant the home tutoring service would not properly understand Y’s needs. The Council and Miss X had a meeting on 22 July. They discussed her concerns about the EHC Plan and alternative educational provision.
54. In August the Council provided its stage three response. It continued to uphold her complaint. It offered a payment of £500 to remedy the injustice.
55. The Council completed a social care assessment of Y on 26 August. It agreed Y met eligibility criteria for short breaks funding under the Chronically Sick and Disabled Persons Act 1970.
56. Miss X complained to us on 24 September 2025.
57. On 9 October 2025 the Council issued Y’s initial final EHC Plan. It named an independent special school that would deliver Y’s special educational provision. Miss X had appeal rights if she disagreed with the EHC Plan.

Analysis and findings

58. I address each part of Miss X’s complaint in order below.

a) Failure to complete the EHC Needs Assessment in line with the legal timescales

59. The Council received the EHC Needs Assessment request in June 2024. It subsequently agreed to complete an assessment and issue an EHC Plan. In those circumstances it should have issued Y’s final EHC Plan by the end of October 2024.
60. The Council did not issue Y’s EHC Plan until early October 2025, about 50 weeks later than the legal deadline. This was fault.
61. I acknowledge part of the fault was due to the EP delay. The Council did not receive the EP report until early April 2025. The Ombudsman recognises there is a national shortage of EPs. I am satisfied the initial delay was due to this shortage and outside the Council’s control. I therefore find the initial delay was service failure, not maladministration.
62. However, the Council took a further six months to issue Y’s EHC Plan after it received the EP advice. I have decided it should have taken no more than two months to do so. That would have been broadly in line with the steps of an EHC Needs Assessment. I find the subsequent four month delay after the EP report was maladministration.
63. The fault caused injustice of significant distress in the form of uncertainty, and frustration. I also find it caused missed special educational provision for Y.

b) Failure to correctly seek health and social care advice leading to a poor-quality EHC Plan

64. The Council sent a request for health advice to an NHS trust in early July 2024. It received a reply within six weeks. The reply said Y was not known to the relevant health teams and therefore there was no advice to contribute. The Council recorded that information in Y’s final EHC Plan.
65. Miss X said their home was under a different NHS trust area. I have considered Y’s NHS report from September 2024. I have also looked at Miss X’s postcode in relation to a map of NHS trust areas.
66. Based on this evidence I find the Council sought medical advice from the wrong NHS trust when completing Y’s EHC Needs Assessment. This was fault.
67. I have decided I cannot say, even on balance of probabilities, what the response from the correct NHS area, and subsequent outcomes, might have been. However, I find the fault caused Miss X injustice in the form of distress and uncertainty.
68. The Council also sent a request for social care advice to its children’s social services department in July 2024. I have seen no evidence of a formal reply within six weeks.
69. The Council recorded there was no social care provision identified in Y’s final EHC Plan.
70. I note the Council’s children’s social services decision to authorise short break funding on 26 August 2025. It did so because it decided Y met eligibility criteria under the Chronically Sick and Disabled Persons Act 1970.
71. Based on this evidence I find the Council’s children’s social services department failed to respond to the request for information within six weeks. I also find the Council should have recorded the short break funding in Section H of Y’s final EHC Plan, and failed to do so. These matters were fault.
72. I have decided I cannot say, even on balance of probabilities, the fault had any impact on the delivery of any social care provision. This is because I have seen no evidence the absence of the short break support in the EHC Plan had any bearing on the delivery of the support itself. However, I find the fault caused Miss X injustice in the form of uncertainty and frustration.
73. I have also decided that I cannot say whether the matters resulted in a poor-quality EHC Plan. This is because we cannot direct changes to an EHC Plan. Only the Council or Tribunal can do that. If Miss X is unhappy with the content of Y’s EHC Plan the correct route to address her concerns is via mediation and appeal to the Tribunal.

c) Failure to secure suitable alternative provision after March 2025 when Y could no longer attend school

74. The evidence shows the Council was aware Y’s special educational needs affected her school attendance from 2024. The Council was considering attempts School A was making to support Y as part of the EHC Needs Assessment Process. It may, therefore, have decided it had no immediate role in the early stages.
75. However, Miss X then notified it Y had stopped attending in March 2025. I have seen no evidence that the Council considered School A had a clear, effective, and timebound plan for reintegration at that point.
76. I therefore find the Council should have responded by making a timely evidence-based decision about whether it owed a Section 19 duty to arrange alternative educational provision. It did not do so. This was fault. It caused Miss X injustice in the form of uncertainty and frustration.
77. I find the Council made a clear evidence based decision in July. It met with Miss X and School A. It decided to offer a package of alternative provision. The package was a combination of the provision School A had already arranged and an additional package of one-to-one home tutoring. I acknowledge Miss X disagreed that the tutoring was suitable. However, I find no fault in the way the Council made its decision. I therefore cannot question the outcome.
78. I have considered whether the delay in making a decision caused injustice of missed alternative educational provision. I have considered evidence including the alternative provision arranged by School A from March, reports provided by the organisations that delivered the provision, and Miss X’s subsequent decision to decline the tutoring.
79. I have decided I cannot say, even on the balance of probabilities, that Y would have received more or different alternative educational provision had the Council made its decision in March. For that reason I do not find the Council’s fault caused missed alternative educational provision.

Remedies for the injustice

80. I acknowledge the Council has accepted fault for the delays in the EHC Needs Assessment process, apologised, and offered a payment of £500 to remedy the injustice.
81. The apology meets the Ombudsman’s expectations for how organisations should apologise.
82. I have carefully considered the symbolic payment with reference to our Guidance on Remedies. I have decided to recommend the Council pay Miss X a symbolic payment of £900 to remedy the injustice. This is instead of, not as well as, the payment already offered by the Council.
83. This is made up of £100 per month for the six months delay when the Council did not receive the EP advice, and an additional £300 for the subsequent delay after it received the EP advice. The amount recognises the frustration and uncertainty caused to the family by the delays in the EHC Needs Assessment process and in failing to make a timely decision regarding alternative educational provision.
84. I have decided I cannot recommend a remedy for an estimated loss of special educational provision. This is because I cannot say, even on balance of probabilities, what the special educational provision would have been had the EHC Plan been issued sooner.
85. I recommend the Council apologises for the uncertainty and frustration caused by contacting the wrong NHS area, its social services department not responding to the request for information in time, and its failure to record the short break support in Y’s EHC Plan.
86. I have decided not to make service improvement recommendations. This is because the Council explained the lessons learned from this case in its stage three response. It is also because it has provided the Ombudsman details of ongoing organisation led improvement plans. I have therefore decided further recommendations would be unnecessary duplication.

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Action

87. Within four weeks of this final decision the Council has agreed to:
1. Make a symbolic payment of £900 to Miss X for the uncertainty and frustration caused by the delays in the EHC Needs Assessment and alternative provision processes.
2. Apologise to Miss X for the uncertainty and frustration caused by the health and social care faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
88. The Council should provide us with evidence it has complied with the above actions.

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Decision

89. I find fault causing injustice for the reasons explained in the analysis section and I uphold Miss X’s complaint. The Council has agreed actions to remedy the injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman