Summary: Mrs F complained the Council delayed issuing an education, health and care plan and failed to secure a suitable education for her son. We found fault which caused uncertainty and distress and for Mrs F’s son to miss out on education for one and a half terms. The Council has agreed to apologise, make a symbolic payment and a service improvement.

The complaint

1. Mrs F complained the Council:
1. Refused to accept an educational psychologist’s report she obtained as part of her son’s education, health and care needs assessment.
2. Delayed issuing a final EHC plan following the assessment.
3. Failed to ensure her son was receiving suitable full-time education.
2. Mrs F says this has disrupted her son’s education and significantly affected his mental and physical health. She has been unable to work and has been caused significant distress and financial strain.

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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. 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.
6. 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.
7. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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(i), as amended)
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

10. I have investigated the period January to October 2025. This is because our policy is that the end date of our investigation should be no later than the date when the complaint was submitted to the Ombudsman.

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How I considered this complaint

11. I spoke to Mrs F’s representative about the complaint and considered the information he sent, the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice ("the Code")
• The Special Educational Needs and Disability Regulations 2014 (“the Regulations”)
12. Mrs F and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Special educational needs - relevant law and guidance

13. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
14. Parents have a right of appeal to the Tribunal if they disagree with the SEND provision, the school named in their child's plan, or the fact that no school or other provider is named.
15. Before appealing, parents may go to mediation. Regulation 37(1) says “The body (or bodies) arranging the mediation must ensure that it is attended by persons who have authority to resolve the mediation issues.”
16. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Timescales and process for EHC needs assessment

17. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. Councils must decide whether to carry out an EHC needs assessment and notify the parent of their decision within six weeks of a request. Parents can challenge a refusal to assess by appealing to the Tribunal.
18. In order to complete an EHC needs assessment the Council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist (EP), social care, anyone else the Council considers appropriate and from any person the child's parent reasonably requests. (SEND Regulations 2014, regulation 6(1))
19. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current. Those consulted have a maximum of six weeks to provide the advice.
20. The Code says EHC needs assessments “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.
21. 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).

Part-time timetables

22. The DfE guidance, Working together to improve school attendance, states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a reintegration package. A part-time timetable should have regular review dates and a proposed end date. It must not be treated as a long-term solution.

Alternative provision

23. Section 19 of the Education Act 1996 says that the council must arrange alternative educational provision when it finds that a child is not receiving a suitable education because they are 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.
24. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
25. 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 time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.
26. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
27. The courts have said if illness prevents a child from attending a particular school, it is likely to prevent that child from attending any school. The test is therefore whether the child is too unwell to attend any school, not just the school where they are on roll.
28. If a council decides alternative provision must be made, there is no statutory requirement as to when it should begin for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.

What happened

29. I have summarised the events. This is not meant to describe everything that happened.
30. Mrs F’s son, J, was in Year 7 of a mainstream high school (“the School”). He had reduced attendance due to anxiety.
31. On 16 January 2025, Mrs F asked the Council to assess J’s EHC needs. The School put in place a part-time table of 3 hours per day from 28 January. It sent this to the Council in February. I have seen no evidence this part-time timetable was reviewed for the rest of the school year.
32. The School commissioned a private educational psychologist (“EP1”) to assess J. The assessment was completed in April.
33. The Council considered Mrs F’s request for an EHC needs assessment and refused it on 14 May. Its refusal letter to Mrs F set out her Tribunal appeal rights. Mrs F went to mediation and a meeting was arranged for 23 June.
34. On 9 June, she also requested alternative provision for J as he was struggling to attend school. I have seen no evidence of a response to Mrs F about this, or of any consideration by the Council as to whether J was receiving a suitable education, whether school was available and accessible to him or whether the Council owed him a duty under section 19.
35. The School submitted a new request for an EHC needs assessment on 10 June, attaching the EP1 report. The Council then emailed the mediator on 19 June cancelling the mediation meeting, although I have seen no evidence that Mrs F or her representative were advised of this. Mrs F’s representative told me that at the meeting there was no Council officer with authority to overturn the decision not to assess, contrary to Regulation 37(1).
36. The Council’s local moderating panel agreed to carry out an EHC needs assessment on 17 July and wrote to Mrs F on 24 July about this. As the Council had agreed to assess, and later to issue a plan, a final EHC plan should have been issued by 28 October 2025 (20 weeks from 10 June).
37. The panel considered that the EP1 report was insufficient and requested an addendum be added. I have seen some evidence that the Council asked one of its EPs (“EP2”) to do this but then cancelled that request as it believed the School was commissioning EP1 to produce an addendum. But I have not seen evidence of any discussion with the School or with EP2 at this stage.
38. Mrs F complained to the Council on 22 July that it had rejected the EP1 report and that J was only receiving 2 hours education a day. (She said he was unable to stay for the third period.) The Council’s response on 15 August apologised for a delay replying to her request for alternative provision. The Council said as J was “accessing an education through his school it remains their responsibility to provide an education”. It said the EHC needs assessment was ongoing and apologised for a delay in obtaining EP advice.
39. Mrs F escalated her complaint. The Council’s final response on 15 September said the Council could not accept the EP1 report as it had been written by an assistant EP. The Council was “actively working to allocate an EP to complete the assessment”. The Council was aware J was on a part-time timetable and that the School “has indicated it cannot fully meet his needs” but it was the School’s responsibility to ensure J’s educational needs were met. Mrs F came to the Ombudsman.
40. J stopped attending the School altogether in October. The Council became aware of this on 16 and 21 November 2025, when the school and Mrs F told it. However, I have seen no evidence it considered whether it had a duty to make alternative provision until February 2026, when it agreed to arrange alternative provision.
41. I have seen evidence that the Council asked EP2 to produce an addendum to the EP report on 16 October. A case record on 5 November said that EP1 would not produce the addendum but I have seen no evidence of a discussion with EP1 until 26 November when EP1 told the Council its report had been intended to inform the School’s request for an EHC needs assessment, rather than be the statutory EP advice and information as part of the assessment. The EP2 report was received on 9 December. At this stage an EHC plan could be issued.
42. Mrs F made further complaints and requests for alternative provision for J. In March 2026 the Council agreed to provide alternative provision under section 19 consisting of 15 hours per week.
43. The final EHC plan was issued on 22 May 2026. It named a mainstream setting but said the setting would be “other arrangements made by the Council.”

My findings

44. Mrs F requested an EHC needs assessment on 16 January 2025. A response should have been issued within six weeks (i.e. by 27 February) but was issued on 14 May 2025. This is fault causing an 11-week delay to Mrs F’s appeal rights. However, that injustice is mitigated as the Council went on to agree to assess, so Mrs F did not need to appeal.
45. The Council cancelled the mediation meeting due to take place on 23 June 2025 because it had received a new request for an EHC needs assessment. However, I have seen no evidence Mrs F or her representative was told this. This was fault causing frustration and distress, because Mrs F’s representative told me they attended a mediation meeting that could not take decisions.
46. Mrs F complains the Council failed to ensure J was receiving a suitable education. The Council was aware in February 2025 that J was on a part-time timetable. It may have been acceptable for him to remain on a part-time timetable between January and July 2025, and the DfE guidance does not place a specific duty on councils to review school-led part-time timetables. However, where a council is aware a child with possible SEND is attending only part-time because of anxiety and difficulties accessing school, it should keep the child's educational provision under review, work with the school to understand whether the child's needs are being met and consider whether additional or alternative provision is required to ensure the child receives suitable education. It should also monitor any reintegration plan to consider if it is working. I have seen no evidence the Council did this. That was fault.
47. Mrs F requested alternative provision on 9 June 2025. There is no evidence the Council replied to Mrs F at the time, which is fault.
48. Mrs F and the School advised the Council in November 2025 that J was no longer attending. No alternative provision was made until March 2026. This was fault. By November 2025, J had been on a part-time timetable for two terms but I have seen no evidence the Council reviewed any reintegration plan or that reintegration was working. J was therefore left without a suitable education.
49. In its responses to Mrs F’s complaints and my enquiries, the Council said it would not make alternative provision because J remained on a school roll and it was the School’s responsibility to provide education. The law is clear that councils must intervene and provide education under Section 19 if no suitable educational provision has been made by their school, for a child who is missing education through exclusion, illness or otherwise. Where a council is aware a child is not attending, or only attending part-time, it should review whether the child is receiving a suitable education and whether school is accessible and available. I have seen no evidence the Council considered this until February 2026.
50. I find the Council failed to keep J's educational provision under review and consider whether alternative provision was required. That is fault.
51. The Council received a new request for an EHC needs assessment on 10 June 2025. It agreed to assess and later to issue a plan. A final EHC plan should therefore have been issued by 28 October 2025. The Council did not issue the final plan until 22 May 2026. This is a delay of around seven months and is fault.
52. The first six weeks of the delay was caused by delay in obtaining the educational psychologist’s report. Mrs F complained that the Council had wrongly rejected the EP1 report because it was produced by an assistant EP, although it had been signed off by a consultant EP. The Regulations require councils to obtain advice from an "educational psychologist", but neither the Regulations nor the Code define that term or specify the qualifications required. The key issue is therefore the meaning of "educational psychologist" in the Regulations. It is not the Ombudsman’s role to interpret or determine a point of law, that is for the Courts.
53. However, I do not need to decide whether the Council should have accepted the EP1 report in order to reach findings on this complaint. I have not seen the panel’s 17 July decision about the EP1 report, but it is unlikely I would criticise a decision to seek further EP advice, as that is a professional judgment about the evidence it required.
54. I have considered whether there was avoidable delay in obtaining that additional advice and issuing the EHC plan. I find there was delay (fault). This is because I have seen no evidence the Council asked for further EP information and advice before October 2025. Once the EP2 report was received in December, there was then further delay issuing a final plan until May 2026. This is fault.

Did the fault cause injustice?

55. I have found the Council failed to keep J’s educational provision under review and consider whether alternative provision was required from January 2025 to February 2026.
56. I cannot say, even on balance, whether the Council would have decided to put alternative provision in place had it considered its section 19 duties between February and October 2025. This is because J was on a part-time timetable and it may be that the Council would have decided that was suitable education. However, the failure to review his education and make a clear decision causes uncertainty about whether alternative provision may have been arranged sooner. This uncertainty is an injustice.
57. I have found it was fault not to put alternative provision in place in November 2025. This means J lost out on education and SEND provision from November 2025 to March 2026 (one and a half terms). This is an injustice.
58. The delay issuing the final EHC plan delayed Mrs F’s appeal rights by seven months, which is an injustice. It also caused uncertainty about what special educational needs provision could have been secured for J from November 2025. This is an injustice.
59. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been. This is because it is not possible to now provide the services missed out on.
60. Our guidance on remedies says that for uncertainty and distress caused by fault, a moderate symbolic payment up to £500 may be appropriate.
61. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the harm caused by that loss. Taking into account that it is likely J would not have been able to attend school full-time from November 2025 to March 2026, and that Mrs F’s appeal rights were delayed, I consider £1,000 per term to be an appropriate amount.
62. The Government issued a SEND improvement notice to the Council in 2025 and it has a SEND priority action plan. I have therefore made no further service improvement recommendations in relation to EHC plan processes.

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Action

63. Within a month of my final decision, the Council has agreed to apologise to Mrs F and pay her:
• £500 to remedy the uncertainty caused by fault, as described in paragraphs 56 and 58.
• £1,500 to remedy one and a half terms of lost education (November 2025 to March 2026) and delay to appeal rights as set out in paragraph 57.
64. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
65. Within three months of my final decision, the Council has agreed to issue guidance to staff about the Council’s duties under section 19 of the Education Act 1996. This should ensure the Council makes clear, recorded decisions about whether a child who is absent from school, or attending part-time, is receiving a suitable education or whether school is accessible to the child.
66. The Council should provide us with evidence it has complied with the above actions.

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Decision

67. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman