Summary: We found fault on Mrs X’s complaint against the Council about it failing to issue her daughter an Education, Health and Care plan and carrying out the tribunal order, within statutory timescales. She complains about its poor communication. The Council failed to meet timescales and accepted communicating poorly with her. The Council agreed to send her a written apology, make a symbolic payment, carry out a review, and send reminders to relevant officers to ensure the fault found is not repeated.

The complaint

1. Mrs X complains about the Council failing to:
1. issue her daughter, Y, an Education, Health, and Care plan within statutory timescales;
2. carry out actions within the timescales set out in a tribunal’s order made in January 2025;
3. ensure her daughter received suitable education between March to May 2025; and
4. communicate properly with her.
2. As a result, she missed education during an important school year, her mental health deteriorated, which all caused the family a great deal of stress and financial strain.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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.
7. 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 have and have not investigated

8. I have not investigated any complaint Miss X may have which has a right of appeal to a tribunal (the First-tier Tribunal (Special Educational Needs and Disability). This includes any complaint about: Y’s special educational needs (section B); the special educational provision required to meet those needs (section F); the name of a school or college, and its type, Y was to attend (section I); and

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How I considered this complaint

9. I considered evidence provided by Mrs X, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mrs X and the Council. I considered their responses.

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What I found

Education, Health and Care plans

10. A child with special educational needs may have an Education, Health and Care plan (EHC plan). This 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 education or name a different school. Only the tribunal can do this.
11. Statutory guidance, ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014 (the Regulations) which say 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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent, or the young person, information about their right to appeal to the tribunal.
• 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 issue an EHC plan, the whole process from the point when an assessment was requested, until the final EHC plan was issued, must take no more than 20 weeks (unless certain exceptional circumstances apply).

12. The Code (paragraph 9.42) states there are ‘exceptional circumstances’ where it may not be reasonable to expect councils to comply with the 20 week time limit. This includes: appointments missed by the child; the child is absent from the area for a period of at least 4 weeks; exceptional personal circumstances affecting the child or parents; the closure of the educational institution for at least four weeks which may delay the submission of information from the school.
13. The parents should be informed if exemptions apply so they are aware of, and understand, the reason for any delays. Delays should be kept to a minimum and as soon as conditions that led to the exemption no longer apply, the council should try and complete the process as soon as quickly possible. All remaining elements of the process must be completed within their prescribed periods, regardless of whether exemptions delayed earlier elements (paragraph 9.43)
14. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision, and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
15. There is a right of appeal to the tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment; and
• 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.

Alternative provision

16. Section 19 of the Education Act 1996 says councils must arrange suitable alternative educational provision when it finds 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.
17. 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.
18. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
19. 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.

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What happened

20. Mrs X complains about the way the Council dealt with Y’s EHC plan process.

Complaint a): EHC plan process delays and complaint b): not following tribunal timescales

21. Mrs X is unhappy it took the Council 30 weeks to issue the EHC plan and not the statutory 20 weeks.
22. The tribunal order Miss X says was not followed is dated 9 January 2025. The tribunal heard her appeal against the Council’s decision not to carry out an EHC needs assessment. She said the Council failed to comply with timescales set out in the order.
23. The tribunal findings noted there may be a need for a further/up to date OT assessment and there was a need for a comprehensive assessment by an educational psychology, including a cognitive assessment.
24. It concluded Y needed further assessment to identify whether further special education provision may be needed to allow her to access education in a mainstream setting. The Council must carry out a needs assessment.
25. The appeal was allowed with the order stating the Council ‘must secure an EHC needs assessment for [Y]’.
26. The Council asked for advice from professionals on 15 February. This included a specific request for advice from the NHS Commissioning Occupational Therapy Service. It responded three days later saying Y did not meet its criteria for an assessment but, a referral could be made through the school or her GP if it was felt her needs should be investigated further. This information was shared with Mrs X at the time for her to decide whether to pursue it further.
27. When the tribunal made its order, the Council had to:

• tell Mrs X of its decision to carry out an EHC needs assessment within two weeks of the making of the order (Regulation 44 (2) (b)). This meant by 23 January;

The Council accepted there was a delay notifying Mrs X of its intention to carry out an EHC needs assessment when it received the tribunal order. It said it had to tell her of its intention to do the assessment by 7 February, but only did so on 17 February; and

• having decided it necessary to make provision for special educational provision, send the final EHC plan within 14 weeks of the tribunal decision. This was by 17 April. The final was not sent until 5 August, almost four months later.

28. In response to our enquiries, the Council confirmed:

• it asked for statutory advice on 17 February but argued by this point, there was an exception to the statutory timescales. This was because the educational psychologist told it there was a delay arranging the assessment. This delay was due to trying to find a date convenient to both the school and Mrs X. The proposed date for the assessment could not take place.

I have seen the email the educational psychologist sent the Council. This said he had been trying to discuss the case with Mrs X, which had not proved easy. There was a home visit planned as Y was a non-attender. He was now looking to ‘re-book this’ but did not explain the reason why the home visit failed to take place. The inference was it failed because of Mrs X but there is no information confirming this was the case. A later email explained he had had difficulty arranging an assessment at a time that was convenient for family and the school. The Council was then told an appointment was then arranged for 2 April.

In response to my draft decision, Mrs X provided copies of emails between her and the educational psychologists. The first educational psychologist arranged a meeting for 11 March but cancelled it because of relocation. The second educational psychologist contacted Mrs X a few days later and arranged a meeting for the end of the month. This was cancelled when the educational psychologist became ill. It was re-arranged to a few days later and took place.

• Mrs X told the educational psychologist a cognitive assessment for Y should be done even though this was not part of the order. The educational psychologist contacted the Council about it.
• the evidence was presented to the Assessment and Early Intervention Multidisciplinary Panel in April and the Council decided to issue an EHC plan.
• Mrs X asked the educational psychologist about amendments to the report. The Council received an amended report on 7 April. The educational psychologist asked the Council not to issue the EHC plan until she made amendments to the report.
• a week later, Mrs X raised additional concerns which included concerns about the occupational therapy advice. She also wanted additional advice from a Speech and Language Therapist (SALT).
• the draft EHC plan was issued on 6 June and Mrs X made ‘extensive’ representations which needed a meeting a few weeks later to consider what she sent. This led to some changes to the EHC plan.
• it issued a second draft on 10 July and a final EHC plan on 5 August.
• there were delays actioning the tribunal order, for which it apologised. It did not consider the delay caused her an injustice.

My findings

29. I make the following findings on this complaint:
1. The tribunal order said the Council had to secure an EHC needs assessment for Y.
2. Under Regulation 44 of The Special Educational Needs and Disability Regulations 2014, the Council had to:

• tell Mrs X within two weeks that it will make an assessment; and
• send the final EHC plan to her ‘as soon as practicable’ and in any event within 14 weeks of the date of the order when it decides it is necessary for her to receive special educational provision following the assessment.
3. The Council accepted it failed to tell Mrs X of its decision to make an assessment by 23 January 2025. It delayed doing so by about three weeks. This was fault and caused Mrs X an injustice. She suffered uncertainty and some frustration.
4. I considered the Council’s argument that there were exceptional circumstances for the delay issuing the final EHC plan. On balance, I am not satisfied there was an exception. This is because the evidence Mrs X sent shows the delay arranging an appointment with the educational psychologists was because the first one was relocating, and the second became ill. Neither of these reasons are exceptions under paragraph 9.42 of the Code.
5. I am satisfied, therefore, that the Council missed the 14-week period from the date of the tribunal order to issue the final EHC plan. It should have been issued by 17 April. It was not issued until 5 August, about four months later. This caused her uncertainty, frustration, and delayed her right of appeal.
6. I was not persuaded further amendments and representations that took place were events the law allowed to be considered as exceptional circumstances. This is because these are not reasons listed in the Regulations.

Complaint c): no suitable education

30. Mrs X complains Y received no suitable education between March and May 2025 and the Council wrongly limited section 19 provision to six weeks.
31. In its stage 2 response to Mrs X, the Council explained tutoring through Medical Needs Service was withdrawn when the final EHC plan was issued. This service is intended to provide interim education where a child is unable to attend school because of health needs. It does not run alongside a named school placement.
32. In February, the Council told Mrs X the section 19 provision had been due to end three weeks before, but it extended it because of a school request. The email said ‘S19 is reintegration and does not usually run longer than 6 weeks’. It told her the school would now provide a package of education.
33. This was repeated in other emails sent the following month which said, ‘Section 19 is a short term (6 week) reintegration and commissioning it more than once is rare’ and ‘S19 is 6 weeks’, and ‘Section 19 is a short-term (six week) reintegration program’. She was also told, in response to her query about it continuing until the EHC plan process ended, that, ‘As S19 is not able to stay in for that long’, it would now look to the school to use its budget for Y as section 19 teaching tends to repeat every eight weeks which is of no benefit to Y.
34. The Council claimed it reviewed whether the section 19 provision was still appropriate. This was because responsibility for delivering Section F provision was now that of the school, not the Council. The Council’s role was to support a planned and supported reintegration. This was explained to Mrs X. The problem, according to the Council, was the reintegration planning and support was not implemented by the named school. It accepted this meant Y did not receive consistent education for a period. It did not accept this was a failure by the Council.
35. The Council confirmed Y received section 19 tuition from November 2024 to February 2025. An extra three weeks was offered at the request of Mrs X. There was no evidence from its ending that there was a reason of illness or exclusion for Y which prevented her from attending her named school between March and May 2025. Both it and the school considered Y should attend school and focussed on her reintegration.
36. The school recorded her absence for 20 school days during this period as ‘illness’ as this was reported by Mrs X. There was no evidence she could not reintegrate into mainstream school, and professional services had not said she was unfit to attend either. There were suitable arrangements in place during this period to support her reintegration which included: part-time timetables; meet and greet; daily check-ins; toilet and timeout passes, for example. The school offered her independent work which she could access.
37. The Council confirmed it does not cap section 19 provision but keeps it under review. As it considers Y should attend the named school, it started attendance procedures as Mrs X would not consent to placing her on the school’s roll. Mrs X did not tell the Council she would home educate Y either.

My findings

38. I found the following on this complaint:
1. Section 19 provision lasted from 13 November 2024 to 17 February 2025, a period of about 12 weeks.
2. At this point, the Council decided there was nothing to show Y could not attend school because of illness or exclusion. The Council and the school considered Y could reintegrate back into the school it went on to name in the final EHC plan.
3. The Council was satisfied the school remained responsible for Y’s education with liaison with it. It was satisfied there were suitable arrangements proposed during this period.
4. There was no final EHC plan during March to May.
5. While the Council said section 19 provision is not capped, the perception given by officers in communication with Mrs X was that it was indeed capped. She received several emails telling her it was time limited. She was repeatedly told six weeks was the usual period for section 19 provision and anything beyond that was rare. It is understandable, therefore, for Mrs X to understand the reason the provision was ending was because it had exceeded this six-week period, not that it was no longer needed as a result of a change in Y’s needs, for example.
6. On balance, I found fault on this complaint. This is because the email evidence suggests the reason why section 19 provision ended was because it was usually capped at six weeks. There was no evidence of the Council carrying out a proper review of this provision and considering whether Y still had a need for it, especially when the final EHC plan was not issued for several more months. I am not satisfied the Council has shown evidence that it properly considered whether it should continue section 19 provision during this period.
7. I am satisfied this fault caused injustice to Mrs X and Y. There was uncertainty about whether the decision to end section 19 provision was properly made. In addition, there was also uncertainty about whether provision should have continued during this period but for the fault found. It caused frustration and anxiety.

Complaint d): failure to communicate

39. Mrs X also complained about poor communication by the Council. She complained there were too many officer changes and responses it sent her were clearly ‘standard’ responses.
40. The Council accepted Mrs X had three EHC coordinators due to staff turnover at the start of the EHC needs assessment process. It confirmed since the last coordinator was appointed, there has been consistent communication with Mrs X.

My findings

41. I found fault on this complaint based on the Council’s acceptance about poor communication with Mrs X.
42. I am satisfied this caused injustice to her (uncertainty, frustration, and anxiety).

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Action

43. I considered our guidance on remedies as well as the actions the Council has already taken in terms of its communication handling.
44. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send a written apology to Mrs X for: the failure to tell her of its decision to carry out the EHC needs assessment within two weeks of the tribunal order; not issuing the final EHC plan within the statutory timescales; repeatedly telling her that section 19 provision was limited only to six weeks; failing to show it properly reviewed the situation before ending this provision; not communicating with her properly.
2. Pay £450 to Mrs X for the injustice caused by the identified fault (about 0.5 term x £900).
3. Review why there were failures to keep to the statutory timescales following the tribunal order and act to ensure these failures cannot be repeated in the future.
4. Remind relevant officers that section 19 provision is not limited to six weeks.
5. Remind relevant officers of the need to record how decisions to end section 19 provision were made.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I found fault on Mrs X’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman