Summary: Mrs X complained the Council delayed in completing the Education Health and Care (EHC) assessment process and in issuing a final EHC Plan for her son F. Mrs X also complained the Council failed to arrange appropriate alternative educational provision for F when he became too unwell to attend school. And has failed to provide the provision in F’s EHC Plan. We found the delays in the EHC needs assessment process are fault. As was the failure to ensure F received a suitable education prior to July 2024. These faults have caused Mrs X and F an injustice.

The complaint

1. Mrs X complained the Council delayed in completing the Education Health and Care (EHC) assessment process and in issuing a final EHC Plan for her son F.
2. Mrs X also complained the Council has failed to provide the provision in F’s EHC Plan and failed to arrange appropriate alternative educational provision for F when he became too unwell to attend school.

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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. 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.
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 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)
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. 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)
9. 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

10. As set out above we expect people to come to us within 12 months of them thinking the Council has done something wrong. As Mrs X contacted us in September 2025 we would generally on consider events since September 2024.
11. We have discretion to consider events outside this 12 month timeframe if there are good reasons for doing so. We have taken account of Mrs X’s circumstances and in this instance we have exercised discretion to consider events since February 2024 when the Council agreed to carry out an Education Health and Care needs assessment.
12. 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)
13. This means that if a 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.
14. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
15. In this case the Council confirmed it would maintain rather than amend F’s EHC Plan on 22 May 2025 and Mrs X appealed this decision to the SEND Tribunal. I am unable to consider events since May 2025.

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How I considered this complaint

16. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
17. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Education, Health and Care (EHC) Plan

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 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:
20. 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.
21. 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.
22. If the council decides 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.
23. 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)
24. There is a right of appeal to the Tribunal against a council's:
• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• 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;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

Alternative provision

25. 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.
26. 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.
27. 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.

What happened here

28. The following is a summary of the key events relevant to our consideration of the complaint. It does not include everything that happened.
29. Mrs X requested an EHC needs assessment for her son F in October 2023. The request stated F’s school attendance was at 60% and he was in a cycle of school avoidance and struggling to attend school.
30. In December 2023 the Council told Mrs X it had decided not to carry out an assessment. Mrs X provided additional evidence to support her requests and appealed the Council’s decision to the SEND Tribunal in February 2024.
31. The Council says it reviewed the decision outside the tribunal process and on 14 February 2024 agreed to complete an EHC needs assessment. The Council told Mrs X it would decide whether to issue an EHC Plan by 23 April 2024. If it decided a Plan was needed the Council would aim to issue this by 21 May 2024.
32. The Council then wrote to Mrs X on 2 May 2024 advising it had completed the assessment and intended to issue an EHC Plan. It said she would shortly receive a draft Plan.
33. In June 2024 Mrs X made a complaint to the Council about the delay in the EHC plan process. She complained that although the whole process should have been completed by 21 May 2024 she had still not received a draft Plan. Mrs X stressed that F was currently unable to attend school and there was no educational provision in placed for him. She complained the Council would not release any funding for alternative provision until the EHC Plan was finalised.
34. The Council issued a draft EHC Plan for F on 8 July 2024 and asked Mrs X for her comments on the Plan. It also asked Mrs X to confirm which school she wanted F to attend.
35. The Council then responded to Mrs X’s complaint on 10 July 2024 and apologised for the delay. It said it had received an unprecedented number of requests for assessments over the last 18 months which had resulted in delays. It was working to overcome this challenge. The Council said there was a national shortage of Educational Psychologists (EPs) and the Council did not have enough EPs in Devon to meet the increased demand.
36. In addition there was a delay in writing EHC Plans due to staffing challenges, which the Council apologised for. It said it was working as quickly as possible to progress all outstanding cases in date order.
37. The Council noted it had shared the draft Plan on 8 July 2024 and Mrs X now had 15 days to respond.
38. On 15 July 2024 the Council issued a final EHC Plan naming F’s current school.
39. As F was unable to attend school, in September 2024 the school commissioned home tuition for F. This was initially for two hours twice a week, with the plan to increase to three hours sessions. Mrs X says it took six months for F to form a relationship with the tutor but this now works well.
40. F’s school held an annual review of F’s EHC Plan in March 2025. The review report recommended the Council amend F’s Plan as his needs had changed significantly. The school said it needed a significant increase in funding and wanted to look at a package of Education Other Than at School (EOTAS) or an appropriate special school.
41. The review noted the tuition was going well and said the school would like to introduce sessions with an alternative provision centre once funding was agreed and F was able to leave the house.
42. Mrs X made a further formal complaint to the Council in late March 2025 about the delay in providing a suitable education. She asked the Council to approve the funding request so that F’s provision could continue. Mrs X said the current finding would run out by Easter and he would be left with no provision.
43. The Council responded on 12 May 2025 and confirmed it was actioning the request for additional funding for F. It said there was funding in place and any agreements or requests for additional funding would be actioned by 30 April 2025.
44. On 22 May 2025 the Council told Mrs X it did not intend to make any changes to F’s EHC Plan. It would maintain the Plan until the next annual review.
45. Mrs X has appealed this decision to the SEND Tribunal.
46. Mrs X has also asked the Ombudsman to investigate her complaints. Mrs X says F currently receives six hours tuition each week. As this is not sufficient she has had to pay for additional tuition to supplement it since July 2025. She would like the Council to reimburse the cost of this additional tuition. F also now has funding for an alternative provision centre two days a week although it will take time for him to be able to fully engage with this.
47. In addition Mrs X has had to pay for a solicitor to assist her in appealing to the SEND tribunal.
48. In response to our enquiries the Council acknowledges it did not meet its legal duties in relation to the EHC Plan process. It says the delay occurred because of an increase in demand for its statutory services and a delay in writing draft Plans.
49. The Council says once the EHC Plan was issued it provided high needs funding to the school to secure the provision set out in the Plan. The school supported F with a long term plan of alternative provision. The Council noted the school commissioned six hours provision from September 2024 and in September 2025, it provided additional funding for an alternative provision centre.
50. The Council says that if it had offered F section 19 provision at this stage it would have clawed back the funding from the school and put similar support in place. The Council considered it was better for the alternative provision to be overseen by the school who knew F well. It says there would have been no benefit to F if it had offered section 19 provision.
51. However the Council has confirmed it has no records of any decision making regarding its section 19 duties or consideration of F’s absence from school prior to July 2024. It says alternative provision was in place from October 2024 and an Education Welfare Officer was involved from that point onwards.

Analysis

52. The Council’s failure to complete the EHC needs assessment and issue a final Plan in accordance with the statutory timeframes is fault. The Council agreed to carry out an EHC needs assessment in February 2024 and told Mrs X, if necessary, it would issue a Plan by 21 May 2024. The Council did not issue a final EHC Plan until almost 2 months later on 15 July 2024.
53. It is also of concern that although the Council must allow Mrs X at least 15 days to respond to the draft Plan, in this instance the Council allowed only eight days.
54. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here is fault.
55. The delay in completing the needs assessment and in issuing a final EHC Plan caused Mrs X frustration and uncertainty and put her to unnecessary time and trouble. I consider the Council should make a symbolic payment to recognise the frustration and distress Mrs X has experienced.
56. I also consider the Council was at fault in failing to ensure F received a suitable education prior to July 2024.
57. The Council would have been aware from Mrs X’s request for an EHC needs assessment in late 2023 of F’s difficulties in attending school. The records provided also show an Education Welfare Officer was involved by that stage and that Teams Around the Family meetings were taking place. Once the Council was aware F was not attending school it should have considered whether it had a section 19 duty to provide suitable alternative provision.
58. The Council has acknowledged there are no records to show it considered whether it had a duty to provide F with section 19 provision prior to July 2024. This is fault.
59. I consider it more likely than not that but for this fault the Council would have provided alternative provision/ arranged for the school to commission home tuition for F much earlier than September 2024. The Council’s failure to meet its section 19 duty means that F missed out on a suitable education for a term and a half during the period we are investigating (from February 2024 to July 2024).
60. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment of between £900 to £2,400 per term to acknowledge the education they have missed and help them to catch up. In determining an appropriate level we will take account of factors such as:
• The severity of the child’s SEN as set out in the EHC plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
61. In the circumstances I consider a payment of £1,350 for the failure to provide an appropriate education for a term and a half between February 2024 and July 2024 would be appropriate.
62. Mrs X has incurred expenses in arranging additional tuition for F since July 2025. However, as these costs were incurred outside the timeframe I am investigating I am unable to make a recommendation that the Council reimburse Mrs X.

63. Mrs X has also incurred significant legal fees during the appeal process. We cannot investigate this as the Tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 
64. The Council has explained following similar cases investigated by the Ombudsman the action it is taking to meet the demands in its SEND service and to reduce the backlog in the EHC needs assessment process. This includes ongoing recruitment of EPs and SEN case officers. It has also published a new Section 19 policy. I therefore have not recommended further service improvements. We continue to monitor the Council’s ongoing work to reduce the backlog through our casework.

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Action

65. The Council has agreed to:
• apologise to Mrs X and F for the delays in the EHC assessment process and not providing a suitable education between February 2024 and July 2024. 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.
• pay Mrs X £1,350 in recognition of F’s missed education between February 2024 and July 2024. Mrs X should use this for F’s educational benefit as she sees fit.
• pay Mrs X £200 to recognise the frustration, distress and uncertainty the delays in the EHC assessment process caused her.
66. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Decision

67. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman