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 daughter. She also complained the Council failed to provide the provision in her daughter’s EHC Plan and has failed to arrange appropriate alternative educational provision. We found the delays in the EHC needs assessment process are fault. As was the failure to ensure D received a suitable education between June 2023 and February 2025. These faults have caused Mrs X and D 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 daughter.
2. Mrs X also complained the Council has failed to provide the provision in her daughter’s EHC Plan and has failed to arrange appropriate alternative educational provision for her daughter when she 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. 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)
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. 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. 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)
8. 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

9. 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.
10. 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 July 2023 when Mrs X requested an Education Health and Care needs assessment.
11. 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)
12. 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.
13. 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.
14. In this case the Council issued a final EHC Plan on 14 February 2025 and Mrs X appealed to the SEND Tribunal. I am unable to consider events since the Plan was issued in February 2025.

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How I considered this complaint

15. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
16. 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

17. 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.
18. 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:
19. 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.
20. 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 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.
22. 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)
23. 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

24. 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.
25. 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.
26. 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.
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’s daughter, D attended a mainstream school. In June 2023 the school contacted the Council to raise concerns about D’s attendance. D was not attending school due to anxiety and in recent weeks her attendance had dropped to 50%. The school said its Inclusion Hub had met with Mrs X several weeks ago to make adaptations to its provisions to support D to access school. This had had a negative impact and her attendance had dropped further.
30. The school also told the Council Mrs X had contacted her GP who had medically signed D off school. The school asked for the Council’s input and support. There is no record of the Council’s response.
31. In July 2023 Mrs X requested an EHC needs assessment for D.
32. The Council confirmed on 7 September 2023 that it would carry out a needs assessment. It told Mrs X it would decide whether or not to issue an EHC plan by 19 November 2023 and if a plan was needed it would aim to issue this by 17 December 2023.
33. In September 2023 D’s school requested section 19 alternative provision for D. The Council’s section 19 medical panel considered the request in October 2023 and declined to provide alternative provision due to a lack of medical evidence. It recommended access to a member of the education keyworker team to support a gradual transition back to school.
34. In February 2024 Mrs X complained about the delay in completing the EHC needs assessment.
35. The Council completed the needs assessment and told Mrs X on 1 March 2024 it had decided D needed an EHC Plan. The Council then responded to Mrs X’s complaint on 6 March 2024. It explained it had received an unprecedented number of requests for EHC assessments over the last 18 months which had resulted in delays. The Council said there was a national shortage of Educational Psychologists (EP) and the Council did not have enough in Devon to meet the increased demand.
36. It said EP advice was a legal necessity and the Council could not complete the needs assessment until it had received this advice. The Council confirmed it now had the EP advice and would endeavour to progress D’s case as quickly as possible.
37. The Council issued a draft Plan on 14 March 2024.
38. The records of a TAF meeting in March 2024 note that D’s school considered the funded allocated under D’s EHC Plan was too low and that the school could not meet D’s needs. The records also show Mrs X said D was no longer able to go out or do anything and needed alternative provision as soon as possible.
39. In June 2024 Mrs X and D’s school made a further request for Section 19 alternative provision. The Panel declined the request in early July 2024 on the basis there was a referral for an EHC Plan in place. The Panel felt D had longer term needs than would typically be manged through the medical panel and that the EHC Plan was a more appropriate avenue for additional support. It suggested contact with the SEND statutory team to discuss more appropriate provision.
40. The Council issued a Final EHC Plan in July 2024, naming D’s current school. Mrs X says her personal circumstances were such that she could not appeal to the SEND Tribunal at this stage.
41. In September 2024 D began attending an alternative provision setting for one morning a week, with a view to this increasing.
42. In November 2024 Mrs X arranged for private tuition for D of one hour per week.
43. D’s school held an Annual review of the EHC Plan in January 2025. The review report notes the consensus that D was not ready to reintegrate in to school. And that increased funding would be needed to provide the education D could now access. School had requested funding for three days at the alternative provision and access to tutoring on the other two days of the week.
44. The Council decided to maintain the Plan. The Council then issued an amended EHC Plan in February 2025 to reflect that D would transition to secondary school in September 2025. It did not name a school but specified the type of setting as mainstream school.
45. Mrs X appealed to the Tribunal in relation to details of D’s special educational needs, the provision for these need and the placement/ type of placement.
46. Mrs X also made a formal complaint to the Council in March 2025. She complained about the delay in providing a suitable education for D over the previous two years. Mrs X said D was experiencing declining mental health as she was being denied access to a suitable education. She said D had been ready for more than 1 day alternative provision for almost six months and asked the Council to fund provision five days a week. Mrs X also referred to her earlier complaint about the delays in the EHC Plan process.
47. As she did not receive a response, Mrs X chased the Council the following month. She was unhappy that despite previous complaints and requests there had been no adequate response or resolution. Mrs X asserted the Council had failed to meet its obligations under Section 42 of the Children and Families Act 2014.
48. The Council responded on 12 May 2025. It apologised for the delays in the EHC needs assessment and for any frustration and uncertainty this caused. The Council also confirmed funding was in place and it would action the request for additional funding for D by 30 April 2025.
49. Mrs X remains dissatisfied and has asked the Ombudsman to investigate her complaint. Mrs X has arranged private tuition for D between November 2024 and June 2025 at a total cost of £1800.
50. She has also incurred over £3,000 in legal and advocacy fees to pursue this matter.
51. In response to our enquiries the Council acknowledges it did not meet its legal duties in relation to the EHC Plan process and failed to comply with the statutory timeframes.
52. The Council does not consider there have been any delays in providing alternative provision. It says it worked with D’s school since June 2023 when the head teacher raised concerns about D’s attendance. The Council says that prior to D’s EHC Plan being issued in July 2024, the school was responsible for providing her education
53. It says it considered the school’s request for section 19 provision in October 2023 but this was declined due to a lack of medical evidence to support the request. The Council says the medical evidence provided in November 2023 suggested a gradual reintroduction to school to regain confidence and reduce anxiety levels was appropriate. The Council therefore worked with the school to draw up a plan. The Council provided an Education Key worker, but this only had short term success.
54. When the Council issued a final EHC Plan in July 2024 it says it ensured the school could deliver the provision set out in the Plan by allocating high needs funding from September 2024 to July 2025. It says this funding was agreed in April 2025 and backdated The school commissioned an alternative education provider to deliver the provision.
55. The Council says that following the annual review in January 2025 it increased the funding to enable the school to increase D’s package.
56. The Council says it identified some time ago that the Inclusion and Learning service was not working effectively enough to meet the needs of children and families. It says this was due to a history of silo working, poor or absent management and leadership a d a lack of professional development and accountability measures.
57. It has carried out a huge scale re-design to improve its services. The Council says this particular case is an example of the legacy of ineffectiveness of its systems and leadership. But that this is rapidly changing.

Analysis

58. 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 early September 2023 and told Mrs X, if necessary, it would issue a Plan by 17 December 2023. The Council did not issue a final EHC Plan until July 2024, some seven months later.
59. 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.
60. 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.
61. I also consider there to be fault in the way the Council considered whether it had a section 19 duty to arrange alternative education.
62. The Council was aware in early June 2023 the D was not attending school. D’s GP had medically signed her off school in May 2023. At around the same time a consultant paediatrician said it would not be appropriate to further traumatise D by pressurising school attendance until assessments were complete and could inform approaches to reintegration.
63. Once the Council was aware D was not attending school it should have considered whether it had a section 19 duty to provide suitable alternative provision. There is no evidence the Council considered at this stage whether it had a duty to provide D with section 19 provision. This is fault.
64. When the Council did consider whether it had a duty to provide section 19 provision in October 2023, it declined due to a lack of medical evidence. This is not in line with statutory guidance or the Council’s own policy.
65. Government guidance: Summary of responsibilities where a mental health issue is affecting attendance and Working together to improve school attendance says Councils “must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. Councils must look at the evidence for each individual case, even where there is no medical evidence, and make their own decision about alternative education”.
66. The Council was required to consider D’s individual circumstances including the actions already taken to try and reintegrate D into school. There is no evidence it did so and instead simply declined to provide D with alternative provision due to a lack of medical evidence. This is fault.
67. The Council’s failure to ensure D received a suitable education or the provision set out in her EHC Plan from September 2024 is also fault. D received provision at an alternative provision setting from September 2024. This was arranged by the school and was initially for half a day a week, building to a full day. This is not the equivalent to a full time education and we would expect this provision to be kept under review and increased where appropriate. There is no evidence of any reviews of the provision. The school asked the Council for additional funding to increase this provision in January 2025, but this was not agreed until April 2025 and was not increased to the level requested.
68. The Council’s failure to meet its section 19 duties means that D missed out on a suitable education at the end of Year 5 and for the whole of Year 6. She then received some but not full provision for a further term and a half during the period I am investigating.
69. 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.
70. In the circumstances I consider a payment of £6,000 for the failure to provide an appropriate education between June 2023 and July 2024 would be appropriate. With a further payment of £1,000 for the failure to provide a full time education and the provision in D’s EHC Plan between September 2024 and February 2025.
71. In considering a suitable remedy I have taken account of the fact Mrs X arranged for additional tuition to supplement D’s education from November 2024. Between November 2024 and 14 February 2025 Mrs X incurred tuition fees of £585. I consider the Council should reimburse these costs.
72. 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) 
73. 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.

74. The Council has agreed to:
• apologise to Mrs X and D for the delays in the EHC assessment process and not providing a suitable education between June 2023 and February 2025. 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 £6,000 in recognition of D’s missed education between June 2023 and July 2024. Mrs X should use this for D’s educational benefit as she sees fit.
• pay Mrs X £1,000 to recognise that D only receive a partial education and did not receive the provisions in her EHC Plan between September 2024 and February 2025. Mrs X should use this for D’s educational benefit as she sees fit.
• reimburse Mrs X the cost of tuition fees between November 2024 and February 2025 in the sum of £585.
• pay Mrs X £400 to recognise the frustration, distress and uncertainty the delays in the EHC assessment process caused her.
75. 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

76. 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