Summary: Mrs B complained that the Council, in respect of her son Mr C delayed in completing an Education, Health and Care (EHC) assessment and issuing a final EHC Plan and failed to consider its section 19 duty to make alternative provision between October 2023 and March 2024. We found fault in the actions of the Council. The Council has agreed to apologise, make a symbolic payment and improve its procedures for the future.

The complaint

1. Mrs B complained in respect of her son, Mr C, that Devon County Council (the Council):
• delayed in issuing a final Education, Health and Care (EHC) Plan after her request in July 2023 and again following a Tribunal Consent Order on 11 March 2025;
• issued a final plan in October 2025 without naming a placement; and
• failed to consider its section 19 duty to make alternative provision, after Mr C stopped attending school in July 2023.
2. Mrs B says this has caused Mr C to miss out on essential education and caused her significant distress.

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The Ombudsman’s role and powers

3. 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).
4. 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.
5. 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)
6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
7. 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)
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)

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What I have and have not investigated

9. I have decided to exercise discretion to consider the period from September 2023 to 11 March 2024 regarding the consideration of alternative provision for Mr C once he stopped attending school. Even though this period is more than 12 months before Mrs B complained to us, she was delayed in complaining due to her appeal to the Tribunal about the Council’s refusal to issue an EHC Plan following an EHC needs assessment. This process took a year. I consider this is a good reason for not complaining to us sooner.
10. I cannot investigate the period of the appeal which lasted from 21 March 2024 to 11 March 2025.
11. I have investigated the period from 11 March 2025 (when the consent order was agreed) to 9 October 2025 (when the final EHC Plan was issued and Mrs B’s right of appeal arose). I have not investigated alternative provision for this period as Mr C was over the age of 16 by this point and the statutory duty no longer applied.

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How I considered this complaint

12. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
13. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
14. 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

Special educational needs

15. 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. 

EHC needs assessment 

16. 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);  

17. Following completion of an EHC needs assessment, if the Council decides an EHC Plan is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal that decision.

Section 19 duty

18. Section 19 of the Education Act 1996 says that the council 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. This duty applies from the statutory school starting age (the term after a child reaches 5) up to the age of 16.

Establishing a section 19 duty

19. 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.
20. 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.
21. 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

EHC needs assessment

22. Mr C has health conditions and started to struggle to attend school. Mrs B requested the Council carry out an EHC needs assessment on 15 July 2023. By this point her son Mr C had stopped attending school and was under 16 years of age. He attended school three times in the autumn term of 2023. The Council was aware by 17 October 2023 that Mr C had not been attending school since the end of the summer term. On 18 October the School agreed with the Council and Mrs B a reintegration plan, but this was not successful and Mr C did not attend again.
23. Mrs B arranged private online maths tuition at home twice a week and some gym sessions with a mentor. Prior to his attendance difficulties he was a bright and able student on target to achieve good GCSE results.
24. The Council received the educational psychology report for the assessment in December 2023. This confirmed he was not attending school at all. On 21 March 2024 the Council decided not to issue an EHC Plan. Following unsuccessful mediation Mrs B appealed to the Tribunal.

Consent Order (11 March 2025) onwards

25. On 11 March 2025 the Tribunal issued a consent order as the Council had agreed to issue an EHC Plan, by 9 June 2025.
26. Between 21 May and 25 June Mrs B contacted the Council eight times by telephone and email asking when the draft EHC Plan would be issued. She also formally complained on 5 June. On 25 June the Council said a new case officer would be appointed. On 30 June the new caseworker (Officer X) emailed Mrs B. Mrs B replied saying that as mainstream provision was not suitable for Mr C currently due to his previous traumatic experiences, she had an Education Other Than At School (EOTAS) package waiting.
27. The Council issued a draft EHC Plan on 3 July and said it would have to consult with some mainstream provisions before agreeing to look at an EOTAS package. Mrs B said that one college had already said it could not meet need and the other was likely to be unsuitable as it was a busy mainstream environment. She said Mr C wanted to pursue outdoor learning options.
28. On 11 July Mrs B submitted her comments and Officer X discussed the case during a telephone call. She suggested a different alternative provision for Mrs B and Mr C to visit.
29. Mrs B made another formal complaint on 18 July.
30. On 22 July Mrs B said they had visited the provision, but it would not be suitable now, as it was too formal a setting resembling a school which Mr C could not manage. The setting had said it did not think it could meet Mr C’s needs until he had received a period of EOTAS to deal with his current levels of extreme anxiety and then a six-week engagement package may work.
31. At the end of July Officer X suggested a package of online tuition in conjunction with an alternative outdoor provision. She suggested Provision Z. Mrs C agreed to visit this and said at present Mr C’s preference was a nearer outdoor setting, Provision Y. Officer X agreed to consult with this one also.
32. On 6 August the Council responded to her complaint. It simply acknowledged that the EHC Plan was still in progress, waiting for a package of EOTAS to be finalised and it was not able to provide a satisfactory outcome at present. It said it hoped communication had improved since the new caseworker had been allocated. It apologised for the delay in responding but not for the delay in issuing the EHC Plan.
33. On 19 August after Mrs B chased, Officer X said she was currently working on a package of 15 hours of online tuition to start in September.
34. Mrs B chased the Council on 7 September as nothing was in place. Officer X replied on 9 September saying she had arranged 12 hours of tuition over four days with one day at Provision Z. She said transport could be provided Provision Y could not confirm any place until it had resolved funding arrangements for other students.
35. The Council approved 12 hours of online tuition from 12 September until 19 December 2025. However, this was not put in place as Mrs B said the online tuition on its own was not suitable and Officer X was working on the joint plan with an outdoor provision.
36. On 25 September Officer X said she was looking to issue the final plan with no setting named, as EOTAS would be provided initially.
37. On 28 September Mrs B complained to us about the delay in issuing a final plan and putting any provision in place.
38. On 1 October Mrs B said she and Mr C had visited Provision Z and liked it very much. They wanted more of this provision with less of the online tuition. On 8 October Officer X replied saying that transport may not be provided to Provision Z as Mr C was over 16. She was also checking back on the situation with Provision Y.
39. On 9 October the Council issued the final plan with no setting named as EOTAS would be put in place.
40. On 6 December Mrs B appealed to the Tribunal as no provision had been named in the EHC Plan within two months. She also said no educational provision had been arranged beyond the online tuition which Mrs B considered was not suitable on its own to address Mr C’s therapeutic needs.
41. In responding to my enquiries, the Council said there was no evidence of any alternative provision in place for Mr H between September 2023 and March 2024. It said the School not the Council was responsible for putting any alternative provision in place during this period.
42. In respect of the delay in the EHC process, it said that 20 weeks from the date of the assessment request would have been 2 December 2023, but the Educational Psychology report was not received until after this date and the Council then went on to decide not to issue an EHC Plan. From March 2025 it said the delay was due to a lack of capacity and a difficulty in finding a placement that could meet Mr C’s needs.

Findings

Delay in issuing the final EHC Plan

43. The Council was 18 weeks overdue in deciding not to issue an EHC Plan. Even though much of this period was due to the Educational Psychology delay, which was outside the Council’s control, it is service failure, which is still fault. The Tribunal process then took up the next 12 months.
44. After the consent order was issued the Council should have issued the EHC plan within five weeks, by 8 April 2025, but did not do so until 3 July, a delay of over 12 weeks. It has not given a reason for this beyond a lack of capacity and it is clear from the number of times Mrs B tried to contact the Council during this period that there was no progress being made on her case until Officer X was appointed at the end of June 2025.
45. It then took another three months to issue the final plan. The total delay was approximately 40 weeks. This was fault which caused Mr C to miss out on essential educational support for almost a whole academic year and Mrs B much distress and frustration continually chasing up the Council.

Naming a placement

46. As the Council was planning to arrange an EOTAS package the regulations allows it not to name a placement in Section I of the EHC Plan. This is also a matter for the Tribunal now Mrs B has appealed.

Alternative Provision

47. The Council was aware through the assessment request in July 2023 and again in October and December 2023 that Mr C (who was under 16) had not attended school since July 2023. There is no evidence the Council considered the reasons for the extended absence, whether the education on offer from the School was suitable and accessible or whether its section 19 duty was triggered.
48. The Council said the responsibility for alternative provision between September 2023 and March 2024 lay with the School. I disagree. The section 19 duty lies with the Council, not the School. While the Council can delegate that responsibility to another organisation to deliver, it still remains responsible for ensuring the provision is suitable and accessible. The Council was aware by October 2023 that Mr C was not attending school and that the reintegration plan was not working, but there is no evidence the Council considered the suitability of that provision given that Mr C was not attending at all. This was fault which caused uncertainty to Mrs B as to whether Mr C could have benefitted from some alternative education at that stage.
49. By March 2025, Mr C was over 18 and so the section 19 duty no longer applied.

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Action

50. In recognition of the injustice caused to Mr C and Mrs B, I recommend the Council within one month of the date of my final decision:
• apologises to Mr C and Mrs B and makes a symbolic payment of £2000 in total:
1. £500 for the uncertainty regarding alternative provision between October 2023 and March 2024; and
2. £1500 for the delay in completing the EHC assessment and issuing a final EHC Plan.
51. I also recommend within three months that the Council:

• reviews and amends its policy on alternative provision to ensure it accurately reflects its legal duty and includes a clear decision-making process to follow once it is aware a child is out of school for an extended period; and
• provides training and/or guidance to relevant staff in the education department on the Council’s section 19 duty to ensure they understand and implement it correctly.

52. The Council has agreed to these recommendations and should provide us with evidence it has complied with the above actions.

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Decision

53. 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