Summary: Mrs X complained the Council did not issue her child’s Education Health and Care Plan within statutory timescales and did not provide suitable education. She says this caused her child a loss of education and caused her avoidable stress. We find the Council at fault which caused injustice. The Council has agreed to make a symbolic payment to Mrs X and take service improvement action.

The complaint

1. Mrs X complains about the Council’s handling of her child, Y’s, education. Specifically, she complains the Councill:

1. Did not issue the Education Health and Care (EHC) Plan within statutory timescales;
2. Did not consider an Education Other Than At School package;
3. Did not provide Y suitable education;
4. Did not communicate using Mrs X’s communication preference; and
5. Handled her complaint poorly.

2. Mrs X says this caused Y a loss of education which impacted her emotional wellbeing. Mrs X says it has also caused her unnecessary and avoidable stress.

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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. 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)
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. 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)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. 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)
9. 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)
10. 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.

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What I have and have not investigated

11. Mrs X complains about matters which began in 2023. She brought her complaint to us in October 2025. As I have explained above, we cannot investigate a late complaint unless there are good reasons. I consider it was reasonable for Mrs X to make her complaint sooner. For this reason, I have investigated from October 2024 as this is 12 months before Mrs X brought her complaint to us.
12. Mrs X complains the Council did not name an Education Other Than At School (EOTAS) in the EHC Plan. As I have explained above, we cannot investigate a matter if a tribunal has or could have considered it. Mrs X used her right to appeal to the Tribunal and so I will not investigate part b of the complaint.
13. I have investigated parts a, c, d and e of the complaint from October 2024.

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How I considered this complaint

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

What should have happened

Statutory timescales (part a of the complaint)

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 the 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: 

• 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who should respond within 15 calendar days. 

19. As part of the EHC needs assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).

Suitable education (part b of the complaint)

20. 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.
21. 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.
22. 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

23. Before October 2024, Mrs X told the Council Y was not attending school and submitted a request for an EHC assessment. It decided to assess Y and made a referral for Educational Psychology advice. It gave some advice to the school to support Y’s engagement.
24. The Council agreed to Mrs X’s request to contact her in writing only.
25. In January 2025, Y’s school contacted Mrs X to arrange some alternative provision. It offered online English and maths classes supported by a SEND professional. Mrs X declined the offer.
26. In February, the Council received the Educational Psychologist report.
27. In March, the Council decided to issue an EHC Plan for Y.
28. In April, the school told the Council Y had not attended for more than a year.
29. In May, the Council called Mrs X with an update. It issued the finalised EHC Plan which named a mainstream school for Y. Mrs X appealed the sections describing Y’s needs, their education provision and the name of the educational placement to the Tribunal. She also made her formal complaint to the Council.
30. In June, the Council issued its first stage complaints response. It apologised for the delay issuing the finalised EHC Plan and accepted it was delayed by five months. It explained the national shortage of Educational Psychologists had contributed to the delay. It told Mrs X it is not responsible for the education of children who do not have EHC Plans. It also apologised to Mrs X for any distress caused by contacting her by phone, and acknowledged her preference was recorded as written contact only.
31. In August, the Council issued its final complaints response. It offered Mrs X a financial remedy of £200 to recognise the distress and uncertainty caused by its delay issuing the final EHC Plan.
32. In September, the named school offered Y a specialist mentor and a referral to a therapeutic service. Mrs X declined the offer. She told the school she would contact them if she identified a suitable provision for Y.

Analysis

Statutory timescales (part a of the complaint)

33. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council should have issued its final EHC Plan by January 2025 and did not do so until May 2025. This is a delay of five months.
34. Councils must seek Educational Psychology advice as part of an EHC assessment. This should be received within six weeks of the council requesting it. The Council made its referral for Educational Psychology advice without delay. The advice should have been received in early November. The Council received it in February, which is a delay of three months. I consider the Council’s overall delay in issuing a finalised EHC Plan was contributed to by the delay in receiving the Educational Psychology advice, which was out of the Council’s control. I find this is service failure as I have set out in paragraph four above, which frustrated Mrs X’s right to appeal, which is injustice.
35. The Council apologised to Mrs X for the delay and offered her a symbolic payment of £200 to remedy the distress and uncertainty caused. This amount is not in line with our published guidance on remedies and so I consider it does not sufficiently remedy the injustice caused to Mrs X.
36. The Department of Education recently lifted an Improvement Notice it had previously issued the Council’s SEND department. The Department of Education lifted this notice after it assessed the improvements the Council had made to its SEND services. One of the key areas focussed on in the Council’s improvement plan was the timeliness of issuing EHC Plans within statutory deadlines. I am satisfied the Council has taken appropriate action to address this matter and so a further service improvement recommendation at this time is not proportionate.

Suitable education (part c of the complaint)

37. The Section 19 duty says 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. I am satisfied the Council was aware Y was not accessing education before October 2024. There is no evidence the Council gave consideration to its section 19 duty when the school told the Council Y had not attended for a significant period of time. This is fault.
38. I do not consider this fault caused Y to lose provision they would have otherwise accessed but for the fault. This is because Mrs X did not consider the specialist online tuition, therapeutic provision or mentoring offered by the school be suitable for Y. I consider that, on a balance of probabilities, even if the Council had accepted a Section 19 duty and offered alternative provision, it is unlikely Mrs X would have considered it to be suitable.
39. In its first stage complaints response, the Council told Mrs X it is not responsible for the education of children who do not have EHC Plans. I consider the Council’s view indicates a wider issue and a lack of consideration to its Section 19 duty. For this reason, I consider service improvement action to address this matter is appropriate and proportionate in this case.

Communication preference (part d of the complaint)

40. Mrs X requested the Council communicate with her in writing. The Council met her preference except for the one occasion it contacted her by telephone. This is not significant enough for a finding of fault. In any case, the Council apologised to Mrs X for any distress it caused, which I consider to be an appropriate remedy.

Complaint handling (part e of the complaint)

41. Mrs X complains there were factual errors in the Council’s stage one complaint response. The Council accepted the errors Mrs X identified and noted this in writing in its final complaint response. It decided the errors identified did not impact its overall findings. This is not significant enough for a finding of fault. In any case, the Council documented the errors and apologised to Mrs X for the distress and frustration caused, which I consider to be an appropriate remedy.

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Action

42. Within four weeks of my final decision statement, the Council has agreed to:
1. make a payment of £500 to Mrs X to remedy the avoidable distress and uncertainty caused by its five-month delay issuing the finalised EHC Plan. In arriving at this figure, I have considered our recently introduced tariff used in cases where delay has been caused by the national shortage of educational psychologists. This equates to £100 per month of delay. It the Council has already made the £200 payment it offered to Mrs X, it should deduct this from the recommended amount.
2. tell us what action it will take to ensure it gives due consideration to its Section 19 duty when it becomes aware a child is not accessing school.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

44. 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