Summary: Mrs X complained the Council delayed completing her daughter Y’s Education, Health and Care (EHC) Plan, failed to ensure suitable alternative education when Y was out of school, and gave misleading information about its education duties. We found the Council at fault for delaying the completion of Y’s EHC Plan and for a period when Y missed some of the alternative educational provision arranged for her. This caused uncertainty for Y and Mrs X, delayed their appeal rights, and meant Y missed some educational provision. The Council has already apologised and offered a suitable remedy for the injustice caused.

The complaint

1. Mrs X complained that Cheshire West & Chester Council (the Council) delayed completing her daughter Y’s Education, Health and Care (EHC) Plan, failed to ensure suitable alternative education when Y was out of school, and gave misleading information about its education duties. Mrs X said this meant Y missed suitable educational provision, including full-time education, which affected Y’s wellbeing and caused distress, uncertainty and financial loss to the family.

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The Ombudsman’s role and powers

2. 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)
3. 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. 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)
5. Some parents will incur significant legal and expert 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) 
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)

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What I have and have not investigated

7. I have investigated the Council’s actions from the Tribunal decision in October 2024 until it issued Y’s final EHC Plan in April 2025, including the delay in completing the EHC assessment process and the alternative education provided during that period.
8. I have not investigated the content of Y’s EHC Plan, including the special educational provision or school placement named in the Plan. Mrs X had a right of appeal to the Special Educational Needs and Disability Tribunal (the Tribunal) about these matters and exercised that right. These issues are therefore outside our jurisdiction.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
11. 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

EHC Plan 

12. 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. 

Timescales and process for EHC assessment 

13. 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: 

• 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).

Content of an EHC Plan

14. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

Appeal rights

15. There is a right of appeal to the Tribunal against a council’s decision not to carry out an EHC needs assessment, to not issue an EHC Plan, or about the content of an EHC Plan including the special educational provision specified and the school or placement specified.
16. 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)
17. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started.

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 makes 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.

Arranging person centred provision

19. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
20. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.

Part-time timetables

21. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 

Guide for practitioners

22. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025).
23. Our guidance says that councils should:
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

What happened

24. Following a Tribunal decision in October 2024, the Council agreed to carry out an EHC needs assessment for Y. Around the same time, Mrs X contacted the Council because Y was not attending school and she believed Y was not receiving a suitable education.
25. The Council arranged tutoring at home for Y starting in November 2024 for 10 hours per week. Reports from professionals and Mrs X indicated she engaged well with the provision. However, Mrs X continued to raise concerns about Y’s education and wellbeing.
26. During the EHC assessment process, the Council also sought information from Y’s school and other professionals. Mrs X complained to the Council in January 2025 about delays in the assessment process and her concerns about Y’s education and support. The Council responded at Stage One of its complaints procedure and said the EHC assessment process was ongoing. In late January 2025, the Council decided to issue an EHC Plan for Y.
27. The Council issued a draft EHC Plan in February 2025. It then consulted schools and considered Mrs X's representations about the draft Plan. Y also began attending alternative provision in the form of equine therapy, funded by her school, one day per week. At the same time, her home tutoring was reduced to 8 hours per week to reflect that she was spending one day at equine therapy.
28. Later that month, Y’s tutor became unavailable due to illness. The tutoring agency was unable to provide an immediate face-to-face replacement and instead offered online tuition. Mrs X initially agreed to this arrangement.
29. In March 2025, Mrs X told the Council the online tuition was unsuitable for Y and was causing her distress. The online provision ended and Mrs X raised concerns that Y was not receiving suitable education. She also raised further concerns about delays in the EHC process, communication from the Council and the information she had been given about the Council's duties to provide education.
30. The Council remained in contact with Mrs X, Y’s school and the tutoring agency while it explored alternative arrangements and sought updates about the tutor's return. It also continued progressing the EHC assessment process.
31. In April 2025, Mrs X escalated her complaint to Stage Two. She said the EHC process was overdue and the Council had failed to ensure suitable educational provision was in place after Y’s tutor became unavailable. Around the same time, the tutor’s planned return was delayed and the Council contacted the tutoring provider to request an urgent replacement.
32. The Council issued a final EHC Plan for Y in mid-April 2025. Mrs X then appealed against sections B, F and I of the Plan.
33. The Council responded to Mrs X’s Stage Two complaint in late April 2025. It accepted there had been a delay and apologised. The Council later offered Mrs X £500 in recognition of the delay.

Analysis

34. Following the Tribunal decision in October 2024, the Council was required to carry out an EHC needs assessment and, if appropriate, issue a final EHC Plan within 14 weeks. The Council decided to issue an EHC Plan in late January 2025 but did not issue the final Plan until April 2025.
35. The Council accepted during the complaints process that it did not complete the process within the required timescale. It said delays obtaining advice and staffing pressures contributed to the delay. While I recognise the Council experienced difficulties, these do not remove its responsibility to comply with statutory timescales. The final Plan was issued around 11 weeks late. This was fault. The delay caused avoidable uncertainty for Y and Mrs X and delayed Mrs X's right of appeal against the contents of the Plan.
36. I have also considered whether the Council met its duties under section 19 of the Education Act 1996. The Council arranged alternative provision for Y consisting of home tuition and, from February 2025, equine therapy. When Y's tutor became unavailable due to illness, the Council arranged online tuition and took steps to secure a replacement tutor. It also kept Y's provision under review and considered what she was able to manage at the time. So for most of this period I do not find fault.
37. However, Y was unable to access the online tuition and the Council was unable to provide a face-to-face replacement immediately. As a result, Y missed some of the alternative provision the Council had arranged. This was fault, which caused Y an injustice.
38. Mrs X also said the Council provided incorrect or misleading information about its duties to provide education. I recognise that Mrs X strongly disagreed with the Council's position. However, there is not sufficient evidence to show the Council provided incorrect information or that this caused a separate injustice. I do not find fault on this point.
39. The Council has already apologised and offered Mrs X £500 to recognise the injustice caused. I have taken account of the delay in issuing Y’s final EHC Plan, the period during which Y missed some of the alternative provision arranged for her, and the fact Y continued to receive some educational provision during this period. In the circumstances, I consider the Council’s offer of £500 is a suitable remedy.
40. The Council has previously identified shortcomings in its service and implemented an action plan to improve its EHC processes. I am satisfied it has already taken steps to address the underlying issues. I therefore do not consider it necessary to make further service improvement recommendations.

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Decision

41. I find fault causing injustice. The Council has already taken action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman