Summary: We find fault with the Council for the delay in issuing Child Y’s EHCP and its communication with Mr X. We do not find fault with the Council for its consideration of its section 19 duties to arrange alternative provision. The Council has agreed to apologise and pay a financial remedy to reflect the delay and the distress caused.

The complaint

1. Mr X complains

• The Council delayed issuing his son’s EHCP by 50 weeks. The Council told Mr X the wrong deadlines and provided reassurance the EHCP would be completed on time, but failed to do so.
• The Council failed to provide his son with suitable and accessible full time education, and failed to arrange alternative provision when the Council became aware that he was being unelectively home educated.
• The Council wrongly told Mr X the only way to speed up the EHCP process would be to issue legal proceedings against Council, costing Mr & Mrs X unnecessary legal fees.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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)
3. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

5. I considered evidence provided by Mr X and the Council, as well as relevant law, policy and guidance.
6. I invited Mr X and the Council to comment on my draft decision, and considered any comments received.

Back to top

What I found

Legislation and guidance

7. 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.
8. 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)  
9. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

10. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s Special Educational Needs (SEN), the special educational provision specified, the school or placement, or that no school or other placement is specified in their EHC plan.
11. The courts decided if someone has appealed to the Tribunal, 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 if a child or 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. 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;
• support in an EHC plan that is not being delivered to the child or young person, and we decide the cause is not connected to an appeal that has, or should have, happened; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to, or is not a consequence of, a matter that was, or could have been, part of an appeal to the Tribunal.  

14. If the council refuses an assessment, but then reverses its decision without an appeal being submitted, and we find fault in the original process, we may decide the statutory timescale should run from the request for assessment and not from the date the decision was reversed.

Alternative provision

15. Section 19 of the Education Act 1996 says councils must arrange suitable alternative educational provision when it finds 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.
16. 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.
17. 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.
18. If a 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.
19. If a child has an EHC plan, the council also has an ongoing duty to arrange the support guaranteed by it. This might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
20. Councils should also think about the steps needed to reintegrate the child back into their usual school setting, through ongoing conversations with relevant professionals and the parents.
21. 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).
22. Our guidance says councils should:

• consider all the reasons for a child’s absence from school and make a written evidence-based decision about whether or not it will arrange alternative education provision.
• as a matter of good practice, it should communicate this decision to parents. Where a council decides not to arrange alternative education, it should tell parents the expectations about school attendance, and the potential consequences for continued absences.
• where it decides to arrange alternative education, it must ensure the provision meets the individual needs of the child. As a matter of good practice, it should 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:
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) to ensure issues are dealt with promptly by the right people, and any complaints are identified and responded to under the relevant policy.

23. What happened
24. Mr X requested an Education, Health and Care Needs Assessment (EHCNA) for his child, Child Y in March 2024. The Council first refused to assess. Mr X requested mediation. The Council then overturned its previous decision not to assess, and agreed to assess on 8th July 2024.
25. The Council at first told Mr X it intended to complete the EHCNA process within timeframe. However, it then provided an update in October to say there was a delay in the EHCNA because of a lack of educational psychologists.
26. In September 2024 the Council were made aware that Child Y was not in school. He had been due to start at secondary school but his parents had rejected the offered place. Between October 2024 and November 2024, the Council had discussions with Mr X, Child Y’s previous school and its electively home educating team. These conversations recorded that Child Y’s school had believed the rejection of the secondary school place meant that Child Y was being electively home educated. Mr X told the Council Child Y was not electively home educated, but that they did not feel the allocated school was suitable for him, and so had rejected the place. Mr X requested alternative provision in the interim of the EHCNA being completed, until a school would be named in Child Y’s EHCP.
27. On 2nd December, the Council said it did not have a section 19 duty and that Mr X had chosen to electively home education.
28. Mr X told the Council Child Y was not being electively home educated, and that this was an error on the records from Child Y’s previous school. He reminded the Council that Child Y was not in education. The Council referred the matter to its Child Missing Education team to discuss Child Y being out of school and what next steps to take. It was agreed that Mr X should be encouraged to enroll Child Y in a mainstream placement for the time being.
29. In January 2025, Mr X instructed a solicitor to write to the Council about the delay in the EHCNA. The solicitor asked the Council to provide alternative provision for Child Y. The Council said that as the EHCNA had not been completed, it was not in a position to offer Alternative Provision. It said that a mainstream placement remained available to Child Y if his parents wished to enroll him in a mainstream school while the EHCNA was completed.
30. The Council received the EP report for Child Y’s EHCNA in February 2025. The EP report said Child Y required significant support to reintegrate into education. The Council contacted Mr X and offered to support with sourcing support to help Child Y with reintegrating.
31. The Council issued a draft EHCP on 22nd April 2025, and used the draft EHCP to send consultations to schools.
32. The Council issued an initial final EHCP on May 2025, which named a type of setting for Child Y as “mainstream school”.
33. The Council issued a revised final EHCP on 14th July 2025, naming a specialist placement.
34. Mr X complained to the Council. In his complaint he said

• He sought an EHCNA in March 2024, the EHCP should have been issued by 31st July 2024, but was not issued until 14th July 2025, causing a 50 week delay.
• Child Y was out of education due to the Council’s delay in issuing the plan.
• Mr X had provided education at home, but this was not elective and only because the Council had refused to source alternative provision.
• The Council had tried to force Mr X into accepting an unsuitable placement for Child Y
• The Council had previously given reassurance it would adhere to the EHCP timescales and therefore a school would be sourced and named in the EHCP within timeframe.
• School previously told the Council Mr X was electively home educating, and it took several emails from Mr X for the Council to accept that he wasn’t.
• The Council gave promises and reassurances the EHCP would be completed to timescale when it wasn’t.
• The Council told Mr X the only way to speed the process up was to start legal proceedings against the Council.
• The response to placement consultations was sent to staff members on long term leave and the Council could not access it.

35. The Council’s final complaint response said

• It recognised the delay in the EHCP and it should have sent a decision by September 2024.
• The delay was caused by a lack of educational psychologists.
• It issued two draft plans in April 2025, with a final plan in May 2025 and an amended version in June 2025, which named a placement for September 2025.
• The Council was satisfied it did not have a section 19 duty as it was not satisfied Child Y could not attend mainstream school. The Council felt there was insufficient justification for keeping Child Y out of school.
• It had offered Mr X mainstream placements, and it was Mr X’s choice to turn these down.
• It recognised there was some miscommunication between the Council and Mr X about whether Child Y was electively home educated, but this was an action of the school and not the Council.
• It agreed it gave Mr X wrong information about the deadline and should not have given reassurance it would be completed on time.
• It had no evidence to say that staff advised Mr X to start legal proceedings against the Council.
• It had not responded to some communication in a timely manner as it went to someone on long term leave.

36. The Council offered Mr X £150 as a symbolic gesture for the delays caused.
37. Mr X remained unhappy and bought his complaint to the Ombudsman.

Analysis

Delay in the EHCP

38. Mr X requested an EHCNA in March 2024. If the Council had agreed to carry out the EHCNA at the time, rather than denying and overturning the decision later on, it would have had to issue the EHCP in July 2024.
39. The Council has said that it believes the statutory timescales apply from July 2024, when it made the decision to assess, and therefore the EHCP should have been issued in November 2024. However, in this case, Mr X did not present any new evidence before the Council overturned its decision and decided to assess. The Council’s new decision to assess was based on the same information that was previously available. Therefore, it is reasonable for the timescales to apply from the point Mr X sought the EHCNA.
40. The Council should have issued the EHCP by 31st August 2024. The Council did not issue a final amended plan until 14th July 2025. This is a delay of 45 weeks and is fault by the Council causing delay and uncertainty about what support Child X would have received if the plan had been issued sooner.
41. I cannot say that if the Council had issued the plan within timescales, that it would have named a specialist placement. It may well have decided then to name a mainstream placement and given Mr X an appeal right if he was unhappy.

Alternative provision

42. I have reviewed the communication between the Council and Mr X about Child Y being out of school, and that Mr X requested alternative provision.
43. I agree with the Council that it cannot be held at fault by Child Y’s previous school incorrectly listing him as electively home educated. Therefore, I have only considered whether the Council had a section 19 duty from the point it was notified Child Y was not being electively home educated on 11th October 2024.
44. The Council has said it offered Mr X mainstream placement choices for Child Y, but these were refused. Therefore, it was of the view that the choice to keep Child Y at home was parental preference, and the Council did not have a section 19 duty.
45. Mr X’s refusal of the allocated school place for Child Y did not automatically create a section 19 duty for the Council. However, it was incorrect to assume that as Mr X had refused the school place, Child Y was being electively home educated. I agree with the Council’s position which was to treat Child Y as a “Child Missing Education” (CME) and refer the matter to its CME team for consideration.
46. The most suitable course of action, in the absence of any evidence Child Y could not attend a mainstream placement, was to offer Child Y a mainstream placement.
47. The Council’s communication to Mr X adheres to our practitioner guidance. It provides a clear explanation about why it does not consider its section 19 duties apply, its expectations about applying for mainstream school and its support for reintegration once a placement was found.
48. The communication between the Council and Mr X’s solicitor shows the Council was of the view that as it had not completed the EHCNA, and had no evidence Child Y could not attend mainstream school. It could not say Child Y needed specialist support or an alternative provision. Therefore, it remained of the view a mainstream placement remained most suitable.
49. I do not find fault with how the Council reached the decision not to provide alternative provision. It has shown how it considered whether the duty applied, its reasoning for declining it, and clearly communicated this to Mr X and the alternatives available to him. I am satisfied the Council properly considered whether it had a section 19 duty to Child Y.

Legal instruction

50. Mr X says a council officer l told him the only way to move forward with the case would be to start legal proceedings against the Council. He says he unnecessarily incurred legal costs as a result.
51. The Council says it has no records of advising Mr X to do this.
52. It is unlikely I could make a finding on this point of the complaint. This is because although there is an email which alludes to the Council knowing Mr X may start legal proceedings, Mr X says the advice was given verbally and not recorded anywhere. There is no way to know what was said during this conversation and whether the Council gave this advice.

Miscommunication

53. Part of Mr X’s complaint is the Council at first told him it could meet the EHCP timescales and a school would be allocated in time.
54. I uphold this part of Mr X’s complaint. He was led to believe the Council would meet the timescales for the EHCP. The Council would have been aware there was a backlog of EP assessments, and it should not have made reassurances where it could not be sure it could deliver.
55. This was fault by the Council, leading to raised expectations and uncertainty on Mr X’s part.
56. There was also fault by the Council in sending out school consultations that were returned to an unmanned inbox. The Council should have had a process in place to oversee consultation responses and alike where the staff sending the requests will be on long term leave.
57. This has caused distress and uncertainty to Mr X.

Back to top

Action

58. Within four weeks the Council agreed to

• Write to Mr X and apologise for the fault identified. The Ombudsman has issued guidance about how to make effective apologies. The Council should have regard for this guidance when apologising to Mr X.
• Pay Mr X £500. This amount reflects the delay in the EHCP and the uncertainty and distress experienced by Mr X and Child Y.

59. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

60. I find fault causing injustice.

Back to top

Investigator's decision on behalf of the Ombudsman