The Ombudsman's final decision
Summary: Mrs X complained the Council failed to complete an Education Health and Care needs assessment for Y within statutory time limits and failed to make alternative provision available to him when he was out of school. The Council was at fault for delay and for not making alternative provision available to Y, causing uncertainty and frustration and meaning he did not receive the education he was entitled to. The Council has agreed to apologise, make a payment to recognise the injustice and act to prevent recurrence.
The complaint
Mrs X complains the Council failed to complete an Education, Health and Care (EHC) needs assessment for her son, Y within statutory time limits. Mrs X also complains the Council failed to make suitable alternative provision available for Y when he was out of school. Mrs X says this caused real distress and means Y missed out on education he was entitled to.
The Ombudsman’s role and powers
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) 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) The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6) 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) 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.
Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
If someone has, or could have appealed to the Tribunal, the law says we cannot investigate any matter which was part of, connected to, or could have been part of the appeal. As Mrs X had the right to appeal the content of Y’s EHC Plan, including the named school and special educational provision to the Tribunal, I have not investigated the content of Y’s EHC Plan.
We cannot usually investigate complaints about events that took place more than 12 months before they were brought to the Ombudsman. We can only exercise discretion to look back further if there are good reasons to do so.
Mrs X first brought her complaint to the Ombudsman in August 2025, meaning events that took place before August 2024 have been raised late. However, as the delay in raising a complaint was due to the Council not completing Y’s EHC needs assessment when it should have done, I have exercised discretion to look back to March 2024.
We also cannot usually investigate complaints unless we are satisfied the Council has had a chance to look into them first. This includes events that are linked to or ongoing from the complaint that has been brought to us.
As the Council provided Mrs X with its final response to her complaint in August 2025, I have only investigated up to that point. If Mrs X is unhappy about anything that has occurred since August 2025, she would be free to raise a new complaint about this to the Council.
Any mention below to events that took place before March 2024 or after August 2025 are for reference only.
How I considered this complaint
I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
EHC needs assessment A child or young person with special educational needs (SEN) may have an 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.
On receiving a request for an EHC needs assessment, a council must decide whether an assessment is necessary. As part of an EHC needs assessment, a council must seek advice from the parent, head teacher of the school, and from any other professionals, including an Educational Psychologist (EP).
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 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 a Council decides to assess a child’s EHC needs, they must gather information from relevant professionals, who must respond within six weeks; If the Council decides not to issue an EHC Plan, it must explain this within 16 weeks from the date of the request.
If it decides to issue an EHC Plan, the Council must then send a draft plan to the child’s parents, giving them 15 days to comment; and 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.
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).
Section 19 duty Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013) We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
Out of school, out of sight? published July 2022 Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.
What happened I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything said and submitted, this is not intended to be a detailed account of what took place.
Y was on roll at School A, however following multiple instances of suspension, in March 2024, School A moved Y to a pupil referral unit (PRU) as alternative provision. This was intended as a temporary measure, but Y refused to attend.
On 15 March 2024 the Council received a request to assess Y’s EHC needs.
The Council considered this request and wrote to Mrs X on 16 April 2024 to confirm it would complete an EHC needs assessment for Y.
Y remained on roll at School A but still refused to attend the PRU.
On 5 July 2024, the Council missed the 16-week deadline to let Mrs X know whether it had decided to issue an EHC Plan for Y.
On 2 August 2024 the Council missed the 20-week deadline to complete the EHC needs assessment and issue an EHC Plan for Y.
The Council wrote to Mrs X on 6 November 2024 to confirm it would issue an EHC Plan for Y. The Council then sent a draft plan to Mrs X on 13 February 2025.
On 27 May 2025, nine months after the deadline to do so, the Council issued a final EHC Plan for Y, naming School B. However, Mrs X says she did not receive the final EHC plan until 20 June 2025.
Mrs X then appealed the content of the EHC Plan to the Tribunal.
Mrs X complained to the Council as she said it had failed to complete the EHC needs assessment in statutory time limits and had failed to arrange suitable alternative provision for Y while he was out of school. Mrs X said Y had never engaged with the PRU and he had now missed around four school terms of education he was entitled to.
The Council provided its final response to Mrs X’s complaint in August 2025. The Council agreed it had failed to meet statutory deadlines when assessing Y’s EHC needs. The Council apologised for this and offered to pay Mrs X £900 in recognition of the delay, calculated at £100 per month of delay. However, the Council said a place at a school it deemed to be a suitable setting remained available to Y throughout that time.
In response to our enquiries the Council has said Mrs X was aware of Y’s temporary move to the PRU and attended a meeting to discuss the process of this move. The Council has said it took Mrs X’s attendance at this meeting to mean she agreed the PRU was the right setting for Y.
Analysis The Council initially received a request to assess Y’s EHC needs on 15 March 2024. The Council informed Mrs X it would complete an EHC needs assessments and set out the next steps but missed the deadline by which to decide whether it would issue an EHC Plan for Y. This is fault and caused uncertainty for Mrs X and Y, which is injustice.
If the Council had completed the EHC needs assessment in line with statutory time limits, Y’s EHC Plan would have been finalised by 2 August 2024. However, the Council did not finalise Y’s EHC Plan until 27 May 2025, around nine months after the deadline to do so. This is a considerable delay which caused significant uncertainty and frustration for Mrs X, as well as frustrating her rights to appeal to the Tribunal. The delay also created uncertainty around whether Y was missing out on special educational provision he would have been entitled to between August 2024 and May 2025. This is injustice.
However, the Council has already offered to pay Mrs X £900 in recognition of the injustice caused by the delay in completing Y’s EHC needs assessment. I find this to be a suitable remedy in the circumstances and in line with the Ombudsman’s guidance on remedies so I would not ask the Council to take further action here.
Mrs X has said she did not actually receive the EHC Plan until 20 June 2025. The Council has said this is not correct and it was issued to her on 27 May 2025. Even if I were to find the Council at fault for the additional period of delay, it is likely I would say the additional injustice was minimal and would be unlikely to result in a further award anyway. I say this because Mrs X appealed the EHC Plan within the time limit to do so and the Tribunal is then responsible for considering the content of it.
From the start point of my investigation in March 2024, Y was no longer attending School A and refusing to attend the PRU. From that point the Council was under a Section 19 duty to arrange suitable alternative education for him. This process is separable from the EHC needs assessment process and is the responsibility of the Council, not School A.
I have seen no evidence the Council acted to assess what level of education would have been suitable for Y, arrange for any Section 19 provision, or review whether his ability to access education had increased. This amounts to fault.
The Council has said alternative provision was available for Y through the PRU, but it has provided no evidence to show how it considered whether this was suitable. It also has not provided any evidence to show how it kept this under review or how it further considered its Section 19 duty after Y refused to attend the PRU. This amounts to fault.
The Council has said School A arranged provision at the PRU as a temporary measure and that Mrs X attended a meeting prior to the move which suggested she agreed the PRU was the right setting for Y. However, this is not sufficient for the Council to discharge its Section 19 duty as it must retain oversight and control to ensure its duties are fulfilled and I have seen no evidence that it did this. This amounts to fault.
As a result of these faults, Y missed out on educational provision he was entitled to between March 2024 and the end point of my investigation in August 2025, approximately four school terms, which is injustice.
Action
To address the injustice identified above, the Council should carry out the following actions within one month: Provide Mrs X with a written apology for the injustice caused by the failure to complete Y’s EHC needs assessment within the statutory time limits and the failure to properly consider its duty to implement Section 19 support for Y.
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 the £900 it had previously offered her in recognition of the delays in completing Y’s EHC needs assessment and issuing a final EHC Plan for him.
Pay Mrs X £4,000 in recognition of the failure to provide Section 19 provision for Y between March 2024 and August 2025. This is calculated at £1,000 per term of missed provision.
Remind staff of its duties under law and guidance to provide alternative provision when a child of statutory school age is out of school. The council should share a copy of our focus report ‘ Out of school…. Out of sight?
’ and our final decision with the reminder.
The Council should provide us with evidence it has complied with the above actions.
Decision I find fault causing injustice. The Council has agreed actions to remedy injustice.
Investigator's decision on behalf of the Ombudsman