The Ombudsman's final decision
Summary: Mr X complained the Council failed to complete an Education, Health and Care needs assessment for his son within statutory timeframes, and he was not attending school full time. We found the Council at fault with its significant delays and not properly considering its alternative provision duty, causing significant frustration and uncertainty. The Council agreed to apologise and make symbolic payments to recognise the injustice caused. It also agreed to take action to improve its services.
The complaint
Mr X complains the Council delayed significantly and failed to complete an Education, Health and Care (EHC) needs assessment for his son within statutory timeframes. He also says his son did not receive an adequate education during this period. This has caused the family significant frustration, distress and uncertainty during this prolonged period and impacted on his son’s educational progress.
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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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) 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) 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 Mr X referred to a prior agreement from the Council to issue an Education, Health and Care (EHC) Plan in 2023. Mr X complained to us in September 2025. This part of the complaint is therefore late (see Paragraph 4). I will not consider that far back as I have not seen good reasons why Mr X could not have come to us sooner about this earlier period.
I have considered the whole time taken for the EHC needs assessment process. For the part of Mr X’s complaint around his son’s education, I have considered from September 2024 (12 months before coming to us) to September 2025 (when Mr X received the Council’s final response to his formal complaint).
How I considered this complaint
I discussed the complaint with Mr X and considered his views.
I made enquiries of the Council and considered its written responses and information it provided, as well as relevant law, policy and guidance.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Law and administrative background Education, Health and Care (EHC) Plans 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. Parents have a right of appeal to the SEND Tribunal. This is only engaged once a final EHC plan has been issued.
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. 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.
As part of the EHC needs assessment, councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice.
Alternative provision 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.
We issued a guide for practitioners "Supporting children out of school" in October 2025. This outlines good practice on how we expect councils to fulfil their responsibilities to provide education for children who do not attend school full-time. This also includes councils failing to make timely or clear decisions about whether it has a section 19 duty.
What happened – summary of key relevant events Mr X’s son (Y) attended College A. Y stopped attending full time after an incident in early 2024. Mr X said Y was subjected to bullying resulting in his severe emotional distress and anxiety.
EHC needs assessment In March 2024, College A sent an EHC needs assessment request to the Council.
In January 2025, the Council received the EP report.
In September 2025, Mr X formally complained to the Council. Y started College B that day and he still did not have an EHC Plan in place. Later that day, the Council issued a final EHC Plan naming College B.
A few days later, the Council responded to his complaint at Stage 1. It accepted finalising the final EHC Plan took far longer than it should have and it did not meet statutory timeframes. This was due to the shortage of Educational Psychologists (EPs) and a huge increase in demand so it could not manage these requests in a timely way. It apologised and upheld his complaint.
Mr X escalated his complaint. He said Y had not received a full time or structured education, receiving generally one hour a week through an Individual Alternative Education Plan (IAEP). Mr X complained to us.
In late September and October 2025, the Council responded at Stage 2 and Stage 3 respectively. In these responses, it said during this process, Y was on College A’s roll. It would have expected College A to provide an appropriate education, and it could have requested support from the Council if it was not able to do this. It could not locate any support requests from College A about Y’s education. It maintained its previous findings about the significant delays with the final EHC Plan and apologised again. It offered £500 as a symbolic payment. It also outlined several actions it would carry out to improve its services.
Y’s education in the period I am considering Between October 2024 and July 2025, Council case records show an Officer had regular involvement in Y’s case (for the purposes of supporting post-16 education options) and contact with Mr X. They noted Y was under an IAEP as he was not attending College A full time. He was only attending lessons at College A in a specialist subject and had one hour of tuition a week.
The Officer contacted College A a few times to enquire about its provision and if it could offer more. College A said it could not. The Council was part of several IAEP review meetings.
The Council’s response to my enquiries In response to my enquiries, the Council said IAEPs are put in place by schools. Schools would inform the Council termly about children on an IAEP. Where there are concerns, schools can invite the Council to meetings for advice but this is at their discretion. In Y’s case, it placed reliance on College A continuing the IAEP.
Analysis EHC needs assessment The Council received the EHC needs assessment request in late March 2024. If a council decides to issue an EHC Plan it should do this within 20 weeks of a request. In this case, the Council should have done this by mid-August 2024. It did not issue a final EHC Plan until the start of September 2025. This is a significant overall delay of nearly 13 months.
It appears the first 7 months of delay was down to the Council not receiving advice from an EP until January 2025. We recognise there is a national shortage of EPs affecting many areas. We describe this as fault in the form of service failure (see Paragraph 3). After receiving this, we would expect the Council to follow statutory timeframes in the Code to issue a final EHC Plan. This is usually up to eight weeks after the EP report which means the Council could have issued it by the start of March 2025. The Council then delayed issuing a final EHC Plan which took a further 6 months. This latter delay is fault by maladministration.
The faults with delays caused significant frustration and uncertainty for Mr X and Y as they waited excessively longer than necessary to receive a final EHC Plan.
The Council accepted fault, apologised and offered a remedy of £500. This is a positive acknowledgement however; I do not consider this goes far enough to remedy the injustice here. I recommended an amended amount below.
Y’s education During the period I am considering, the Council knew Y was not attending College A full time. It was aware Y was on an IAEP and received limited education. This should have prompted the Council to decide whether it had a section 19 duty.
An Officer did have regular checks in with Mr X about Y, which is positive. But I cannot see the Council, as a whole, considering whether it needed to intervene or secure further provision for Y. The Council should have considered the reasons why Y was not attending, their individual circumstances and any relevant evidence, to decide whether it thought College A remained available and accessible to him. This is fault.
The Council were aware or involved in IAEP reviews, but it appears College A kept Y on the reduced timetable. I cannot see evidence of the Council itself recording how, or why, it was satisfied with what College A was providing, its suitability, and the amounts (especially given it was Y’s GCSE year). This is fault.
The Council placed too much reliance on College A to raise concerns, but it is for the Council to proactively consider its duty when needed. The Council is ultimately responsible for a child’s full-time education if they cannot attend school.
I cannot say, on balance, whether the Council should have put alternative provision in place. This is because that is a decision the Council should have made at the time after considering all the available information. This fault creates significant uncertainty for Mr X as to whether if the Council properly considered it, if it would have made a difference to Y’s situation sooner. This is injustice.
Agreed Action
To remedy the injustice set out above, the Council agreed to carry out the following actions: Within one month of the final decision: Apologise to Mr X and Y (in line with our guidance on making an effective apology ) for the injustice caused by the faults identified; Pay Mr X a symbolic payment of £1,200 total (this is instead of the £500 offered) to recognise the injustice caused to him and Y by the delays with the final EHC Plan; and Pay Mr X a symbolic payment of £350 to recognise the uncertainty caused by its failure to properly consider its alternative provision duties.
Within three months of the final decision: The Council should share a copy of our guidance "Supporting children out of school" with relevant staff. It should identify what lessons it has learned from this case about its alternative provision duties. It should share what action it will take to prevent this in future, including a review of how the Council considers information it receives from schools about children on an Individual Alternative Education Plan.
The Council should provide us with evidence it has complied with the above actions.
Decision I find fault causing injustice. The Council agreed to my recommendations to remedy the injustice caused. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman