Summary: Mrs X complained the Council failed to provide her child, Y with an education in line with their Education, Health and Care (EHC) Plan between May 2024 and January 2025 after Y was permanently excluded from school. She also complained about a delay in holding an annual review of Y’s EHC Plan. The Council was at fault. It failed to provide Y with any education while they were out of school and has delayed holding the annual review, to date, by four months. The Council agreed to make payments to recognise Y’s loss of education and for the distress and uncertainty caused to Mrs X. It will also arrange Y’s annual review without further delay.

The complaint

1. Mrs X complained the Council failed to ensure her child, Y received a suitable education in line with their Education, Health and Care (EHC) Plan between May and December 2024 after they were excluded from school.
2. Mrs X also complained the Council failed to ensure Y’s annual review was carried out in December 2024.
3. Mrs X says Y has missed out on education and social development and this has caused her distress and uncertainty.

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The Ombudsman’s role and powers

4. 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)
5. 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(i), as amended)
6. 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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How I considered this complaint

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

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What I found

Relevant law and guidance

EHC Plans

9. 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 which include:
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.
10. 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.

Annual reviews

11. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews.

SEND tribunal

12. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
13. There is a right of appeal to the Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.

Section 19 Duty

14. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
15. In cases where a child is permanently excluded from a school, the law says that provision must be arranged for the child from the sixth day after the exclusion. This is set out in The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 (SI 2007/1870) and accompanying statutory guidance.

What happened

16. Mrs X has a child, Y who has special educational needs and a diagnosis of Autism. Y has an EHC Plan which was first issued in December 2023. Y attended mainstream primary school (School 1) which was named in section I of the Plan. Section F of Y’s Plan outlined the specialist provision they were entitled to which included:
• Structured daily routines
• Sensory and social skills activities
• Regular breaks when required
• Support from key adults
• A nurturing environment to develop his emotional regulation
17. In early 2024 Mrs X appealed to the Tribunal against the naming of School 1 in Y’s EHC Plan as she believed it could not meet Y’s needs. Records show Y had received various fixed term exclusions during 2023 and into early 2024. Mrs X said Y required a specialist environment and staff at School 1 were too inexperienced to meet Y’s needs.
18. Y continued attending School 1 however in early May 2024 they were permanently excluded. Y did not receive any education during the rest of the 2023/24 academic year.
19. In August 2024 the SEND tribunal issued an adjournment notice which advised the Council to put appropriate interim provision in place for Y during the tribunal process. The notice commented that it was unlikely provision by way of online learning was appropriate.
20. Mrs X complained to the Council about Y’s lack of education and provision since School 1 excluded them. The Council responded at stage one of its complaints procedure in October 2024. It accepted Y had not received provision since their exclusion. It said tuition had been looked at but not put in place. The Council upheld the complaint. Mrs X escalated the matter to stage two.
21. The Council responded at stage two and reiterated that it upheld the complaint and that it was not acceptable for Y to miss out on education.
22. Mrs X’s SEND tribunal appeal concluded at the end of October 2024. The tribunal ordered changes to both section F and I of Y’s EHC Plan to name School 2, a special independent school. The tribunal order noted that Y at the time was still not receiving any education. It took the opportunity to remind the Council to provide education until Y began attending School 2.
23. The Council issued Y’s amended EHC Plan following the conclusion of the SEND tribunal in November 2024. Y began attending School 2 in January 2025.
24. Records show Y’s annual review was due in December 2024 and to date one has not been carried out. Mrs X complained about this in March 2025 and the Council responded in April 2025 upholding the complaint. It said it would contact School 2 to ask it to hold the review as soon as possible.
25. Mrs X remained unhappy and complained to us.

My findings

Y’s lack of education

26. Y was out of education between May 2024 and January 2025. School 1 permanently excluded Y in May 2024 which meant in line with the law the Council should have made alternative arrangements for Y to receive education from the sixth day of their exclusion. The Council accepted it failed to do so which is a breach of its Section 19 duty and fault.
27. As Y had an EHC Plan the Council also had a legal duty to ensure Y received the provision outlined in the Plan. The failure to either put alternative provision in place or find Y another placement following their exclusion meant Y also went without the specialist provision in their EHC Plan during this period. That was fault.
28. The faults meant Y did not receive any education or the specialist provision in their EHC Plan for one and a half school terms. This impacted on both their educational and social development and caused Mrs X distress and frustration.

Y’s annual review

29. Y’s first EHC Plan was issued in December 2023 which means their annual review was due in December 2024. The law says a review must take place within 12 months of the date the EHC Plan was first issued. While Mrs X’s SEND tribunal appeal concluded and an amended Plan was issued in November 2024, a tribunal decision does not restart the clock and a review should still take place. To date the Council has not ensured Y’s annual review has taken place which is delay, so far, of four months. That is fault and is both denying Mrs X the right to discuss Y’s provision at School 2 and delaying a right of appeal to the SEND tribunal which is causing frustration.
30. Since the scope of this complaint we have made service improvement recommendations to the Council in other investigations including:
• Reviewing its procedures for completing annual reviews in a timely manner.
• Training staff to ensure they understand the legal obligations around EHC Plans.
• Training staff and reviewing its guidance around arranging alternative provision for children out of school.
31. Given the above I have not made any service improvements in this case as we will monitor compliance of the above through our casework.

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Action

32. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mrs X and pay her £300 to recognise the distress and uncertainty caused by the Council’s failure to provide Y with an education between May 2024 and January 2025 and for the delay in holding Y’s annual review. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Pay Mrs X £3000 to recognise Y’s loss of education and the specialist provision outlined in their EHC Plan between May 2024 and January 2025.
3. Arrange and hold Y’s annual review.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I found fault causing injustice and the Council agreed to my recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman