Summary: The Council has acknowledged that it took too long to issue a final Education Health and Care Plan for K, and to review the Plan. It also has acknowledged that it did not communicate with K’s mother, Ms X properly, or always deal with her complaints in good time. I have found that the Council also failed to properly consider its duty to make alternative educational provision when K could not go to school. The Council has agreed to apologise to Ms X and to K, and make a further symbolic payment in recognition of the impact on them of the further fault.

The complaint

1. Ms X complains that the Council:
• Took too long to issue her son’s Education Health and Care (EHC) Plan following her request in October 2022;
• Failed to provide her son with an education when he could not go to school due to his special needs and health from July 2022 to December 2023;
• Failed to deliver the EHC Plan provision or provide an education when her son could not go to a new school from January 2024 to July 2025;
• Failed to complete the annual review or issue the amended EHC Plan on time; and
• Failed to communicate with her properly about what was happening.
2. Ms X says that the Council’s failings have meant her son has missed education and they both have been caused distress and frustration, and her health has deteriorated.

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The Ombudsman’s role and powers

3. 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)
4. 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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How I considered this complaint

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

The law and guidance

EHC Plan process

8. 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. 
9. 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: 
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• 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).
10. 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. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

Alternative educational provision

11. 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.
12. 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)
13. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
14. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

What happened

October 2022 to January 2024

15. In October 2022, Ms X applied for an EHC Plan because her son, K, needed support in school. The Council agreed to assess K’s needs.
16. By January 2023, K stopped going to school as he was unable to cope without the right support. Ms X told the school that she would educate K at home.
17. The Council had agreed to issue an EHC Plan for K and it should have issued the final Plan by 3 March 2023. However, the Council did not send Ms X the draft EHC Plan until July 2023, this was nearly 23 weeks later than the legal timeframe. The draft EHC Plan was based on K returning to school as he and Ms X both wanted him to do so.
18. In August 2023, the Council sent Ms X suggestions for approaches by which K could return to school from home education. However, Ms X rightly pointed out that these did not take account of his special educational needs.
19. In September, the Council chased Ms X for her response to the draft EHC Plan, but she had not received this and so in October, the Council reissued the draft Plan. It issued the final EHC Plan in December 2023 naming a new school for K. The Council had taken around 40 weeks too long to issue the final EHC Plan.
20. From September 2023 onwards, Ms X had complained to the Council about the delays in the EHC Plan process and that the Council had not provided any alternative educational provision while K was waiting for the Plan. In April 2024, Ms X added that the EHC Plan was not working and K could not return to school.
21. The Council drafted a response to Ms X’s complaints. In the draft letter the Council apologised that it had taken too long to issue the final EHC Plan and that its communication with Ms X had not been good enough. It also said that its earlier response to her complaints did not acknowledge the full impact of its failings. The Council said that Ms X could have appealed the contents of the final Plan to a tribunal if she had not agreed it would meet K’s needs. As K had not been able to return to school, Ms X could request an emergency review of the EHC Plan.
22. In the draft complaint response letter, the Council acknowledged that its delays had caused Ms X distress and put her to time and trouble. It offered to pay Ms X a total of £100 in recognition of this. The Council also offered to pay Ms X £2,400 in recognition that K had missed 2.5 terms of support he would have been entitled to had it issued the EHC Plan on time.
23. The Council failed to send the draft letter and did not respond to the complaints until December 2024. It apologised that the complaint response was nearly a year overdue and offered to pay Ms X an additional £150. By this time Ms X had complained to the Ombudsman.

January 2024 to July 2025

24. K started at the new school named in his EHC Plan, but could not carry on. He stopped going to school in January 2024. K tried a part-time timetable in school, but this was not successful and by March he could not manage to return to school at all.
25. In September 2024, the school offered K a part-time home tutor, but Ms X says a tutor never came.
26. The annual review of the EHC Plan was due in November 2024. Ms X says she asked the school for a review, and she understood that the school had chased this with the Council. The review meeting eventually took place in January 2025. The Council should have issued its decision of whether it would maintain, amend, or cease the EHC Plan within four weeks. However, when the Council failed to do this, Ms X again complained to the Council.
27. The Council responded to Ms X’s complaint. It said that the review had taken place at the end of January. It also explained that the school had not passed the review paperwork to the Council until April. Ms X pointed out that the Council had not made a decision so the review was not complete. The Council issued a decision to amend the EHC Plan on 2 May 2025. It issued the new final EHC Plan in June 2025.
28. This EHC Plan described that K was unable to attend school due to his anxiety and he is electively home educated. It did not name a school in the Plan but said that the Council will provide a robust transition package to support K’s return to education. If Ms X disagreed with the EHC Plan she had the right to appeal this to a tribunal.
29. The Council said that it had not realised that K was out of school again until April 2025 when it received the review paperwork from the school.

Is there fault by the Council causing injustice to Ms X and K?

October 2022 to January 2024

30. The Council has acknowledged that it took too long to issue the EHC Plan. It took nearly 40 weeks too long to do this. It also did not communicate with Ms X properly. The shortcomings caused Ms X distress and frustration and meant that K did not get the support to which he was entitled.
31. I have not investigated this further, because the Council has offered Ms X a remedy in line with our guidance on how to remedy injustice. This covers the injustice caused to Ms X and K (including that he missed out on his educational provision) from October 2022 to January 2024.

January 2024 to June 2025

32. The Council failed to complete the annual review of the EHC Plan on time. The review should have happened by December 2024. The school met with Ms X to review how the EHC Plan was working but the Council did not complete the review process until 2 May 2025 when it issued its decision to amend the EHC Plan. This means the Council completed the review 21 weeks late.
33. The Council was wrong to tell Ms X that the review had happened because the school had held the review meeting. It should have acknowledged that the review was not complete until the Council had decided whether to amend, maintain or cease the Plan, and it had failed to do this.
34. The Council has since acknowledged that it completed the review late and that it should have chased the school sooner after the review meeting.
35. The review was particularly important because K had been unable to return to school. The review led to a new EHC Plan (Issued June 2025) that said that K was home educated again but that there would be support for him to return to a school. This would have been essential to K returning to school or, if Ms X did not agree with the provision set out in the Plan, she could have appealed this, but only when the final plan was issued. The delays by the Council meant that Ms X could not appeal as soon as she needed to, and caused Ms X and K distress and uncertainty.
36. Ms X has complained that the Council should have made alternative provision for K when he could not go to school from January 2024. The Council’s position is that it did not know that K was not able to go to school until the school sent the review paperwork in April 2025, and its records show that Ms X had again elected to home educate him. The Council does not have to make provision for a home educated child even if he has an EHC Plan.
37. Ms X says that she and the school both told the Council that the part time timetable had not worked and K was not in school. Ms X says she sent the school medical evidence that K was too ill to attend school and she understood that the school was requesting alternative educational provision from the Council.
38. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
39. It is more likely than not that the Council did know or should have known that K was not in school earlier than April 2025. Ms X added it to her complaint in April 2024; and the school had offered K a part time timetable as a temporary arrangement and later, a home tutor. Also K had started a new school following a period of absence, and so the Council might have checked that the new provision was working.
40. Even if the Council did not know that K was out of school and the provision was not supporting him, had it completed the annual review on time, the Council would have been aware that K was not in school from November 2024 at the latest.
41. The Council’s failure to identify that K was not attending school sooner, and its failure to consider whether it should make alternative educational provision is fault.
42. The Council says that even if it had known K was not in school, it would not have made alternative provision for him because there was a place available for him and there was funding for the support set out in his EHC Plan. K then became home educated and the Council would not provide an alternative education.
43. I have considered whether, on balance, it is more likely than not that the Council would have refused or accepted that it had a duty to make alternative provision. But having considered this very carefully, I cannot say what its decision might have been. Ms X is left uncertain as to whether it would have accepted it had a duty to make provision before she deregistered him from school and moved him to home education.

The Council’s communication with Ms X

44. The Council has acknowledged that there was fault in its complaint handling and its communication with Ms X. It did not respond to her complaints in good time, and it drafted a response but did not send it until a year later.
45. The Council has identified an issue with not responding to complaints about EHC Plans on time and it has given additional resources to reducing waiting times and improving its service.
46. The Council has offered Ms X £100 and £150 separately in recognition of the frustration and uncertainty its poor communication caused her, and the additional time and trouble it put her to. This is in line with the Ombudsman’s guidance on remedies.

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Action

47. The Council has already completed these remedies. It has:
• Apologised to Ms X for the failings it identified.
• Offered to pay to Ms X £2,400 in recognition that K had missed 2.5 terms of support he would have been entitled to had it issued the EHC Plan in March 2023 in line with the legal time frame.
• Offered to pay to Ms X a total of £250 in recognition of the frustration and uncertainty it caused and the time and trouble it put her to when it failed to deal with her complaints and communicate with her properly.
• Identified that it has failed to respond to complaints about EHC Plans on time and it has given additional resources to tackle this.
48. In addition, the Council has agreed that within one month of the date of this decision it will:
• Apologise to Ms X and if appropriate, to K, for the uncertainty, distress and frustration its further failings caused them.
• Make the payments set out above it has not already.
• Pay to Ms X an additional £500 in recognition of the impact of its failure to complete the annual review on time when K was already unable to attend school, and the uncertainty it caused when it did not consider its duty to make alternative educational provision.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman