Summary: Ms X complained the Council failed to provide her child with suitable fulltime education and special educational provision, and complained about faults in reviewing the Education, Health and Care Plan. There was fault causing injustice. Ms X’s child missed out on education and Ms X and her child suffered distress and inconvenience. The Council has agreed to apologise, improve communication with Ms X about next steps, make symbolic payments and carry out service improvements. The complaint is upheld.

The complaint

1. Ms X complains about the way the Council has managed her child’s education and special educational needs (SEN). Ms X says the Council:
• Failed to provide suitable fulltime education from 2021.
• Failed to provide special educational provision in her child’s Education, Health and Care (EHC) Plan from 2023.
• Failed to respond to a request to hold an emergency review of the Plan.
• Delayed in holding an annual review of the Plan by eight months.
• Failed to respond to communication until a placement broke down.
2. Ms X says that because of the fault:
• Her child has missed out on education and has attended five secondary placements in three years.
• Her child has missed out on forming friendships.
• Her child has become used to part-time education so that reintegration into a school fulltime is now unlikely to be possible.
• She has been unable to work since 2021 due to her child not attending a setting fulltime.
3. Ms X wants the Council to:
• Issue a final amended EHC Plan and find an appropriate placement.
• Take responsibility for the fault and impact this has had.
• Follow the complaint process and stick to timescales.
• Respond to requests for emergency reviews from parents promptly.

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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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
6. 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)
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
8. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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.
10. 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)

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What I have and have not investigated

11. I have investigated from November 2023 when the placement named in Ms X’s child’s EHC Plan closed. I have not investigated any loss of education from 2021 to 2023. Ms X did not raise a complaint at the time, and it is now too late for us to consider this. Ms X also had an appeal right when a final EHC Plan was issued in early 2023 which we would have expected her to use if she was not in agreement with the school named on the Plan.
12. I have investigated the ongoing delay in the EHC process to date, but I have investigated loss of education only up to January 2025 when new alternative provision was put in place. If Ms X is dissatisfied with the current provision I consider she should raise this via a new complaint, so the Council has an opportunity to consider and respond to the complaint in the first instance.

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How I considered this complaint

13. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
14. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
15. 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

Relevant law and guidance

Reviews of EHC plans

16. 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) 
17. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
18. 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 in their EHC Plan;
• amendment to these elements of an EHC Plan.

Alternative provision

19. 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. We refer to this as section 19 or alternative education provision.
20. 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)
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs (SEN) they may have. (Education Act 1996, section 19(6))
22. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
23. Statutory Guidance ‘Alternative Provision’ says placements into alternative provision should always be made with the child’s reintegration back into mainstream education in mind. Where a child has an EHC plan the Council will usually name an educational institution for them to attend. A Council can name an alternative provision in an EHC Plan although this is not common practice. The Guidance says alternative provision should not be used as a substitute for special school provision simply because there is insufficient capacity in local SEN provision.
24. The Guidance says when a suitable placement is identified the commissioner and alternative provision setting should agree the nature of the intervention, its objectives, reintegration and the timeline to achieve these objectives. The provider should set these out in a personalised plan for the child.
25. Regular reviews (at least half termly) between the commissioner and the provider should be built in to monitor progress against objectives. Responsibility for the oversight of the alternative provision used rests with the council or school that commissioned the provision. Alternative provision should offer good quality education equivalent to that provided in a mainstream or special school and aim to achieve good academic attainment particularly in English and Maths. Any part-time education should be reviewed regularly with the aim of eventually increasing up to full-time as soon as the child’s health allows. Where a child in alternative provision is on a part-time timetable, the commissioner and provider should ensure there is a clearly defined plan and timetable in place for when and how the child will return to full-time education.

Key events

26. There has been issues with Ms X’s child’s attendance at school due to anxiety and SEN since 2021.
27. The Council issued an EHC Plan for Ms X’s child in early 2023 which named an independent special school. Ms X says she did not agree with the placement, but she did not appeal the final Plan.
28. In Autumn 2023 this school closed following an inadequate OFSTED judgement.
29. Ms X’s child was then without a school place or alternative provision for three months until they started s.19 education at an alternative provider.
30. Information in the Council’s complaint response shows it had a month’s notice, before the school closed, that a new placement was required. The Council has accepted it was in breach of its s.19 duty to arrange alternative provision for a three-month period but has offered no remedy for this loss of education.
31. Ms X says the placement was only for 15 hours per week / three hours per day, but her child usually only attended for one hour.
32. Ms X says she contacted the Council frequently asking for an emergency review, as the alternative placement was at risk of breaking down, but says she was ignored. Ms X says the provider accepted in Spring 2024 it was only partially meeting needs.
33. The review of the EHC Plan was held in Autumn 2024, eight months late. In its complaint response the Council said this was because the first school had closed and there was difficulty obtaining advice and a venue, but in its stage two response it accepted it had breached statutory timescales.
34. Ms X says the setting did not attend the review meeting. Ms X said at the review her child was bored, there was no structure or routine to the day, and the personalised timetable had not focused on academic work. Ms X’s child had been unsettled by recent changes at the provider, including a new location that required travel. The provider’s advice said Ms X’s child had attended 40% of sessions up to the end of the Summer term. The advice did indicate work had been done on English, Maths and cooking, as well as community visits with a key worker.
35. Ms X wanted a new stable education placement to be identified closer to home. The Council agreed to amend the Plan and find a new placement. It issued a draft amended Plan two months after the review meeting, but six months later had still not received a final plan. After I issued a draft decision, the Council finalised the EHC Plan, giving Ms X a right of appeal.
36. The Council’s stage two response noted it had failed to provide s.19 education for a second period when the placement at the alternative provider broke down (in part to a change in location) in Autumn 2024.
37. Ms X says her child started at a different alternative provider in early 2025, but she again has concerns this may breakdown. Ms X says communication with the case officer is non-existent, for example there was no communication about the delay in the final EHC Plan or about consulting permanent placements. Ms X’s child is due to go into Year 10 in Autumn 2025.
38. The Council’s complaint response in December 2024 acknowledged communication had not been at the level Ms X could expect and said it had put in place a duty officer and extra staff capacity to address these issues.

Analysis

EHC Plan

39. A final EHC Plan was issued in early 2023 so the review was due in early 2024. As the named school closed in Autumn 2023 an emergency review of the Plan was required as the placement needed to be amended. The review did not happen until October 2024, which was eight months later than a regular review was required and eleven months after the placement broke down. This delay was fault.
40. The Council should have issued a final amended EHC Plan within a maximum of twelve weeks of the review meeting in Autumn 2024. It failed to do so until June 2025. This is fault. The delay has left very limited time to consult permanent settings before the Summer holidays.
41. The combination of delays mean Ms X had no right of appeal from early 2023 to Summer 2025, when an appeal right should be provided at least annually. Ms X should have had an appeal right in Autumn 2023 when the placement changed, and again in Winter 2024/5 when the placement changed again. The lack of appeal rights was an injustice.

Loss of education from Autumn 2023

42. The Council has acknowledged a three-month loss of education due to delay providing s.19 education in Autumn 2023.
43. The Council has acknowledged a further period of lost education in Winter 2024, which I understand to be two months.
44. In addition, while 15 hours per week s.19 education was to be commissioned, and there is evidence of some progress up to Summer 2024, there has been no reviews of progress since then that I am aware of. I have also seen no evidence the Council considered the suitability of the s.19 education when it became aware Ms X’s child was only able to access this one hour a day or any consideration of whether the s.19 education was equal to a mainstream education or delivering the special educational provision in full. There has been no progress towards reintegration into a school.
45. Since I issued a draft decision, I am pleased to note the Council has actioned several of my recommendations:
• It has issued an apology for the faults I have identified.
• It has issued the final EHC Plan naming a type of school and given Ms X fresh appeal rights.
• It has met Ms X to update her on schools consulted and discuss the alternative provision.
• It has explained steps it has been taking to improve its oversight of s.19 education.
• It has confirmed going forward that 6 weekly reviews will be held for all pupils on s.19 education.
• It has acknowledged faults in the EHC Plan timescales and explained it is subject to an improvement notice following the local area SEND Ofsted inspection and the progress of its improvement plan is regularly monitored.
• It is due to implement improvements in its data reporting mechanism in Autumn 2025 which will allow it to better track EHC Plan timescales.
46. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure is based on the impact on the child and takes account of factors such as:

• the child’s SEN;
• any educational provision – full-time or part-time, that was made during the period including any special educational provision; and
• whether additional provision can now remedy some or all of the loss.

Complaint handling and communication

47. Despite promises in the Council’s complaint response to issue an amended EHC Plan and improve communication these actions were not delivered until after our intervention. This is fault.
48. Until the recent meeting, Ms X was unaware whether the Council has consulted with any permanent placements since the review meeting in October 2024 or draft plan issued five months ago. This is fault.
49. The family are now in a situation where Ms X considers a further placement is at risk of breakdown and there is a risk it will be too late to secure a place at a permanent setting for Autumn 2025, or for any appeal to be heard in time for the new term.
50. While the Council found fault during its local complaint process it failed to consider a remedy for the impact of this. Doing so may have resolved these aspects of the complaint without the need to escalate them to the Ombudsman.

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Action

Within four weeks of my final decision:

51. The Council will pay Ms X £500 to acknowledge the delay in issuing a final EHC Plan after the October 2024 review.
52. The Council will pay Ms X £1000 for the impact of the fault over nearly two school years on her, including the impact on her own ability to work, additional care she has had to provide, the loss of appeal rights since 2023, and her distress, time and trouble.
53. The Council will pay Ms X on behalf of her child:
• £3000 for the periods (approximately 5 months) when no education was in place.
• £1000 for the uncertainty whether, with regular monitoring of the s.19 provision and consideration of the fact only one hour was being accessed, the Council may have intervened to increase, alter or supplement the alternative provision.
54. The Council will provide us with evidence it has complied with the above actions.

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Decision

55. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman