Summary: The Council failed to ensure Y received suitable alternative provision or the specialist provision in their Education, Health and Care (EHC) Plan between September 2024 and July 2025 when they were unable to attend school. It also delayed issuing Y’s amended EHC Plan by 23 weeks after an annual review in November 2024. The Council has already apologised to Mrs X however it should make a payment to recognise the injustice caused to Y and Mrs X.

The complaint

1. Mrs X complained the Council failed to ensure her child, Y received a suitable education or the specialist provision in their Education, Health and Care (EHC) Plan after they stopped attending school in July 2024.
2. Mrs X said Y lost out on education and social development which caused distress and uncertainty.

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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)
5. 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

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

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What I found

Relevant law and guidance

EHC Plans

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. 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. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)

Annual Reviews

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. Where the council proposes to amend an EHC Plan following a review, 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.

Alternative provision and the Section 19 duty

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. 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.

What happened

13. Mrs X has a child, Y who has special educational needs and an EHC Plan. Y’s EHC Plan in place during 2024 shows they attended a mainstream secondary school which was named in section I of the Plan. The EHC Plan set out the specialist provision Y was entitled to in Section F of the Plan which included:
• 20-30 minute weekly social group intervention.
• Visual prompts and support in class.
• Structured tasks each day.
• Small group work each day including for emotional support work.
• Regular sensory movement breaks.
14. Records show Mrs X told the Council Y had stopped attending school in July 2024 and did not return in September 2024 when they were due to begin year 9. She therefore requested an early annual review of Y’s Plan. Mrs X said the distance to Y’s school was too great which had impacted on Y’s health.
15. The school held an annual review of Y’s EHC Plan in November 2024. Records of the review note that Y was not attending and that Mrs X wanted a change in placement to a specialist school. The Council said it received the annual review paperwork the following week.
16. In January 2025 the Council began sending consultations to new proposed schools and made referrals for alternative provision for Y.
17. Mrs X complained to the Council in February 2025. She said Y had received no education in year 9 because they were unable to attend school. She complained no alternative provision was in place or work being sent home by the school.
18. The Council responded to Mrs X and said it was aware of Y’s difficulties attending school and acknowledged they had been without provision for some time. The Council accepted this fell below standard and apologised. It said it was actively looking for alternative settings for Y.
19. Mrs X was unhappy with the Council’s response and wanted compensating for Y’s lost education.
20. The Council responded to Mrs X and said it was continuing to look for alternative provision. It said it would consider compensation after looking at Y’s attendance records.
21. Mrs X remained unhappy and complained to us.
22. Since complaining to us the Council secured some alternative provision for Y from late April to July 2025. This consisted of three x three hour sessions of maths and English a week, nine hours in total.
23. In August 2025 the Council issued Y’s amended final EHC Plan following the November 2024 annual review. The Plan named a special school in section I which Y began attending in September 2025.

The Council’s response to us

24. The Council said it acknowledged Y did not attend school between September 2024 and April 2025 but said it put alternative provision in place from April 2025 before naming a new school in Y’s Plan. The Council further accepted annual review delays.
25. The Council offered to pay Mrs X £1800 to recognise Y’s loss of education between September 2024 and April 2025.

My findings

26. The Council was aware Y had stopped attending school in September 2024 and has accepted fault in that it failed to put appropriate alternative provision in place for them until late April 2025. That was fault and meant Y lost out on both education and the specialist provision in their EHC Plan, which the Council had an ongoing legal duty to secure. While the Council put some maths and English provision in place from April until July 2025 this was not a broad curriculum and neither did it fulfil the provision set out in the EHC Plan. We welcome the Council’s acceptance of fault and its apology to Mrs X however £1800 is not sufficient to remedy the missed education and specialist provision over a whole school year. I have made an increased recommendation to acknowledge the injustice caused to Y below.
27. Y’s annual review was held in November 2024 which meant it should have issued an amended final Plan by mid-February. It did not issue the amended Plan until August 2025 which was a delay of 25 weeks and fault. It caused Mrs X frustration and uncertainty around whether Y could have started at their new school earlier had the Council consulted with the school and amended the Plan in good time.
28. We have made recent service improvement recommendations with this Council through other investigations we have carried out which resulted in us finding similar faults. This includes the Council carrying out training to staff around its alternative provision duty and about annual review duties and timescales. Given this I have not made any further recommendations and we will continue to monitor the Council through our casework.

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Action

29. Within one month of the final decision the Council agreed to pay Mrs X a total of £4200 to recognise Y’s loss of education and the specialist provision in their Education, Health and Care (EHC) Plan while they were unable to attend school during the 2024/2025 academic year. This payment includes the injustice caused to Mrs X by the delayed annual review process.
30. The Council should provide us with evidence it has complied with the above actions.

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Decision

31. I find fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman