Summary: The Council failed to properly review Y’s Education, Health and Care (EHC) Plan when they began struggling to attend school. It also failed to consider whether it should provide Y with a suitable alternative education and how it would secure the Special Educational Needs provision in Y’s EHC Plan. This caused Y to miss five terms of alternative provision and caused Miss X uncertainty, distress and time and trouble. The Council has agreed to apologise and make a payment to Miss X to recognise the impact if its failings.

The complaint

1. Miss X complained the Council failed to provide a suitable alternative education for her child, Y, when they stopped attending school. Miss X also complained the Council failed to secure the special educational provision in Y’s Education, Health and Care Plan while they were out of school. Miss X says Y missed out on an education because of this. Miss X wants the Council to apologise, provide Y with a suitable education and compensate her for the impact of its failings

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.
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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What I have and have not investigated

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. Miss X complained to the Ombudsman in March 2025. Part of Miss X’s complaint is late because it concerns council actions that happened more than 12 months before she complained to us. I have decided to investigate events from November 2023. Failures in the Council’s complaint handling mean I do not consider it reasonable for Miss X to have complained to us sooner than she did.
8. Part of Miss X’s complaint is linked to Y’s school transport arrangements. We have already investigated these in a previous investigation. I have not investigated Y's school transport.

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How I considered this complaint

9. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
10. Miss 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

The Law

Education, Health and Care (EHC) Plans

11. 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.
12. 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)  
13. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Reviewing EHC Plans

14. 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 cease to maintain 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) 
15. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
16. 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.
17. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Alternative Provision

18. 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.
19. 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)
20. 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)

The Council’s complaint process

21. The Council operates a two-stage complaint process, a stage one investigation and stage two review. The Council says it will respond to stage one complaints within 20 working days of accepting the complaint. If a person escalates their complaint to stage two the Council will first decide if a stage two review is appropriate and inform the person in writing. When the Council accepts a stage two review request it says it will respond in 25 working days

What happened

22. Miss X’s child, Y, had an EHC Plan issued on 7 December 2022. The plan named a school for Y which they started attending a few days later. In late 2023 Y’s attendance at school deteriorated and they began refusing to attend school. The Council’s records refer to an emergency annual review in November 2023 but there is no evidence of a decision following any review at this time.
23. The school placed Y on a part time timetable which involved outdoor activities at a different site. In early 2024 Y was offered a placement with an alternative provider. However, the Council said it would only provide Y with transport to Y’s school. Miss X said this would not work as Y would not go near the school site. As an interim measure the school said a member of staff would visit Y and take them to activities elsewhere as well as providing work at home.
24. In June 2024 the Council’s SEND panel considered a request from a council officer over how to secure Y’s SEN provision with Y absent from school. The panel decided Y had a placement that met their needs and the school had arranged alternative provision to support Y. Miss X continued to tell the Council that Y’s school could not meet their needs. She said Y did not want to use the alternative provision and the school was not consistently visiting Y to take them on activities. The Council said Y’s school would need to arrange an annual review to confirm it could not meet Y’s needs.
25. An interim annual review took place in July 2024, but again no decision was issued following the review. The Council says this was because Y’s earlier annual review remained open and this review was to check on Y’s progress. By August 2024 Y’s attendance was under 4%. The Council says it became aware Y was no longer attending school in September 2024.
26. The Council contacted Miss X in October 2024 to check on Y’s part time timetable. Miss X said there had been no contact from the school. The Council again told Miss X to ask the school for an emergency annual review. Miss X said she had done this earlier in October and received no response. Miss X complained to the Council on 22 October 2024.
27. The Council visited Miss X in November 2024 and responded to her complaint on 3 December 2024. It said the school had held an annual review which identified no changes to Y’s EHC Plan. It said the school had offered Y alternative provision. The Council said it had asked the school to carry out another annual review. Miss X remained unhappy and asked the Council to consider her complaint at stage two of its complaint process.
28. An annual review took place on 10 January 2025. The review paperwork recorded the date of the last annual review as 7 December 2022. The Council proposed amending Y’s EHC Plan and exploring an alternative setting for Y. The Council began consulting with potential schools for Y.
29. Miss X made another complaint to the Council on 20 January 2025. She said Y’s school was not suitable. The Council registered Y’s complaint at stage one of its complaint process and responded on 17 February 2025. It said Y’s school had offered a home tutor in Autumn 2023. It said it had reviewed Y’s needs at annual reviews but accepted it had not uploaded these reviews onto its online system. Miss X asked the Council to consider her complaint at stage two.
30. The Council responded at stage two of its complaint process on 5 March 2025. It said no changes were identified following the July 2024 annual review and the school had offered alternative provision. It said there was no evidence to support Miss X’s view it had not supported Y. Miss X remained unhappy and complained to the Ombudsman.
31. In July 2025 was removed from the school roll. The Council agreed to an Education other than at school (EOTAS) package for Y from September 2025. The Council issued an amended final EHC Plan for Y on 27 October 2025 specifying the EOTAS provision.

My findings

Annual reviews

32. Y began struggling to attend school in 2023. When a child has an EHC Plan, and they begin struggling to access education, we would expect the Council to arrange an interim review of their EHC Plan. The records show Y’s school held an emergency review in November 2023, which also coincided with when their annual review was due.
33. It is not clear what, if any, involvement the Council had in this review. The review process is only complete when the Council issues its decision to amend, maintain or cease to maintain the EHC Plan. There is no evidence of the Council issuing any decision after this review. This was fault.
34. Throughout 2024 Y’s attendance deteriorated further. Miss X continued to contact the Council and a further interim review was recorded in July 2024. Again, there is no record of any decision from this review. This was fault.
35. The Council eventually recorded an annual review for Y on 10 January 2025 and noted the last review as taking place over three years previously. On balance I am satisfied the Council had little to no involvement in Y’s reviews between November 2023 and January 2025. In the absence of any review paperwork or decision there is no evidence of the Council being aware of Y’s needs to inform any changes to Y’s EHC Plan.
36. To make matters worse, when the Council did review Y’s EHC Plan in January 2025 it should have issued an amended EHC Plan within 12 weeks. The Council did not issue Y’s amended EHC Plan until 27 October 2025, a delay of 29 weeks. This was fault.
37. The Council failed to properly carry out Y’s annual reviews in November 2023 and July 2024. It then delayed issuing an amended EHC Plan for Y after the January 2025 review. This caused Miss X uncertainty over whether Y’s EHC Plan remained suitable and denied Miss X her right of appeal to the SEN Tribunal. It also caused Miss X time and trouble pursuing the Council over the matter.

Y’s education

38. When a child with an EHC Plan is absent from school the Council has two duties. It should consider whether it needs to provide the child with a suitable alternative education and how it will secure the provision in their EHC plan during their absence. The evidence shows the Council did neither.
39. The Council says it only became aware of Y’s absence in September 2024. This is not supported by the evidence. The Council was in contact with Miss X over Y’s reluctance to attend school in early 2024 when Miss X made it clear Y would not return to school. Its SEN panel then considered Y’s absence in June 2024. The panel said it was satisfied Y’s school met their needs, despite no record of the Council reviewing the suitability of the placement at the previous review. In October 2024 Miss X made it clear to the Council the school was not delivering alternative provision.
40. The Council missed several opportunities to consider whether it needed to arrange a suitable education for Y, and how it would secure the provision in Y’s EHC Plan. This was fault. On balance I am satisfied Y was not meaningfully attending school or receiving any substantive alternative provision from November 2023. The Council had an opportunity to act on this from January 2024. The Council failed to secure the provision in Y’s EHC Plan between January 2024 and September 2025 and failed to ensure Y received suitable alternative provision. Because of this, Y missed out on five terms of education.
41. We typically recommend between £900 and £2400 per term in recognition of lost provision. The figure can be lower when considering any educational provision made during the period and whether additional provision can remedy some or all of the loss.
42. While Y was not attending school or receiving alternative provision, I am satisfied they would have struggled to engage with any full-time education during this time. Considering this, Y’s age, and the provision in their EHC Plan, I have recommended £1200 per term for the missed special educational provision and alternative provision, in line with our Guidance on Remedies. A total payment of £6,000.

The Council’s complaint handling

43. Miss X complained in October 2024. The Council responded in 30 working days, slightly outside of its expected timescale of 20 working days. Miss X immediately asked the Council to consider her complaint at stage two of its complaint process. There is no record of the Council responding to this request. This was fault.
44. When Miss X complained again in January 2025 the Council issued another stage one response and then a stage two response. While it issued these responses within its published timescales it failed to respond to Miss X’s first stage two request. This caused Miss X additional time and trouble pursuing her complaint.

Service improvements

45. Following a previous investigation the Council committed to updating its guidance around its duties to consider suitable alternative provision and secure the provision in a child’s EHC Plan. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Action

46. Within one month of the final decision the Council has agreed to:
1. Apologise to Miss X for the uncertainty, distress and time and trouble caused by its failure to property carry out Y’s annual reviews, delay issuing Y’s amended final EHC Plan and failure to respond to Miss X’s first stage two request. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
2. Pay Miss X £6,000 to recognise the impact of Y missing five terms of education and the provision in their EHC Plan between January 2024 and September 2025.
3. Pay Miss X £500 to recognise the uncertainty, distress and time and trouble caused by its failure to properly carry out Y’s annual reviews, delay issuing Y’s amended final EHC Plan and failure to respond to Miss X’s first stage two request.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman