Summary: Mrs X complained the Council failed to issue her child’s final amended Education, Health and Care Plan within the statutory timescales, and failed to provide suitable alternative provision when her child was out of school. We find the Council at fault for delays, failing to provide suitable education and special educational provision, and failing to learn from previous complaints. The Council has agreed to apologise, make a payment to Mrs X, and take action to improve its services.

The complaint

1. Mrs X complained the Council did not issue her child, Y’s final amended Education, Health and Care (EHC) Plan within the statutory timescales following their annual review.
2. Mrs X also complained the Council failed to provide Y with suitable alternative provision between September 2024 and April 2025.
3. She says this meant Y missed out on education and caused a negative impact on the family’s mental health and finances.

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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. 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.
6. 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)
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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How I considered this complaint

8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. 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 legislation

EHC Plans

10. 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. 

Maintaining the EHC Plan

11. 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)  
12. 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 the EHC Plans

13. 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) 
14. 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.

Alternative provision

15. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
16. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
17. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
19. 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)
20. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
21. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022

We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

22. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

23. Y has special educational needs and an Education, Health and Care (EHC) Plan.
24. In January 2024, the Council held Y’s annual review.
25. In April, the Council decided to amend Y’s EHC Plan and notified Mrs X of its intention to do so.
26. In July, Y’s mainstream school (School 1) held a meeting with Mrs X. At this meeting, School 1 said it could no longer meet Y’s needs. Mrs X also explained Y would not be returning to school in September because of their mental health. She asked the Council to arrange alternative provision from the start of the autumn term.
27. Later that month, the Council told Mrs X it would not arrange alternative provision because Y remained on roll at School 1. The Council said School 1 was therefore responsible for ensuring Y received suitable education. Mrs X disagreed, explaining the school had said it could not meet Y’s needs, and told the Council of its section 19 duty to arrange suitable alternative provision.
28. In September, the Council again decided not to arrange alternative provision. It maintained that, as School 1 was still named in Y’s EHC Plan, the school was responsible for making appropriate arrangements using the funding it received for Y’s support.
29. Mrs X complained to the Council about the delay in issuing the amended EHC Plan and the failure to provide alternative provision for Y. She also contacted her local MP for assistance.
30. In response to the MP’s enquiry, the Council said Y’s annual review had recommended a specialist placement, but as Y was in Year 6 it would finalise a new school during the usual secondary phase transfer. The Council reiterated that School 1 remained responsible for providing and funding any alternative provision.
31. In October, School 1 arranged limited alternative provision (Provider 1) for Y, consisting of two four-hour sessions per week.
32. Later that month, the Council issued its stage one complaint response. It accepted there had been a delay in issuing a draft EHC Plan, which it attributed to staff changes. However, it maintained that School 1 remained responsible for arranging Y’s education.
33. In November, Mrs X escalated her complaint. She said she had become aware that the Council had approved additional funding for School 1 to deliver Y’s EHC Plan in September, but the school told her it was not aware of this and had not received this funding. Mrs X also said the existing funding would only cover Y’s current provision until December.
34. Mrs X and School 1 asked the Council to fund an increase in Y’s hours at Provider 1 to three four-hour sessions per week, which could be accommodated by the provider.
35. In December, the Council refused the request. It said Y could not attend an unregistered alternative provision for longer than they attended their named school.
36. Mrs X disputed this decision, explaining that full-time school attendance would normally be around 31 hours per week, significantly more than the 12 hours being requested. She also asked the Council to confirm that existing funding for Provider 1 would continue, as School 1 had said it only had enough to fund the placement until Christmas. She also reminded the Council of its section 19 duty.
37. In January 2025, the Council issued its stage two complaint response. It said it had since learnt, as previously raised by Mrs X, that it had a duty under section 19 of the Education Act 1996 to arrange suitable education for children out of school. However, it said it considered that duty met because School 1 had used its funding to commission Provider 1.
38. In March, the Council issued Y’s final amended EHC Plan naming a specialist placement (School 2). Y started attending School 2 later that month.

The Council’s response to my enquiries

39. In response to my enquiries, the Council provided copies of its stage one and stage two complaint responses. It did not provide any additional contemporaneous records, such as case notes, correspondence, or internal decision logs, showing how it considered Y’s education or its statutory duties at the relevant times.
40. The Council said it had considered its duty under section 19 of the Education Act 1996 when Y stopped attending school and was satisfied that the arrangements made by School 1 met this duty. It referred to its stage two complaint response as evidence of this consideration.
41. The Council stated that it reviewed Y’s access to education through the complaints process and later agreed to increase funding in early 2025.
42. It also said that increases to the hours specified in Y’s EHC Plan (from 20 to 22.5 and later to 32.5) demonstrated that it kept Y’s provision under review.
43. The Council referred to extracts from Department for Education guidance to support its view that responsibility for ensuring the suitability of provision rests with the school.
44. The Council provided no evidence that it:
• checked whether the special educational provision in Y’s EHC Plan was being delivered;
• assessed whether the eight hours per week arranged by School 1 were suitable or sufficient; or
• reviewed the adequacy or funding of the arrangements once they were in place.

My findings

Delay in issuing the final amended EHC Plan

45. The Council held Y’s annual review in January 2024 and notified Mrs X of its intention to amend the EHC Plan in April 2024, later issuing the final amended Plan in March 2025.
46. The Council should have notified Mrs X of its intention to amend the Plan within four weeks of the review meeting and issued the final amended Plan within a further eight weeks. In total, the Council took around 10 weeks to notify Mrs X of its decision and a further 48 weeks to issue the final Plan.
47. This represents a delay of about 10 months beyond the statutory timescales. This was fault. The Council accepted there was delay due to staff changes. While this may explain the reason, it does not remove the Council’s legal responsibility to comply with its statutory duties.
48. The delay meant Y’s placement and provision remained uncertain for almost a year, contributing to confusion about who was responsible for their education and delaying their move to a specialist setting.
49. The delay also caused avoidable uncertainty, frustration and distress to Mrs X and left Y without the increase in special educational provision that they were assessed as needing for longer than necessary.

Failure to provide suitable alternative provision

50. In July 2024, School 1 told the Council it could not meet Y’s needs, and Mrs X said Y would not return to school in September because of their mental health. From that point the Council knew Y would be absent for an extended period.
51. The Council refused to arrange alternative provision, saying Y remained on roll at School 1 and that the school was responsible. It repeated this position in September 2024.
52. This view was incorrect. Under section 19 of the Education Act 1996, councils must arrange suitable education for children who, because of illness or other reasons, would not otherwise receive it, regardless of whether they remain on a school roll.
53. The Council considered that Y should receive alternative provision, evidenced in its response to the MP, however failed to recognise its duty to arrange this. This was fault.
54. The Council should have arranged suitable alternative provision from the start of the autumn term. Instead, Y received no education until October 2024, about four weeks later.

Funding and responsibility

55. Alternative provision for children with health needs is funded from councils’ high-needs budgets. Where a child remains on roll at a school but cannot attend, councils and schools may agree to transfer part of the school’s funding to the alternative provision.
56. The Council decided that School 1 should fund Y’s alternative provision using the resources it already received for Y. Both the school and Mrs X raised concerns that this funding was insufficient to sustain provision beyond December 2024. The Council did not review or address this.
57. This was fault. The Council retained ultimate responsibility for ensuring suitable education and should have ensured that adequate funding was in place. Its failure to do so meant Y’s placement at Provider 1 became uncertain and only continued due to additional funding provided by the school.

Suitability and adequacy of the provision

58. When School 1 arranged alternative provision in October 2024, Y received two four-hour sessions per week (eight hours in total).
59. Suitable education must be equivalent to full-time education unless the Council determines that full-time would not be in the child’s best interests. There is no evidence the Council considered whether eight hours per week was appropriate for Y’s needs, or whether a medical view justified part-time education.
60. The Council said it was the school’s responsibility to ensure the suitability of Provider 1. This view was incorrect. The duty to ensure arrangements are suitable lies with the Council.
61. The Council also misquoted national guidance to support its view that the school, not the Council, held this responsibility. This misunderstanding is concerning and indicates a systemic misinterpretation of the law.
62. The limited amount of provision Y received was driven by funding constraints, not by an assessment of their needs. This was fault. I find, on the balance of probabilities, considering that the school and Mrs X asked the Council to fund increased hours, that Y would have been able to attend Provision 1 for at least one additional session per week.

Section 42 duty (EHC Plan provision)

63. Under section 42 of the Children and Families Act 2014, councils must ensure that the special educational provision in section F of an EHC Plan is delivered. This duty is non-delegable.
64. The Council has provided no evidence it secured the special educational provision detailed in Y’s EHC Plan while they were out of education or attending Provider 1. It therefore failed to demonstrate oversight of its section 42 duty. This was fault. Having considered the provision put in place by Provider 1, I find that Y missed out on some of the special educational support they should have been receiving.

Oversight and review of provision

65. Once alternative provision began in October 2024, the Council should have kept it under review and acted on any concerns about adequacy or accessibility.
66. The Council’s records show no review or monitoring of Y’s education during this period. This was fault. Its later reference to increasing Y’s EHC Plan hours from 20 to 22.5 does not demonstrate a review of the actual provision being delivered, as this increase occurred before Y attended Provider 1.
67. In December 2024, the Council refused requests from Mrs X and the school to increase provision on the basis that Y could not attend an unregistered setting for more hours than their named school. This reasoning was flawed and was fault. Y was not attending School 1; the purpose of the alternative provision was to replace that education. If the Council considered that Y could not attend Provider 1 for additional hours, it should have explored other suitable alternative provision options.
68. Y continued to receive limited provision until April 2025, when they started at the specialist school (School 2).

Learning from complaints and response to enquiries

69. The Council’s response to my enquiries largely repeated the information provided during the complaints process and did not include contemporaneous records demonstrating how or when it considered its statutory duties under section 19 of the Education Act 1996 or section 42 of the Children and Families Act 2014. It also did not show how decisions were reached about the timing, suitability, or funding of Y’s alternative provision.
70. The Council’s enquiry response included misquotations of statutory guidance and assertions that responsibility for ensuring the suitability of alternative provision rested with schools. This is incorrect in law. The Council’s reliance on inaccurate interpretations in a formal investigation response is concerning and indicates that officers continue to hold an incomplete or flawed understanding of the Council’s statutory responsibilities.
71. It is particularly concerning that the Council’s confusion persists despite previous Ombudsman decisions in 2025 highlighting similar failings and commitments by the Council to remind staff of the Council’s duties towards children out of school.
72. I therefore find the Council’s handling of this case, its poor response to my enquiries, and its continuing misunderstanding of its duties all amount to fault. This fault has organisational implications, as it suggests systemic weaknesses in staff knowledge, oversight, and learning from complaint outcomes.

Conclusion

73. The Council significantly delayed completing Y’s amended EHC Plan and failed to ensure that Y received suitable full-time education when they could not attend school for health reasons. It wrongly believed this responsibility lay with the school, and its misunderstanding continued even when responding to my enquiries.
74. The Council also failed to ensure that Y’s special educational provision was delivered in accordance with section 42 of the Children and Families Act 2014, did not review or monitor the adequacy of the alternative provision it knew was in place, and made funding decisions based on cost rather than need.
75. As a result, Y missed a substantial amount of education over approximately two terms. Mrs X experienced avoidable frustration, uncertainty, distress, and the time and trouble of repeatedly pursuing the matter and complaining.
76. The Council’s response to my enquiries, and its repetition of the same errors identified in earlier Ombudsman decisions, demonstrate a concerning lack of understanding of its legal duties and a failure to learn from previous complaints. This points to wider weaknesses in oversight and staff training.

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Action

77. To remedy the injustice caused by the above faults, within four weeks of the date of our final decision, the Council has agreed to:
• apologise to Mrs X in line with our guidance on Making an effective apology;
• pay Mrs X £650, as a remedy for Y’s benefit, to recognise the lost education and special educational provision between September 2024 and October 2024;
• pay Mrs X £2500, as a remedy for Y’s benefit, to recognise the lost education and special educational provision between October 2024 and April 2025;
• pay Mrs X £400 to recognise the uncertainty and distress caused by the delay in issuing the final amended EHC Plan and its failures regarding alternative provision;
• pay Mrs X £100 to recognise the time and trouble bringing the complaint to the Council;
• using this case as an example, issue updated guidance to staff that clearly sets out:
1. the Council’s statutory duties under S19 of the Education Act 1996;
2. the Council’s statutory duties under S42 of the Children and Families Act 2014; and
3. share the Ombudsman’s focus report Out of school, out of sight?
• consider reviewing its policies and procedures to ensure it retains oversight and control of its section 19 duties and section 42 duties.
78. I have not recommended any action for the Council to take to address delays within its SEND team. This is because following an Ombudsman decision in July 2025, the Council has provided guidance to staff and evidenced its monitoring of EHC Plan assessment and reviews.
79. The Council should provide us with evidence it has complied with the above actions.

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Decision

80. 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