Summary: Mrs Y complained about the way the Council dealt with her child’s special educational needs and educational provision. We have found fault causing injustice by the Council in: failing to properly consider its duty to provide her child with alternative provision and complete the annual review of their Education Health and Care Plan within statutory timescales; and its communication and complaint handling failures. The Council has agreed to remedy this injustice by: apologising; and making payments to recognise the impact of the missed education and upset caused by its other failures.

The complaint

1. Mrs Y complains about the way the Council dealt with her child, Z’s special educational needs (SEN) and educational provision. She says the Council failed to:
1. complete the October 2024 annual review of Z’s Educational, Health, and Care (EHC) Plan; and
2. provide Z with a suitable education from September 2024.
2. Mrs Y says, because of the Council’s failures:

• Z has not had an up-to-date EHC Plan. The school could not meet Z’s needs without this;
• Z has been unable to continue attending school without the appropriate support. They have missed out on most of their education since September 2024 as a result; and
• the whole family has been affected and caused an immense amount of stress and strain.

3. Mrs Y wants the Council to acknowledge its failings and take steps to put things right, including effective communication training for its staff. It should complete the annual review, issue an up-to-date EHC Plan for Z without further delay, and provide them with a suitable education including the support needed to take their GCSEs.

Back to top

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.
5. 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)
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).

Back to top

What I have and have not investigated

8. 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.
9. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
10. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
11. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
12. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

Complaint about Z’s alternative provision from February 2025

13. My view is we cannot investigate the complaint about the Council’s failure to make alternative provision for Z during the period from 19 February 2025.
14. This is because the Council notified Mrs Y on 19 February of its decision to maintain Z’s EHC Plan. It also told her about her right to appeal to the Tribunal if she was unhappy with its decision.
15. I consider it was reasonable for Mrs Y to have used this right of appeal if she did not agree with the Council’s decision not to make any changes to Z’s SEN provision or placement. She said at the time of the annual review in October 2024, school was not working for Z on any level, and the EHC Plan should be amended because of significant changes to Z’s needs and provision.
16. In my view, Mrs Y’s disagreement with the Council’s decision to maintain Z’s current EHC Plan, which she had the right to appeal against, was linked to the reasons for Z’s non-attendance at school.
17. But I am able to look at issues concerning alternative provision and delays in the annual review process before the start of the appeal right in February 2025.   

Back to top

How I considered this complaint

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

Back to top

What I found

What should have happened

EHC Plan 

20. 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. 

Reviewing EHC Plans

21. 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 annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place.
22. 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) 
23. 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.

Duty to provide a suitable education

24. 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.
25. We 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? updated August 2023
26. We recommended councils should:

• consider the individual circumstances of each case and be aware that it 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: and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

What happened

27. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Background

28. Z has an EHC Plan. Their Plan in 2024, issued in January 2023, set out their SEN provision in section F which was to be delivered through the school named in section I – a mainstream secondary school.
29. From September 2024, Z struggled to access school and was only attending a few hours a week.

October 2024: EHC Plan annual review

30. The school held the annual review meeting with Mrs Y on 15 October. The meeting record states:

• Z’s current attendance was 43%, and 45% over the previous school year. This was because Mrs Y had difficulty getting Z to attend school;
• Mrs Y said Z was only attending school an hour a day because of their anxiety and this was not enough. School was not working for Z on any level. Z needed alternative provision under section 19;
• Z’s outcomes were not being met. The school and Mrs Y said Z’s EHC Plan should be amended because of significant changes to Z’s needs and provision: and
• Z would attend school for one hour a day, three days a week with view to building up their time in school.

31. The school submitted the annual review paperwork to the Council following the meeting.

February 2025: Mrs Y’s contact with the Council about Z’s EHC Plan

32. Mrs Y heard nothing from the Council about the outcome of the annual review.
33. She told the Council on 3 February:

• she had emailed it about Z’s situation in October 2024 and told it Z was struggling with the school’s support but had not received a reply;
• there was no progress. Z was currently attending school for only two hours a day and now being asked to select their GCSE options; and
• Z’s EHC Plan needed updating and amending. But the Council had not sent any communication about changes to Z’s EHC Plan following the annual review in October.

34. Mrs Y also complained to the Council on 5 February about its communication failures, lack of response and delay completing the annual review. She said Z was only attending school two hours a day. She asked how the Council was going to ensure Z received adequate educational provision.
35. The Council replied on 6 February. It apologised for the lack of communication. It noted there had been a review in October and said there had been one additional outcome, but no additional provision.
36. On 19 February the Council issued a letter to Mrs Y notifying her of its decision to maintain Z’s EHC Plan, and that this meant the Plan would remain unchanged. It also notified Mrs Y of her right to appeal to the SEND Tribunal against this decision.
37. The Council sent an email to Mrs Y the same day inviting her for a call to discuss why it had decided to maintain Z’s Plan. It also said it had asked the school to hold a further annual review.
38. Mrs Y replied on 24 February giving dates she would be available for the call. She said the EHC Plan needed to be amended as Z was only attending school two hours a day.

Council’s response to Mrs Y’s complaint

39. The Council issued its stage one complaint response on 20 February. It accepted:

• there had been communication failures. It had failed to respond to her contact; and
• it had failed to complete the annual review within the required timescales. It had not notified her of its decision to amend, maintain or cease the EHC Plan.

40. The Council apologised for its failures. It said these had been raised with the team and they would be in touch to complete the review.
41. Mrs Y was not satisfied with the Council’s response. She said its apology was not an adequate remedy for its failures.
42. The Council confirmed this was its final response and Mrs Y brought her complaint to us in April 2025.

Events following Mrs Y’s complaint to us in April 2025

43. Mrs Y told us Z was not attending school at all now but had been provided with two-hour sessions twice a week at an alternative provision setting from May 2025, later increased to two-hour sessions three times a week.
44. A further annual review meeting was held in October 2025. The school asked the Council for further funding to allow Z to access an increased amount of education at their alternative provision setting.
45. The Council issued Z’s final amended EHC Plan on 28 November 2025 and notified Mrs Y of her right to appeal to the SEND Tribunal.

My decision – was there fault by the Council causing injustice?

The delay completing the October 2024 annual review

46. The Council accepts, and I agree, it failed to complete the annual review of Z’s EHC Plan within the statutory timescale.
47. It should have issued its decision to amend, maintain or cease Z’s EHC Plan within four weeks of the meeting on 15 October 2024 – so by 12 November 2024. It did not do this until 19 February 2025.
48. The Council seems to have completely failed to register the receipt, and consider the contents, of the review paperwork submitted by the school in October 2024. It took no action to complete the review until prompted by Mrs Y’s contact in February 2025.
49. This failure to complete the review within the statutory timescale was fault.
50. The delay caused Mrs Y worry and uncertainty about the outcome of the review and what changes if any the Council proposed to make to Z’s EHC plan. Her right to appeal against the Council’s decision was also delayed until it notified her it intended to maintain the plan in February 2025.

Failure to consider its section 19 duty

51. The Council was told by the school and Mrs Y, in the annual review paperwork submitted in October 2024, Z was only attending school a few hours a week and that Mrs Y had asked it to make alternative provision for Z in accordance with its section 19 duty.
52. Had the Council considered this information, it would have been aware of Z’s school attendance difficulties, their anxiety issues and the request for further SEN provision to meet Z’s changed needs.
53. My view is the Council should have considered, when it received the annual review information, whether it now had a duty to provide Z with alternative education under section 19. It failed to consider this in October 2024, and in February 2025, when Mrs Y contacted it again about Z’s school issues.
54. The Council’s failure to consider its duty to provide Z with alternative provision was fault.

Impact of this fault

55. Had the Council considered its section 19 duty in October 2024, it should have taken the action set out in our guidance (paragraphs 25 and 26). This included a proper consideration of the circumstances of Z’s case, that it might need to act whatever the reason for their low attendance at school, and whether it should require Z’s attendance at school or provide them with suitable alternative provision.
56. It should then have worked with Mrs Y and Z’s school to draw up a plan to address Z’s attendance difficulties and their impact on Z’s education, and taken action to ensure Z was back in education as soon as possible.
57. I note the school was unable to build up Z’s time in school and they had stopped attending at all by May 2025. At this point the school then arranged sessions for Z at an alternative provision setting.
58. In my view, had the Council properly considered its duty in October 2024, it is more likely this alternative provision would have been put in place for Z much earlier and Z would not have missed out on so much of their education.
59. For the reasons set out in paragraphs 13 to 16 I am only able to consider the impact of the missed education on Z from autumn 2024 to February 2025, a period of about one school term.
60. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the harm caused by that loss.  This payment is intended to remedy injustice caused to the child or young person from missing provision, as well as the normal range of consequential injustice also caused to the family due to this fault.
61. The amount is based on the impact on the child/young person and takes account of factors such as the severity of their SEN as set out in their EHC Plan and whether the period was significant in their school career. We also consider the impact of missing provision such as OT and SALT.
62. Here I consider the payment should be towards the middle of the range. I have taken into account Z was barely receiving any education or SEN provision during this period, which was an important stage leading up to GSCE options. I have also noted Z had not been able to engage in full-time education for some time and part-time alternative provision was arranged initially.

Communication failures and complaint handling.

63. The Council has accepted, and I agree, it failed to communicate properly with Mrs Y about the annual review and its decision to maintain the plan in February 2025. It failed to communicate at all with her about the outcome of annual review between October 2024 and February 2025. And it failed to follow up on its invitation to speak to her about its decision.
64. It also failed to respond to an important part of Mrs Y’s complaint – its failure to provide Z with a suitable education under section 19. It delayed responding to her request on 27 February for a stage two review of her complaint. It did not tell her, until 4 April, it had decided not to escalate her complaint, and she could now bring this to us.
65. These failures were fault, which caused Mrs Y further upset and uncertainty about the situation with Z’s educational provision and the outcome of her complaint about this.

Service improvements

66. We have issued a number of decisions over the last 12 months finding fault by the Council in the way it dealt with SEN provision, the EHC Plan annual review process and consideration of its section 19 duty. The Council agreed to make the following service improvements in May and August 2025:

• issue a staff briefing to ensure all relevant staff are aware of the Council’s statutory obligation to ensure a child receives a suitable education if they cannot attend school;
• share our focus report "Out of school, out of sight?" with relevant staff to emphasise the Council’s section 19 responsibilities and identify wider points of learning;
• issue a staff briefing to remind relevant staff to respond to complaints in line with the Council’s procedure and keep complainants updated where deadlines cannot be met;
• review its Annual Review process to ensure the relevant team send the parents or the young person the Council’s decision within four weeks of an Annual Review meeting. If the Council intends to amend a child’s EHC Plan, within the same timescale it should also send proposed amendments; and
• remind the SEN staff dealing with Annual Reviews of the mandatory stages of the process and the statutory timescales.

67. In view of the service improvements the Council has already agreed to make, I don’t propose to make any further recommendations at this stage.

Back to top

Action

68. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mrs Y for its; failure to properly consider its duty to provide Z with alternative provision and complete the annual review within the statutory timescales; its communication and complaint handling failures; and the upset these caused. This apology should be in line with our guidance on Making an effective apology:
2. pay Mrs Y £1,700 to acknowledge the harm caused by the loss of Z’s educational provision. This payment is intended to remedy injustice caused to Z from missing provision, as well as the normal range of consequential injustice caused to the family due to this fault.
3. pay Mrs Y £200 to recognise the upset, worry and uncertainty caused by its failure to complete the annual review process within the statutory timescale, and its communication and complaint handling failures. This is a symbolic amount based on our guidance on remedies.
69. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

70. I find fault causing injustice. The Council has agreed to take the above action to remedy this injustice.

Back to top

Investigator's decision on behalf of the Ombudsman