Summary: The Council was at fault for failing to provide Miss X’s child Y with alternative educational provision and the specialist provision in their Education, Health and Care (EHC) Plan when they stopped attending school. The Council was also at fault for failing to issue Y’s final amended EHC Plan within statutory timescales following the annual review. The Council has agreed to apologise and make a payment to remedy the injustice caused.

The complaint

1. Miss X complained the Council failed to provide her child with a suitable education after they stopped attending school. Miss X also complained the Council failed to issue Y’s final amended EHC Plan within statutory timescales following the annual review.
2. Miss X said this caused distress, frustration and uncertainty. It has also delayed her appeal rights.

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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 Miss X and the Council as well as relevant law, policy and guidance.
7. 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

Relevant law and guidance

EHC Plan

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 EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement. 
10. 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 review

11. 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) 
12. 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.
13. 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.
14. 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

15. 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.
16. 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)
17. 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
18. 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.

19. 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

20. Miss X has a child Y who has special educational needs and an EHC Plan in place. Y was attending a specialist school. At the end of May 2024, the school notified the Council Y was not attending school and it had placed Y on a part-time timetable from January to date.
21. In June 2024, the Council asked the school to hold an emergency annual review meeting which it did in July 2024. In the meeting the school said it could no longer meet Y’s needs and the Council should seek a new placement urgently which the Council agreed to.
22. At the end of July 2024, the Council sent Miss X a letter notifying her that it proposed to amend Y’s EHC Plan. The following month it sent Miss X a draft amended EHC Plan.
23. A meeting was held in September 2024 between the school, the Council and Miss X. The meeting notes said the Council has not been able to find a new school placement and Y is not engaging with school either in person or online. The school said it cannot fund any alternative provision for Y.
24. In December 2024, Miss X complained that Y had received no education in seven months. The Council issued a final complaint response saying it could not offer Y alternative provision until the school placement had ended which did not happen until mid-December. The Council said it had now commissioned alternative provision and was awaiting responses from approved providers.
25. Miss X remained dissatisfied with the matter and complained to us.
26. Since then, the Council put in place alternative provision at farm therapy in June 2025. From September, Y had a placement at a specialist independent school.

The Council’s response to our enquiries

27. The Council accepted it did not provide Y with a suitable education and it delayed issuing the final amended EHC Plan following the annual review. The Council has offered the following to remedy the injustice caused:
• A payment of £4200 to recognise Y’s loss of education and the distress, frustration and uncertainty caused by the delay following the annual review;
• An apology to the family; and
• The final amended EHC Plan to be issued by 14 November 2025.

My findings

Annual reviews

28. The Council held Y’s annual review meeting in July 2024 and decided to amend Y’s EHC Plan. The Council should have issued the final amended EHC Plan within 12 weeks of this meeting and by mid-October 2024 at the latest. The Council delayed issuing this until November 2025 which was 13 months outside the statutory timescales and fault. This caused Miss X distress, frustration and uncertainty and significantly delayed her appeal rights.
29. We found similar fault with the Council on a separate case. Following that case, the Council agreed to review its procedures to ensure actions required after an annual review are carried out within the legal timeframes. Therefore, a further service improvement was not required.

Alternative provision and special educational provision

30. The Council accepted Y was no longer receiving a suitable education at the emergency annual review in July 2024 and this triggered its section 19 duty. The Council should have put in place alternative provision for the start of the new school year in September 2024. The Council accepted Y received no alternative educational provision from September 2024 until June 2025. This was fault which caused Y to miss out on education for almost three terms.
31. Y also has an EHC Plan in place and the Council has an absolute, non-delegable duty to secure the special educational provision set out in the Plan. As Y was unable to attend the school named in the EHC Plan, the Council should have considered how to make the provision specified in section F away from the school. The Council accepted it did not do this which was fault. As a result, Y did not receive the provision as set out in their EHC Plan for the full 2024-2025 school year.
32. We typically recommend between £900 and £2400 per term in recognition of lost provision, depending on the severity of loss. For the period I have investigated, I am satisfied the £4200 offered by the Council is a sufficient remedy to recognise the lost provision and the 13-month delay issuing the final amended EHC Plan following the annual review.
33. Following several cases this year where we found similar fault and injustice in relation to alternative provision and special educational provision, the Council has agreed to make improvements to its service. The Council has already used our investigations to provide staff training and review its policies and procedures. These service improvements are still underway. Therefore, I have not repeated any service improvement recommendations here. However, we will continue to monitor any trends and issues through our casework.

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Action

34. Within one month of the final decision, the Council has agreed to:
1. Apologise to Miss X for the injustice caused by the Council’s failure to provide Y with a suitable education and the delays with issuing Y’s final amended EHC Plan following the annual review. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
2. Pay Miss X £4200 for the injustice caused its failure to provide Y with a suitable education and the delays with issuing Y’s final amended EHC Plan following the annual review.
3. Provide a copy of Y’s final amended EHC Plan.
35. The Council should provide us with evidence it has complied with the above actions.

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Decision

36. 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