Summary: Mrs X complained about the Council’s failure to comply with the statutory timescales when carrying out her son Y’s Education Health and Care needs assessment and issuing his plan. She also complained about the Council’s delay in completing review of Y’s Education Health and Care Plan, failure to arrange alternative provision when Y could not attend school and poor communication. We found fault with the Council for the delays in issuing Y’s Education Health and Care plan after the review and for its failure to decide on its alternative provision duty. We also found fault with the Council’s communication. The Council’s fault caused injustice to Mrs X. The Council has agreed to apologise, refund costs Mrs X spent on Y’s education between January and mid-June 2024 and make a symbolic payment to recognise Mrs X’s distress.

The complaint

1. Mrs X complains about the Council’s:
• delay in issuing her son’s (Y) Education Health and Care (EHC) Plan in 2022;
• delay in mediation after Y’s EHC Plan was issued in November 2022;
• delay in completing an Annual Review of Y’s EHC Plan for which the meeting was held in mid-October 2023;
• failure to arrange alternative provision for Y from October 2023;
• poor communication.
2. Mrs X says the Council’s failings meant that Y missed education. They also caused disruption to his routine. The Council’s failings impacted the family finances, Mrs X says, as she had to take time off work to arrange education for Y.

Back to top

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. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended)
5. 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)
6. 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)
7. 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.
8. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
9. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
11. 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.
12. 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)
13. 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

14. As explained in paragraph five of this decision we would normally investigate events which happened in 12 months from the date the complainant came to us. Mrs X came to us at the beginning of May 2025.
1. I have decided there are no good reasons to extend my investigation to 2022, when the Council carried out an assessment of Y’s EHC needs and issued his first EHC Plan. Mrs X said that due to her personal circumstances in September 2023 she could not complain earlier. The delay, however, was too long to accept that it was justified by the events from September 2023 and their impact on Mrs X. Besides Mrs X came to us after over six months from the Council’s stage two complaint response in mid-October 2024. I also considered that at the time Mrs X had legal support;
2. although normally we would investigate events from the beginning of May 2024, I have decided to investigate what happened from the Annual Review of Y’s EHC Plan in October 2023. This is because there was ongoing injustice caused by the Council’s delays in issuing Y’s post-review EHC Plan, which continued until mid-June 2024. Besides it would be difficult to determine the Council’s failings and any injustice flowing from them without looking at what happened at the review.
3. I did not investigate whether the Council complied with its Section 19 duties and delivered special educational provision included in Y’s EHC Plan from mid-June 2024 as this is when the Council issued Y’s final EHC Plan, which Mrs X appealed. Mrs X appealed Sections B, F and I. Due to the extent of the appeal, any delivery of education and special educational provision would be closely linked to the appeal issues, which prevents us from investigating. This is explained in paragraphs six to eight of this decision.

Back to top

How I considered this complaint

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

Back to top

What I found

Law and guidance

Annual reviews

17. 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) 
18. 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

19. 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.
20. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
21. 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)
22. 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)

Delivery of special educational provision

23. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
24. It is inappropriate for the council to seek to delegate to the school the responsibility for ensuring that the requirements of a child’s EHC Plan are delivered. The statutory responsibility for securing the special educational provision specified in the EHC Plan rests with the council, not the school. It is for the council to prove that it is doing all it can to meet its legal duty to secure for a child the special educational provision to which he is entitled. (R (on the application of HXN) v Redbridge London Borough Council [2024] EWHC 443 (Admin))

Communication

25. Local authorities should support and encourage the involvement of children, young people and parents or carers by:
• providing them with access to the relevant information in accessible formats
• giving them time to prepare for discussions and meetings, and
• dedicating time in discussions and meetings to hear their views.

(Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.24)

26. Councils must have regard to the need to support a child with special educational needs or disabilities and their parent to facilitate the development of the child and to help them achieve the best possible educational and other outcomes. (Children and Families Act 2014 section 19 (d))

What happened

27. The Council issued Y’s EHC Plan in mid-November 2022, naming a local mainstream primary school (the School) in Section I.
28. From September 2023 Y attended Year 4. He was receiving individual support but most of the time he could not access the main classroom and had to be educated outside.
29. In the second week of October 2023 Y was suspended from the School for a few days. During the suspension period Mrs X told the School Y would not be coming back due to his anxiety. He would return once he felt better.
30. The School contacted the Council’s Inclusion team and advised Y stopped attending. After the second suspension since the beginning of the new school year, Y was at risk of permanent exclusion. The School consulted a pupil referral unit, but Y’s parents refused to engage with it.
31. In mid-October 2023 the Council held a meeting to review Y’s EHC Plan.
32. In mid-January 2024 Y started attending an alternative provider (the Provider) for 15 hours a week. Mrs X asked the Council to fund it. She kept contacting the Council about Y’s education and support and issuing his final post-review EHC Plan. She found the Council unresponsive. Y’s special educational needs officers changed several times and at times there was nobody responsible for his case.
33. Towards the end of January 2024 the School contacted the Council to ask for its position on Y’s school placement. The School told the Council Y had not been attending school since mid-October 2023 and the parents asked for the School to be removed from Y’s EHC Plan.
34. A month later the Council’s officer asked the School whether it could fund the Provider. The Council suggested this would be the right way to proceed as Y was still on the School’s roll. Meanwhile the Council would be looking for a more suitable placement for him.
35. The School contacted the Council in mid-April 2024 and suggested it wanted to hold an urgent professionals’ meeting about Y. The School was aware Y did not have a named special educational needs officer.
36. Mrs X complained at the end of May 2024. At the beginning of September the Council responded, recognising its delays with an Annual Review of Y’s EHC Plan and offering a payment of £400. The Council also offered £200 for its delays when issuing Y’s final EHC Plan and £100 for Mrs X’s time and trouble during the complaint process.
37. Following the Annual Review meeting for Y in October 2023, the Council issued his amended EHC Plan in the second week of June 2024. No amendments were made to Section F or Section I of the plan.
38. In the second week of August Y’s parents appealed Sections B, F and I of Y’s EHC Plan. They said that Sections B and F were based on the professional reports from 2022 which were out of date. Mr and Mrs X said Y’s needs had completely changed since then. Section F did not clarify who should be delivering provision to Y and provision was not specified or quantified. Y’s parents considered the School could not meet Y’s needs which was proven by his lack of progress. Mr and Mrs X asked the Tribunal to name a specific special school. Later during the appeal Y’s parents changed their position asking for Y to be educated through an Education Otherwise than in School (EOTAS) package, including education at a registered alternative provider (the Provider).
39. In mid-October 2024 the Council sent its stage two response to Mrs X’s complaint.

Analysis

Annual Review

40. Following an Annual Review of Y’s EHC Plan the Council should have issued his final plan within 12 weeks from the date of the Annual Review meeting, so in the second week of January 2024. This happened in the second week of June 2024. The delay of five months is fault.
41. The Council’s fault did not cause injustice to Y as there were no amendments in Section F and Section I. Subsequently issuing post-review EHC Plan with delay had no consequences for him. This fault caused, however, injustice to Mrs X as she did not agree with the Council’s position on the suitability of Y’s school and wanted to use her appeal rights. Mrs X was frustrated by the delay especially since Y had not been attending school since October 2023 and Mrs X was funding his alternative provision. She was anxious to get educational issues resolved for him as soon as possible.
42. The Council’s offer of £400 for Mrs X’s distress caused by the delay in issuing Y’s final EHC Plan following the review is a suitable financial remedy, in line with our Guidance on remedies.

Alternative provision and delivery of special educational provision

43. When councils find out about non-attendance of a child of compulsory school age, they should check the reasons for it and decide on its Section 19 duty. In our focus report “Out of school, out of sight?" updated in August 2023 we set up the process councils should follow:
• consider the individual circumstances of each case and be aware the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) – and even when a child is on a school roll;
• consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• 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;
• retain oversight and control to ensure your duties are properly fulfilled. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible.
44. The Council failed to follow the process set up in the paragraph above. Since the Annual Review meeting in mid-October 2023 the Council had known Y was not attending school. Mrs X claimed Y’s anxiety made it impossible for Y to attend but the Council failed to address these claims and to decide whether it should arrange alternative provision for Y. The Council should have monitored Y’s situation and should have made Section 19 decision at the end of autumn term 2023 at the latest. From the Council’s communication with Y’s school in February 2024 it seems that in the spring term of 2024 the Council accepted Y needed out of school provision but later correspondence between the Council and the School shows there was a lack of clarity.
45. The Council’s failure to decide on its Section 19 duty is fault. This fault did not cause injustice to Y as from mid-January 2024 he was receiving education at the Provider, arranged and funded by his parents.
46. The Council’s fault caused injustice to Mrs X. If the Council had taken decision on its Section 19 duty in the autumn term 2023, on the balance of probabilities it is likely it would have decided it had a duty to arrange alternative provision for Y. This is because in February 2024 the Council told the School to fund education Y was receiving from the Provider. Mrs X was distressed by the Council’s failure to take responsibility for Y’s education. She also incurred financial loss as paid for Y’s education at the Provider.

Communication

47. In our guidance notes ‘Principles of good administrative Practice’ we set up standards we expect from councils when performing their functions. Councils should:
• provide effective services;
• ensure people can access services easily;
• inform people who use services what they can expect and what the organisation expects of them;
• respond to people’s needs flexibly and, where appropriate, coordinate a response with other service providers;
• take responsibility for their actions.
48. Timely and effective communication is necessary to provide the required standards of service. This did not happen for Mrs X. The Council failed to communicate with her and often failed to respond to her correspondence and telephone calls. Due to the frequent changes of Y’s special educational needs officers statements were made but not followed through.
49. The Council’s failure to provide timely and consistent communication to Mrs X is fault. Mrs X was distressed as she could not get the Council’s position on Y’s education and could not challenge it.
50. In its stage one complaint response the Council offered £100 to recognise Mrs X’s distress caused by its unsatisfactory communication. This is sufficient symbolic payment.

Service improvements

51. In December 2023 the Council introduced its SEND Priority action and improvement plan. The events I have investigated happened between October 2023 and June 2024, so before any improvements could have taken effect. We will monitor the effectiveness of the Council’s actions through our casework.

Back to top

Action

52. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X for the injustice caused to her by the faults identified. 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;
• pay Mrs X £3,084 as a refund of her costs of Y’s education from mid-January to 11 June 2024;
• pay Mrs X £500 offered to her in the Council’s stage one response to recognise Mrs X’s distress caused by the delays in completing the review of Y’s EHC Plan and failure to communicate with her effectively.

The Council will provide the evidence that this has happened.

Back to top

Decision

53. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

Back to top

Investigator's decision on behalf of the Ombudsman