Summary: There was fault by the Council. There was significant delay sending a final Education, Health and Care Plan after an annual review. A child, Y, received no educational provision after she was removed from the school roll. An apology, symbolic payment and review of procedures remedies the injustice to the family.

The complaint

1. The complainant, who I shall call Mrs X, complains the Council did not provide the provision in Section F of an Education, Health and Care (EHC) Plan from January 2024 to March 2025 when her child, Y, could not attend school due to illness.
2. Mrs X says the Council did not provide the provision in Section F of an EHC Plan from March 2025 when Y was no longer on the school roll. Mrs X says that Y missed out on education in between hospital stays.

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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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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. 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. 
8. 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)
9. 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.
10. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments. 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. Mrs X complained to the Ombudsman in June 2025. I have exercised discretion to investigate from January 2024 until April 2024, when Y could no longer attend school and there was an annual review of the EHC Plan. This is because the information is available to investigate the complaint from this point and the annual review is a logical point to begin the investigation from.
12. However, on 10 April 2024 Mrs X could appeal to the SEND tribunal to challenge the Council’s decision that the school named in the EHC Plan was suitable. I consider the reason Y was not attending school was linked to the disagreement over the setting named in the EHC Plan, as Mrs X had told the Council that she wanted EOTAS rather than the school placement. So I am not investigating the provision of education from 10 April 2024 until 1 April 2025.
13. I have investigated the annual review process from 21 January 2025 onwards and the provision of education from 1 April 2025 until November 2025 when Y started the transition to specialist school.

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How I considered this complaint

14. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
15. 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

16. Y has an EHC Plan and attended Specialist school.
17. From January 2024 onwards Y no longer attended school due to illness.
18. There was an annual review of the EHC Plan on 6 February 2024. Mrs X asked the Council for Education Otherwise Than At School (EOTAS). The report of the 2024 annual review noted that the school felt the placement was not appropriate and that Y’s parents wanted an EOTAS package for her.
19. The Council wrote to Mrs X on 10 April 2024. This letter said the Council did not intend to amend the EHC Plan as it felt that Y needed time to engage with the provision in the EHC Plan. An annual review could then be held later in the academic year. Mrs X was told she could appeal to the SEND tribunal if she disagreed with the decision not to amend the EHC Plan.
20. The annual review report of 21 January 2025 noted that Y started at the school in September 2023 and had attended no sessions in the 2024-2025 academic year. The report said that Y was experiencing difficulties accessing school due to a variety of factors which were discussed at length in her previous annual review meeting in February 2024. Since the last annual review Y has experienced a change of medical circumstances…. the parents are requesting an EOTAS package to ensure that Y accesses a suitable education’. The report noted the school supported the parents in seeking an EOTAS package for Y and recommended the EHC Plan was amended.
21. The Council wrote to Mrs X on 3 April 2025 to say that it intended to amend the EHC Plan. Mrs X replied to the drafts and on 1 July 2025 asked the Council to consult with specialist schools as Y wanted to return to school.
22. The Council commissioned a tutor for Y on 16 June 2025. In September 2025 the tuition provider told the Council that they had been unable to organise a meeting with Mrs X about tuition. The Council emailed Mrs X about arranging tuition on 17 September 2025. Mrs X replied on 18 September that the family no longer wanted an EOTAS package as Y wanted to return to school.
23. The final EHC Plan was issued on 20 January 2026, after several drafts, which named a school. Y transitioned to this placement from November 2025 onwards, with a full time place from January 2026.

Annual review

24. 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) 
25. 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.
26. 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.

2024 Annual review

27. This annual review was held on 6 February 2024. The Council should have told Mrs X within 4 weeks of its intention not to amend the EHC Plan. Instead, it took 9 weeks. This delay was fault. However, Mrs X did not appeal to the SEND tribunal to challenge the Council’s decision so I do not consider this delay, on its own, caused significant injustice to Mrs X.

2025 Annual review

28. The Council took 10 weeks to write to Mrs X after the 2025 annual review to tell her it intended to amend the EHC Plan, rather than the 4 weeks required by law. This was fault. The Council should have issued the final EHC Plan after 12 weeks. Instead it took a year to do so. This was significant delay.
29. I can see the situation changed over this time and the Council was responding to Mrs X’s requests for changes. But the fact remains the Council did not comply with the statutory timescales and meant that Mrs X’s right to appeal to the SEND tribunal was delayed.
30. The Council has proposed a symbolic payment of £300 to acknowledge the distress from the delays in the annual reviews and £200 for poor communication. I consider this is in line with our guidance.

Loss of Education

1 April 2025 until November 2025

31. Y was without a school place from April 2025. The Council has shown that it commissioned tuition in June 2025, but no tuition took place and the Council did not follow this up until September 2025. In October 2025 Mrs X told the Council she no longer wanted an EOTAS package long term but the Council did not consider whether provision could be put in place in the short term until a school place was arranged.
32. Our guidance on remedies says ‘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. The figure should  be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC Plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Lost or delayed right of appeal to tribunal.
33. The symbolic payment is intended to remedy injustice caused to the child from missing provision, as well as the normal range of consequential injustice also caused to the family due to this fault, for example; where there is significant additional caring responsibilities that occur from a child being out of education, and avoidable disruption to daily routine
34. In response to my enquiries, the Council has offered Mrs X a symbolic payment of £4000 for Y’s loss of education provision. (This is in addition to the £500 described above.) In this case, it is unlikely that additional provision can make up the loss and there was also a delayed right of appeal to tribunal so I consider the maximum remedy per term is appropriate here. This would be £2400 for the summer term and £1200 for half of the autumn term, a total of £3600. So, I consider the Council’s remedy proposal is in line with our guidelines to remedy the injustice caused to the family.

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Action

35. Within one month of the date of the decision on this complaint, the Council should:
• Apologise to Mrs X and Y. 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 I have recommended in my findings.
• Pay Mrs X £4500.
36. Within two months of the date of the decision on this complaint, the Council should:
• Produce an action plan to demonstrate how the council will meet statutory timescales for annual reviews. (Or show that this is already in place.)
• Review its procedures to ensure that there is a process to ensure children with an EHC Plan who are taken off a school roll are monitored regularly to ensure that alternative provision is provided within legal timescales.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. I have completed my investigation and 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