Summary: The Council was at fault for not reviewing the suitability of the alternative provision in place for Miss X’s child, Y. The Council was at fault for the delay in carrying out an annual review of Y’s Education, Health and Care (EHC) Plan and for missing the phase transfer deadline. The Council has agreed to apologise and make a payment to remedy the injustice caused to Miss X.

The complaint

1. Miss X complained about the Council’s handling of her child Y’s EHC Plan. Miss X complained the Council failed to:
• Ensure Y received a suitable education;
• Carry out an annual review of Y’s EHC Plan within statutory timescales; and
• Meet the phase transfer deadline.
2. Miss X said Y has missed a suitable education. The fault has also caused distress, frustration and uncertainty.

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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. 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.
5. 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)
6. 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

7. 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)
8. Some of Miss X’s complaint is late. She said Y has not received a suitable education for over three years but Miss X did not complain to us until September 2025. There is no evidence Miss X could not have complained to us earlier about events before September 2024 and no good reasons to exercise discretion to go back further than 12 months. Therefore, I have investigated from September 2024.

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How I considered this complaint

9. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
10. 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 Plans

11. 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. 
12. 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)  

Post-16 Phase transfer

13. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

Section 19

14. Section 19 of the Education Act 1996 says that the council must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which makes the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
15. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025)
16. Our guidance says that the council should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether it will arrange alternative education provision;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

17. 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.

Annual reviews

18. 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. Following the review meeting the council must issue a decision to either 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) 
19. 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.
20. 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.

What happened

21. Miss X has a child Y with special educational needs and an EHC Plan in place. Section F of Y’s EHC Plan sets out that they were entitled to therapeutic intervention, enhanced pastoral support, social skills work and language assessments.
22. The Council commissioned a full-time specialist placement for Y at school A in September 2022. Y had a reduced timetable from 2023 and the School implemented numerous interventions but it was unsuccessful in increasing Y’s attendance. The School told the Council it could no longer meet Y’s needs and it offered the following package of provision for the 2024/2025 school year:
• 1:1 home tuition on Tuesdays and Thursday for Maths and English for four hours a week.
• Four hours a week at an alternative provider on Mondays and Fridays to complete a motorbike mechanics course
• Work experience on Wednesdays
23. In February 2025, the Council arranged the annual review meeting and decided to amend Y’s EHC Plan. The Council issued a draft EHC Plan in April 2025. Y was moving to post-16 education in September 2025.
24. Miss X made a complaint to the Council about the following:
• Whilst Y had remained on roll with School A, their educational provision had been grossly inadequate;
• Y only received four hours of online learning per week alongside four hours at an alternative provider; and
• For three days a week, Y was at home with no support whilst Miss X was working full-time and the Council had made no effort to provide full-time education.
25. In August 2025, the Council issued a final complaint response saying if the educational provision had been grossly inadequate Miss X should have raised it with School A at the time. The Council said it commissioned a full-time placement and it would speak to the provider to understand why more tuition was not put in place.
26. Miss X remained dissatisfied with the Council’s handling of the matter and complained to us at the start of September.
27. In November 2025, the Council issued Y’s final amended EHC Plan. If Miss X was unhappy with the contents of the Plan, she could appeal this to the SEND tribunal.

Council’s response to our enquiries

28. The Council accepted that there was a significant delay in completing the 2025 Annual Review process. The Council said this was due to the case officer being absent due to illness.
29. When asked how the Council kept the suitability of the provision under review, it said Y’s EHC Plan co-ordinator continued to attend the annual review meetings.
30. In relation to section F provision, the Council has shown it provided Y with the following:
• Access to mentoring on site and pastoral support with key members of staff
• Funding for a therapeutic support programme
• A Speech and Language Therapy (SALT) assessment

My findings

Annual reviews and phase transfer

31. The Council carried out the annual review meeting for Y’s EHC Plan at the end of February 2025. It should have sent Miss X its decision to amend the Plan within four weeks, so by the end of March 2025. Following this, it should have issued Y’s final amended EHC Plan within statutory timescales. It had eight weeks to do this so it should have issued the Plan by mid-May 2025. It should have also issued it before 31 March 2025, which was the phase transfer deadline.
32. The Council was at fault as it did not issue the amended final EHC Plan until November 2025. This was a delay of almost six months outside statutory timescales and almost eight months after the phase transfer deadline. This caused Miss X distress, frustration and uncertainty.
33. We found fault with the Council on a similar case. Following this, the Council agreed to create an action plan demonstrating how it will address delays in the annual review process. We will monitor compliance with this through our case work. Therefore, a further service improvement is not required.

Section 19

34. School A informed the Council ahead of September 2024 it could no longer meet Y’s needs and informed the Council what package of alternative educational provision it would be providing to Y. Full-time education is not defined but is commonly held to be equivalent to between 22 and 25 hours a week. It was clear from the information the School provided to the Council, this would not be full time.
35. The Council should have considered whether the education was suitable and regularly reviewed Y’s attendance and progress with a view to increasing this to full-time hours. The Council has been unable to provide records to evidence it has done this. Therefore, on a balance of probabilities, it has not considered the suitability of the educational provision or kept this under review which was fault. Whilst I cannot say Y would likely have engaged with any more education, it has caused Miss X uncertainty about whether education offered was suitable.
36. We found fault with the Council on a similar case. Following this, the Council agreed to implement a clear process such as a decision checklist to ensure that officers, when considering section 19 duties, were considering all the evidence, reaching a decision and recording the decision and rationale. We will monitor compliance with this through our case work. Therefore, a further service improvement is not required.

Specialist provision

37. Y has an EHC Plan in place and the Council therefore had a non-delegable duty to make sure Y received the special educational provision set out in section F of the Plan. Y was entitled to therapeutic intervention, enhanced pastoral support, social skills work and language assessments. The Council has provided evidence this was made available to Y and therefore, was not at fault.

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Action

38. Within one month of the final decision, the Council has agreed to:
• Apologise to Miss X for the distress, frustration and uncertainty caused by the delay in the annual review process and not reviewing the suitability of the alternative provision in place for Miss X’s child, 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 Miss X £300 for the distress, frustration and uncertainty caused by the delay in the annual review process and not reviewing the suitability of the alternative provision in place for Miss X’s child, Y.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. 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