Summary: The Council was at fault for delays in consulting schools and finalising Y’s Education Health and Care Plan following their annual review, for poor communication and for failing to ensure Y received an appropriate and accessible education whilst it sought an alternative school. The Council has agreed to apologise and make a payment to Mrs X to acknowledge the loss of education provision, uncertainty, frustration and delayed appeal rights this caused.

The complaint

1. Mrs X complained the Council delayed issuing a final Education, Health and Care (EHC) Plan following her child Y’s annual review of November 2024. In particular it significantly delayed consulting education settings which left Y out of full time education.
2. Mrs X also complained the Council failed to ensure that Y received the special educational provision in section F of their EHC Plan. Mrs X says this caused them distress and meant she was unable to work which had a financial impact.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
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. 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.
8. 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)
9. 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

10. As part of her complaint Mrs X said Y had not received the provision in section F of their EHC Plan or had a full time education since 2023. As set out above complainants are expected to come to us within 12 months of knowing they have cause for complaint. It was open to Mrs X to come to us sooner and there are no good reasons to consider what happened in 2023 now. Mrs X first complained to us in September 2025 so I have considered what happened from September 2024 until Y got a school place in November 2025.

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How I considered this complaint

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

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What I found

Relevant law and guidance

Education, Health and care Plans

13. 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 which include section F: the special educational provision needed by the child or young person and section I: the name or type of educational establishment. We cannot direct changes to the sections about the child’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.
14. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
15. The courts have established that if someone has appealed to the SEND 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).
16. 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.
17. 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 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.
19. 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 education provision

20. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
21. 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)
22. We have published 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).
23. Our guidance says that councils 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.
24. 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.

Background

25. Y has a diagnosis of autism with language impairment and attention deficit hyperactivity disorder (ADHD). In 2023 the Council issued an Education, Health and Care (EHC) Plan naming a mainstream secondary school from September 2023. The Plan stated Y needed access to an enhanced resource provision (ERP) specifically for students with social communication and interaction difficulties.
26. Y started attending the school’s ERP in September 2023 but stopped attending in November 2023 because it was not meeting his needs. The school arranged some home tuition in early 2024, concentrating on Maths and English.

What happened

27. In September 2024 Y’s school agreed to use the funding it received for Y’s special educational needs (SEN) for three days a week at an alternative provision. It produced a reintegration plan starting with Y attending school for two hours once a week alongside the alternative provision.
28. In November 2024 the school arranged an emergency annual review. The Council did not attend. This recommended that the EHC Plan was amended. The front sheet to the annual review stated the Plan needed minor changes for factual accuracy but then recommended a change in educational placement. The Council wrote to Mrs X in late December 2024 that it would be amending the EHC Plan.
29. In December 2024 Mrs X told the Council Y’s funding for the alternative provision was due to run out in February 2025. She said Y had flourished at the alternative provision and requested additional funding so this could continue until a new permanent setting was found for Y.
30. Mrs X contacted the Council again in January 2025 to ask if alternative schools had been consulted and to reiterate that the alternative provision funding would run out in mid-February. The allocated officer advised Mrs X they had eight weeks to amend the Plan and to consult schools. Y stopped attending the alternative provision in late February 2025 when the funding ran out.
31. In February 2025 the Council wrote to Mrs X that it intended amending Y’s EHC Plan following the annual review and sent Mrs X a draft EHC Plan. The allocated officer also advised Mrs X they would send out consultations that week to explore new settings. Mrs X provided her feedback to the Council later that month. Around that time Y’s allocated officer requested additional funding from the Council’s funding panel to fund the alternative provision. The panel deferred the decision as it wanted further information about the provision and costs. The officer again presented the request to the panel in March 2025. It again deferred the decision as there was no reintegration plan for Y alongside the alternative provision.
32. In early March Mrs X told the Council that she was previously advised it had until mid February to consult schools but this had not happened. She said she was told additional funding for the alternative provision could not be secured until schools were consulted. She said Y’s last day at the alternative provision was in February and Y was not receiving any of the provision in section F of their Plan. The Council responded that it was working to ensure the funding panel had the information required to approve the additional funding requested by the school for Y’s alternative provision. It said it was working to update the Plan to reflect Y’s needs and would then consult schools but in the meantime the school would work on a reintegration plan.
33. In late March 2025 Mrs X met with the school, the alternative provision, the Council and a senior Educational Psychologist who determined Y’s needs could no longer be met at the school. The meeting agreed Y required specialised provision.
34. In early April 2025 the Council’s funding panel approved the additional funding for Y’s alternative provision whilst the Council sought a permanent school place. Later that month Mrs X asked when the EHC Plan would be finalised. The Council said it would be considered by the funding panel that week.
35. In early May 2025 Y started to attend the alternative provision again for two days a week.
36. The Council issued Y’s amended draft EHC Plan in early May 2025. Later that month Mrs X asked it consult a special school, school B. She also complained to the Council about the delay in funding Y’s alternative provision and that no consultations had yet been made.
37. An officer responded to Mrs X in late May that they understood there were still some outstanding issues with the Plan. They agreed to consult school B but said if there were significant changes to the Plan they would need to reconsult. They suggested arranging a meeting.
38. The Council met with Mrs X in June 2025 to go through some further EHC Plan amendments. Mrs X again asked the Council to consult school B.
39. In June 2025 Mrs X complained to the Council that it had not followed the complaints procedure adequately. The Plan following the emergency annual review was yet to be finalised and communication was sporadic. Mrs X wanted an apology and the Plan to be finalised.
40. Five days later the Council issued an amended final EHC Plan. This stated Y was attending the alternative provision and attending the school’s ERP for a couple of hours one morning each week but Y was not comfortable accessing a classroom and would only remain within the ERP where Y did not receive any subject teaching. Section F included a reduced stimulus teaching environment, a nurture based approach in which relationships were prioritised, individual one to one support to deliver a personalised timetable, targeted work to developed Y’s social communication skills. Section I continued to name Y’s mainstream school. The Council told Mrs X it still named the mainstream school as Y remained on roll there and it would be updated once it had agreed a placement through its panel.
41. In July 2025 the Council started consulting specialist provisions. By late July it updated Mrs X that 10 schools had given a negative response and 10 were yet to respond and it was following these up.
42. In late July 2025 the Council responded to Mrs X’s complaint. It said:

• Y remained on roll at the mainstream school and it put alternative provision in place. It said it was currently consulting specialist schools and referred to an email from September 2024 which said ‘there has been no further communication from school regarding the continuation of tuition for [Y], [Y] will be closed to our service as [Y] is successfully attending [the alternative provision]’. It said the email outlining two options should further tutoring be required. It partially upheld this part of the complaint due to the time taken to arrange an alternative setting.
• The outcome of the review from November 2024 was to amend the Plan but ongoing discussions were needed to clarify some of the suggested changes. It accepted that it had delayed finalising the Plan.
• Waiting to finalise the Plan before consulting settings created a delay. It noted they had agreed that until another setting was identified, the current school would continue to be named in section I of the Plan.
• It had generally responded to Mrs X’s queries in two to five working days but a response to several queries could not be found.

43. It apologised and offered Mrs X £300 for her avoidable time and trouble. Mrs X remained unhappy and asked to go to the next stage of the complaints procedure. She said the alternative provision did not deliver any English or Maths tuition and Y needed tuition alongside the alternative provision.
44. The Council responded at stage two of its complaints procedure in September 2025. It accepted the time taken to consult other settings was excessive. It said, in line with its statutory responsibilities, the school had provided appropriate education support through tuition and the alternative provision. It acknowledged that communication had not consistently met expected standards. It considered the recommended payment proportionate and in line with its approach to remedies. It said it had introduced measures to strengthen the quality assurance of EHC plans and a robust monitoring process to confirm what actions and recommendations had been implemented.
45. In September 2025 Mrs X appealed to the Tribunal about sections B, F and I of Y’s final amended EHC Plan. She contacted the Council to ask what suitable full time education it would offer Y given they were only at the alternative provision two days a week. The allocated officer responded that they could request home tuition to help supplement Y’s provision.
46. In October 2025 Mrs X contacted the allocated officer for an update on the consultations. The officer advised they would follow up with the schools and if Mrs X was happy for them to request a placement at school B, they would put this to the funding panel. Later that month the Council agreed for Y to attend school B.
47. In late November 2025 Y started to attend school B.

Previous Ombudsman Investigations

48. Following previous investigations of complaints about this Council it has provided evidence of a new casework management system it has introduced and has looked at ways to ensure when staff are absent work is reallocated to prevent delays.

Findings

EHC Plan delays

49. The Council wrote to Mrs X in late December 2024 to advise it was amending Y’s EHC Plan. It then had eight weeks to issue the final amended Plan. The Council did not issue the Plan until June 2025, four months later than it should have. This was fault. This delayed Y finding an alternative school and Mrs X’s right of appeal.
50. The Council should have consulted specialist providers before finalising the Plan. The Council had agreed in March 2025 that Y needed specialist provision and yet said it would continue to name Y’s previous mainstream school in the finalised Plan until it had found an alternative school. The Council’s delay in carrying out consultations and following up responses was fault.
51. Mrs X appealed against the school named in the Plan and Y’s provision as set out in section F of the Plan so I cannot investigate these matters from June 2025 as we cannot investigate matters where there is a right of appeal and the appeal right has been used.

Alternative provision

52. The school arranged alternative provision from September 2024. This delivered some but not all of the provision set out in section F of Y’s EHC Plan.
53. The Council in its complaint response to Mrs X said it was satisfied the school had provided appropriate education support through tuition and the alternative provision. However, I have seen no evidence the Council properly considered whether this was sufficient to meet its section 19 duties, or monitored the provision in place. This was fault.
54. Y’s home tuition ended when Y started at the alternative provision in September 2024. Y received no maths or english teaching from September 2024 to November 2025. I cannot say, even on balance, how much if any tuition Y could have coped with. However this caused Mrs X uncertainty.
55. Y received no alternative provision at all between the end of February 2025 and early May 2025 when there was a gap in agreeing funding for the alternative provision. Although Y attended the school’s ERP for two hours once a week during some of this period, Y received no educational provision from the school. The failure to arrange alternative provision was fault and meant Y missed out on receiving an accessible and available education.
56. From May 2025 onwards Y attended the alternative provision two days a week. Y had previously coped well attending three days a week and it appears this reduction was due to availability/funding. The Council failed to consider what if any additional support Y could or should receive to meet its s19 duties. This was fault and meant Y on balance missed out on provision.
57. The Council has already accepted there was some fault in its communication with Mrs X.
58. The Council’s faults mean Y has missed out on any education for a two month period and the teaching of core subjects for over a year. The faults have also caused Mrs X frustration and uncertainty and delayed her appeal rights. The Council has already offered Mrs X £300 but I do not consider this sufficient to remedy the injustice caused to her and Y.
59. The Council has already taken action in response to Mrs X’s complaint and previous investigations to improve its processes so I have not made any further recommendations on this case. However, we will continue to monitor its performance through our casework.

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Agreed Action

60. Within one month of the final decision, the Council has agreed to apologise to Mrs X and pay her £1500 to acknowledge the impact of Y’s missed provision and the frustration, uncertainty and delayed appeal rights caused by the Council’s faults. This includes the £300 the Council has already offered. 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.
61. The Council should provide us with evidence it has complied with the above actions.

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Decision

62. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman