Summary: Mrs X complained the Council failed to adhere to the statutory timescales following an annual review of her son’s Education, Health and Care plan, and provide suitable alternative provision when he was unable to attend school. We found fault by the Council which caused Mrs X and Y an injustice. The Council will apologise and make payment to acknowledge the impact this had on them.

The complaint

1. Mrs X complained about the Council’s handling of her son’s (Y) education from January 2025. She said the Council failed to:
• adhere to the statutory timescales of the Education, Health and Care (EHC) plan process and find a suitable school placement for her son;
• provide her son with a suitable and accessible education, and provision in his EHC plan when he was unable to attend his school placement; and
• act quickly on agreed points of her complaint since September 2025, which included finalising the EHC plan process with a different placement, arranging alternative provision, and arrange updates of assessments for Y to amend the EHC plan.
2. Mrs X said, as a result, X experienced a loss of education and they experienced distress 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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. 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)

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What I have and have not investigated

8. I have investigated Mrs X’s complaint about the Council’s handling of her son’s education and EHC plan process from January 2025. I have found it appropriate to consider the events and injustice Y experienced until March 2026. While this was after the Council’s final complaint response and its issue of a final amended EHC plan. I was satisfied the matters complained about was ongoing and therefore appropriate to include in my investigation.
9. I have not investigated any concerns Mrs X had about the Council’s handling of Y’s education prior to January 2025. This is because we have previously investigated a complaint from her up to December 2024. We found the Council caused delays in the EHC plan process and failed to arrange alternative provision when he was unable to attend his school placement.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Relevant law

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. 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. 
14. 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)  
15. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Reviewing EHC plans

16. 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)
17. 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.
18. 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

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. 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)
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. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
23. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’)
24. 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)
25. 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.

26. 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

27. Mrs X’s son (Y) has an EHC plan which sets out his special educational needs, the provision he should receive, and lists a school placement.
28. In Spring 2024 a meeting to review Y’s EHC plan took place. The annual review notes stated that after an exclusion of Y, the school offered him a part-time timetable, which Y did not accept. Y found the school environment overwhelming. It was noted Y was unable to access the mainstream setting due to his social emotional and mental health difficulties. Alternative provision such as special schools or Education Otherwise than at School (EOTAS) should be explored.
29. By Autumn 2024 the school offered Y access to online provision and some practical sessions in school. However, he could not engage with the online provision or attend the school site. It recorded his attendance based on him accessing the online hub.
30. Following Mrs X’s complaint and our investigation, the Council accepted fault for its failure to complete the annual review process. It was also at fault for failing to arrange suitable alternative provision which Y could access for two terms until December 2024. It provided a remedy for the injustice it caused Y and Mrs X and carried out service improvements.

What happened

31. An interim annual review meeting was held in February 2025. This again found Y had not been able to attend his school placement due to the impact the environment had on him. The same online hub was available to Y which he was still not accessing. It confirmed his EHC plan was significantly out of date and required amendments. The school said it could not meet his needs, and a bespoke package would not change his ability to re-engage in mainstream education. It recommended Y needed a specialist provider.
32. Mrs X said she continued to try to resolve the issues with the school and the Council. However, no further or different alternative provision was provided to Y.
33. The Council issues draft EHC plans for Y in April and May 2025, which both continued to list Y's existing mainstream school placement. Mrs X shared her disagreements with the Council’s amended draft plans.
34. In July 2025 Mrs X decided to deregister Y from his school placement. She said this was because he continued to be unable to access the online hub arranged by his school and no further provision had been made available.

Mrs X’s complaint

35. Mrs X complained to the Council shortly after. She said it had failed to:
• adhere to the statutory timescales of the EHC plan process and find a suitable school placement for her son. She said this was ongoing delay from the 2024 annual review and again following the February 2025 annual review; and
• provide her son with a suitable and accessible education and provision in his EHC plan, when he was unable to attend his school placement.
36. In September 2025 the Council upheld Mrs X’s complaint. It found it had caused delays in the EHC plan process and failed to finalise Y’s amended EHC plan following annual reviews. It also acknowledged it had not formally acted on her requests for alternative provision. It said it would:
• inform Y’s school it would no longer be listed in the EHC plan and find an alternative placement;
• request updates from professionals for assessments to ensure Y’s EHC plan met his needs;
• expedite the finalisation of Y’s EHC plan and provide Mrs X with her appeal rights; and
• consider arrangements of interim alternative provision to ensure Y received an education.
37. Mrs X escalated her complaint to the Council in October 2025. This was because there had been no progress and she had received no updates for a month since its complaint response.
38. The Council issued a final amended EHC plan for Y in October 2025. This continued to list Y’s existing school placement.
39. The Council provided its final response four weeks later, after Mrs X had chased the Council. It found its initial complaint response was appropriate and no further action would be taken.
40. Mrs X asked the Ombudsman to consider her complaint in November 2025.
41. Since Mrs X’s complaint, a new review meeting took place in December 2025 and a further final amended EHC plan was issued for Y in March 2026, which listed a specialist placement. He started in this placement in January 2026. The Council also carried out our service improvement recommendations on Mrs X’s previous complaint to the Ombudsman.

Analysis and findings

The annual review process for Y

42. The Council failed to complete the annual review process for Y from January 2025 to October 2025. This was an ongoing failure since its early 2024 annual review. This was despite the interim review in February 2025 which again set out Y’s EHC plan required amendments and was significantly out of date, and Mrs X’s ongoing requests. The Council has acknowledged it was at fault.
43. The Council issued a final amended EHC plan for Y in October 2025, which therefore finalised the annual review process. However, I found it was not reasonable for Mrs X’s to have appealed to the SEND Tribunal. This is because:
• Y’s final amended EHC plan continued to list the same mainstream school which had confirmed it could not meet Y’s needs, and a bespoke package would not change his ability to access an education at the school;
• the Council said it worked with Y’s school, but this did not lead to any progress. Nor was there any evidence it had consulted with any other settings; and
• the Council worked with Mrs X soon after to review and further amend Y’s EHC plan to list a specialist setting. It arranged for Y to attend the setting from January 2026, before the EHC plan was finalised in March 2026, to avoid further delay, as agreed with Mrs X.
44. I have therefore found the Council’s failure to finalise the annual review process and amend Y’s EHC plan was first completed in March 2026, although the injustice this caused Mrs X stopped in January 2026 when Y started attending his new placement. The delay was therefore 13 months.

Alternative provision for Y

45. The Council was aware Y had been unable to attend his school placement since 2024, and he had only very limited engagement with the school’s offer of the online hub and practical visits to the school. This was unchanged for the whole of 2025 despite Mrs X’s requests for provision and support, and a change to his school placement.
46. We previously found the Council at fault for its failure to properly consider, decide and act on Y’s alternative provision needs when he was not attending his school placement. The Council remained responsible for Y’s education when he could not attend the school. I have seen no evidence to suggest the Council’s handling in 2025 was any better. It also accepted it had failed to formally acknowledge and act on her requests in its complaint’s response in September 2025. This was therefore fault.
47. The Council was not responsible for Y’s alternative provision arrangements for a short period as Mrs X had deregistered Y. This was in the final few weeks of the 2024/25 academic year. However, it again became responsible for this at the start of the 2025/26 academic year as it agreed to complete actions, which included to consider the alternative provision arrangements for Y to ensure he received the education he was entitled to. However, it again failed to do so, and no further alternative provision was available to Y until January 2026 when he started the new placement.
48. I found the Council’s failure to ensure Y was receiving a suitable education and provision in his EHC plan caused an injustice which is likely to have further contributed to his isolation and increased difficulties to engage with any offers. This ended when Y started attending his new specialist placement in January 2026. Y’s loss of education and EHC plan provision therefore lasted three school terms.

Complaints handling

49. The Council took nearly seven weeks to respond to Mrs X’s stage one complaint, and four weeks to respond to her stage two complaint. However, I have not found this to be fault by the Council. This is because:
• the Council’s Complaint’s Policy says it aims to respond within 10 working days for stage one complaints, but this can be extended. I was also mindful it aimed to resolve her complaint through its informal resolution service first, it was during the school holidays and it required information from the school, and it provided its response shortly after school staff returned from summer holidays.
• its stage two response was received within four weeks, following Mrs X request for an update. This was therefore within the timescales set out in its policy.

Service improvements

50. We have previously made service improvement recommendations for the Council to adhere to the statutory timescales for the annual review process of EHC plans, and to improve its handling of its alternative provision duties and communication with parents.
51. I have not made any new service improvement recommendations for the Council. This is because we were satisfied it had complied with our recommendations in late 2025. This was therefore at the end of the period of Mrs X’s complaint, and its changes would not have taken effect until then.

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Action

52. To remedy the injustice the Council caused to Mrs X and Y, the Council should, within one month of the final decision:
1. apologise in writing to Mrs X to acknowledge the injustice its faults caused her 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.

2. pay Mrs X £5,100 to acknowledge the loss of education and special educational needs provision Y experienced during three academic terms; and
3. pay Mrs X a symbolic payment of £500 to acknowledge the distress and uncertainty she experienced as a result of the delayed EHC plan process and failings.

In total the Council should pay Mrs X £5,600.

53. The Council should provide us with evidence it has complied with the above actions.

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Decision

54. I have completed my investigation with a finding of fault causing Mrs X and Y and injustice. The Council will apologise and make payment to acknowledge the impact this caused them.

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Investigator's decision on behalf of the Ombudsman