Summary: Ms X complained the Council failed to intervene and ensure her son received the education and provision in his Education, Health and Care Plan when the school he was attending reduced his education to 90 minutes per week. She also complained the Council failed to complete an annual review of her son’s Education, Health and Care Plan in line with statutory timescales. We find the Council was at fault for failing to ensure Ms X’s son received the education and provision in his Education, Health and Care Plan. It was also at fault for its delay during the annual review and for not ensuring Ms X’s son could start his new school as soon as issued his final Education, Health and Care Plan. These faults caused Ms X upset and frustration. It also meant Ms X’s son missed out on education and provision. The Council has agreed to our recommendations to apologise to Ms X and make a payment for the injustice caused by fault.

The complaint

1. Ms X complained the Council failed to intervene and ensure her son (Y) received the education and provision in his Education, Health and Care (EHC) Plan when the school he was attending reduced his education to 90 minutes per week. She also complained the Council failed to complete an annual review of Y’s EHC Plan in line with statutory timescales.
2. Ms X says the matter caused distress and frustration and Y has missed out on education and provision.

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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 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)
5. 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.
6. 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(i), as amended)
7. 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

8. Ms X complains about events from 2021/2022 onwards. She did not refer her complaint to us until May 2024. I have exercised discretion to investigate matters from April 2023 onwards. I am satisfied Ms X could have bought her concerns about events before April 2023 to us sooner and therefore I have not exercised direction to investigate earlier matters. However, I will reference events before April 2023 for important background and context.

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How I considered this complaint

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

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What I found

Maintaining the EHC Plan

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.
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)  
13. 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

14. 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) 
15. Caselaw has established that when councils are amending an EHC Plan, they should take no longer than 12 weeks from the date of the annual review meeting to the date it issues the final amended Plan.

Alternative provision

16. 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.
17. 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)

What happened

18. Y has special educational needs and an EHC Plan. The Council held an annual review of his EHC Plan in September 2022. The primary school he was attending (School X) said it could not meet Y’s needs. It said it had made attempts to integrate Y into the classroom, provide him with 1:1 support and offer a bespoke timetable. It said it had sent a referral to the Council’s referral team for alternative provision, but the team had declined it.
19. Ms X emailed the Council at the beginning of February 2023 and said she was not having any luck with School X finding alternative provision for Y.
20. The Council issued Y’s final amended EHC Plan in mid-February. This said Y would transfer to a specialist secondary school (School Y) in September.
21. Ms X made a disability discrimination claim to the First-tier Tribunal about how School X handled Y’s education. The judge decided School X had discriminated against Y by failing to provide 1:1 support in class and providing him with limited education.
22. Ms X emailed the Council in May. She said School X was only allowing Y to attend for 90 minutes per week.
23. Y started attending School Y in September. Ms X emailed the Council a couple of weeks after Y had started and asked it to review Y’s EHC Plan. The officer responded and said she was no longer Y’s caseworker. She told Ms X to contact School Y.
24. School Y held an annual review of Y’s EHC Plan on 8 November. The Council did not attend but it was aware it was taking place. Ms X said Y wanted to move to a mainstream school and School Y was not the right setting for him. School Y said Y had settled in well and had established good relationships.
25. The Council sent several emails throughout November and early December chasing the annual review paperwork. School Y sent the paperwork to the Council on 11 December.
26. The Council agreed to amended Y’s EHC Plan. It issued Y’s draft amended EHC Plan at the end of December.
27. The Council consulted with Ms X’s preferred school (School Z) at the beginning of January 2024. School Z responded a few days later and said it could not meet Y’s needs. The Council followed up with School Z and asked for further evidence to support its decision making.
28. The officer dealing with Ms X’s case emailed Ms X and said she would raise the issue about School Z with managers. She had a meeting with Ms X in late February to discuss Ms X’s reasons for wanting Y to move to School Z.
29. The Council agreed to name School Z in Y’s EHC Plan. It issued the amended EHC Plan in late March. The only change from Y’s previous EHC Plan was the new placement.
30. Ms X contacted the Council in early April and said School Z had not been in touch with a start date. The Council emailed School Z and asked for an update. It emailed Ms X just over a week later and said it had not heard from School Z. It told her to contact School Z directly for Y’s start date.
31. School Z contacted Ms X in mid-April and agreed a start date for Y for the following week.
32. Ms X complained to the Council in April. She said School X failed to provide the provision in Y’s EHC Plan and the First-tier Tribunal found it guilty of discrimination. She also said she was unhappy with the delay in Y starting School Z. The Council responded to the complaint and said it was unaware of the discrimination case. It said it received annual review paperwork from School Y one month after the annual review. It consulted with School Z. School Z said it could not meet Y’s needs. It went back to School Z and asked for further evidence. School Z agreed to accept Y in mid-March. It apologised for the inconvenience this had caused.
33. Ms X contacted the Council and said she was unhappy with its complaint response. She asked why it took over 20 weeks for Y to start School Z. She also said it had a responsibility to ensure School X met Y’s needs. The Council issued its final response. It said it did not have any evidence Y was not receiving a suitable education at School X. Therefore, it could not consider a remedy payment.

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Analysis

34. The Council has very little records during the time Y was at School X. This has made my investigation of what education Y received when he was at School X difficult. I have largely relied on records from Ms X.
35. When the Council responded to Ms X’s complaint and my enquiries, it said it did not have any evidence to suggest School X was not providing Y with a suitable education. It knew Y was struggling to attend School X, but it did not receive a request to intervene. It was aware School X was trying to put in place alternative provision for Y.
36. School X said in the annual review (which the Council attended) from 2022 it could not meet Y’s needs and the attempts it made to reintegrate him had not worked. Ms X sent emails to the Council and raised concerns about the limited provision Y was receiving. I also note the judge in the discrimination case stated Y did not receive the 1:1 support from his EHC Plan. The available evidence suggests it is more likely that not Y did not receive appropriate support for his needs, and he did not receive the section F provision in his EHC Plan. The evidence also suggests the Council was aware of this, but it did not intervene and ensure Y received the provision in his EHC Plan. There is also no evidence it assessed matters to decide whether it should provide him with alternative provision. This is fault which has caused Y a significant injustice as he was without the provision and education he was entitled to. It has also caused Ms X distress and upset.
37. The Council did not receive the annual review paperwork from School Y until 11 December. This is despite several chasers. Therefore, the initial delay in dealing with the annual review was not due to the fault of the Council. The Council sent Ms X an amended copy of Y’s EHC Plan within four weeks of receiving the annual review paperwork. It should have issued Y’s final EHC Plan within 12 weeks. I have taken the 12 weeks from when the Council received the annual review paperwork. The deadline was therefore 4 March. The Council issued Y’s EHC Plan on 21 March. This is just over a two-week delay and is fault. The Council apologised for the upset caused to Ms X for the delay. I consider this to be a suitable remedy and is line with our guidance on remedies. I do not recommend anything further.
38. Ms X said in her complaint to the Council Y was at home without any education while she was waiting for him to attend School Z. Y had a place available at School Y for him to attend. School Y said in the annual review it felt Y had settled in well. There were no issues about it not meeting Y’s needs. Ms X decided a mainstream placement was more appropriate for Y. That was her choice. However, I do not accept the lack of education during the annual review process was because of any fault by the Council.
39. Y did not start School Z until late April. The Council made some efforts to contact School Z after it was aware he had not received a start date. However, it was responsible for ensuring Y received the special educational provision in his EHC Plan from School Z when it issued the final EHC Plan. The Council should have communicated better with School Z before it issued the final EHC Plan to ensure Y could attend straight away and there was a transition process in place. Its failure to do so was fault. This caused Ms X some frustration. It also meant Y missed a couple of weeks of education (the period fell within the Easter holidays).

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Agreed action

40. By 20 August 2025 the Council has agreed to:

• Apologise to Ms X for the injustice caused by fault in this statement.
• Pay Ms X £150 for her distress, upset and frustration.
• Pay Ms X £1,400 to reflect the lack of education and provision for Y from April to July 2023 and March to April 2024. We suggest Ms X uses this payment for Y’s educational benefit.

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

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Decision

42. There was fault by the Council, which caused Ms X and Y an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman