Summary: The Council failed to review Miss X’s child, Y’s, Education, Health and Care (EHC) Plan for nearly two years. It also delayed responding to Miss X’s complaint. This caused Miss X prolonged uncertainty and frustration. During this time Y stopped attending school and struggled to access alternative provision. The Council has agreed to apologise, review Y’s EHC Plan and make a payment to Miss X. It should also review its EHC Plan review processes.

The complaint

1. Miss X complained the Council failed to provide a suitable education for her child, Y, and failed to secure the provision in their Education, Health, and Care (EHC) Plan. She says Y missed out an education and this impacted their mental health. She wants the Council to explain what happened.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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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How I considered this complaint

5. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
6. Miss X and the Council have 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

Education, Health and Care (EHC) Plans

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 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)  
9. 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. 

10. 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) 
11. 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.
12. 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.
13. 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.
14. Where there is a significant change in circumstances, such as a breakdown in a placement, we expect the Council to consider an interim review

What happened

15. The Council issued an Education, Health and Care (EHC) plan for Miss X’s child, Y, in July 2023. It named Y’s placement as “specialist” in the EHC Plan and Y was placed on roll at school A. School A recorded that Y began attending in September 2023. In November 2023 school A told the Council that Y was not attending school. The Council says it spoke to Miss X and offered Y home tuition, which Miss X refused.
16. In December 2023 the Council told school A that it had still not received official documentation that Y was not attending school. Between December 2023 and January 2024 Y spent time in hospital over concerns for their mental health. In January 2024 the Council referred Y for ongoing mental health support through its crisis care pathway.
17. In February 2024 the Council referred Y to receive alternative provision via a short term medical based placement at school B.
18. The Council said it offered Y home tuition again in April 2024 and Miss X did not respond. At the same time a local councillor contacted the Council on Miss X’s behalf. In its response to them it said Miss X had not responded to its offer of home tuition and a referral to school B was underway.
19. School B accepted the referral for Y in May 2024. The Council issued an amended final EHC Plan for Y on 20 May. It removed the placement from Y’s EHC Plan to reflect this, but the rest of the Plan was identical to the plan issued in July 2023.
20. Miss X complained to the Ombudsman in June 2024. She said Y had received no education. We asked the Council to consider Miss X’s complaint through its own complaint process. Y was placed on the roll at school B in July 2024. The Council responded to Miss X’s complaint in April 2025. It said it had attempted to work with Miss X over her concerns, but she had not responded. It said it would review Y’s EHC Plan soon which would be an opportunity to look into any issues. Miss X remained unhappy and returned to the Ombudsman. She said Y was struggling to attend school B and still not receiving an education.
21. In response to our enquiries the Council said it had not carried out the annual review as Y had only begun to engage with school B in March 2025.

My findings

Reviewing Y’s EHC Plan

22. The Council was aware Y was not attending school from November 2023. It became aware over the next few months that this was not a short-term issue and that Y remained out of school. The Council should have considered an interim review of Y’s EHC Plan to determine the best approach. While the Council offered home tutoring, the situation was complex and required an approach tailored to Y’s needs. This did not happen. The Council was at fault.
23. Following the referral to school B the Council altered Y’s EHC Plan to remove reference to specialist provision. However, the rest of the plan remained unchanged, and was designed for delivery in school A. Any amendments to Y’s EHC Plan, however small, should have followed a review meeting where Y’s needs were properly considered. The Council issued an amended plan without carrying out such a review. This was fault.
24. From July 2024 Y continued to struggle to access alternative education via school B. Having failed to carry out an interim review when Y stopped attending school A and failed to review Y’s provision before amending their EHC Plan, Y’s annual review was due at this time. Despite this, the Council also failed to carry out Y’s 2024 annual review and has still not done so over a year later. This was fault. The Council says it has delayed the review as Y only recently began to engage with school B. The purpose of the annual review is to properly consider Y’s progress and the suitability of the provision in their EHC Plan. The Council has failed to consider whether carrying out a review would have helped Y access their alternative education sooner.

Injustice to Miss X and Y

25. Y stopped attending school in November 2023 and the Council has failed to carry out a review of their SEN provision since. This has caused Miss X prolonged uncertainty over the suitability of Y’s SEN provision.
26. Between November 2023 and July 2024 Y did not receive the provision in their EHC Plan or any meaningful education. During this time, Y also spent time in hospital and received crisis care. Y has since struggled to access the alternative provision at school B. Y has not received an education or the SEN provision in their EHC Plan since November 2023. However, I cannot say whether Y would likely have accessed any alternative provision had it been offered by the Council. Therefore, I cannot say Y has likely missed out on an education because of fault by the Council. The fault by the Council has caused Miss X further prolonged uncertainty over what education and SEN provision Y would have accessed if the Council had acted without fault.

Complaint handling

27. We told the Council to consider Miss X’s complaint in June 2024. The Council says it will respond to complaints within ten working days. The Council did not issue its stage one response until April 2025, a delay of over nine months. This was fault and caused Miss X prolonged time and trouble as she tried to resolve the situation.

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Action

28. Within one month of the final decision the Council has agreed to:
1. Apologise to Miss X for the failings identified. 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.
2. Carry out a review of Y’s EHC Plan without delay and ensure it meets the statutory timescales for any re-assessment and amendments following the review.
3. Pay Miss X £2000 to remedy the prolonged uncertainty caused by its repeated failure to review Y’s EHC Plan over nearly two years.
4. Pay Miss X £300 to remedy the prolonged time and trouble caused by its failure to respond to Miss X’s complaint, even when asked to do so by the Ombudsman.
29. Within three months of the final decision the Council has agreed to review its processes around EHC Plan reviews to ensure:
• It is carrying out annual reviews within the statutory timescales;
• properly considering when to carry out an interim review following a change of circumstances, and;
• ensuring any amendments to an EHC Plan are informed by a review of the child’s needs.
30. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman