Summary: Mr X complains the Council failed to deliver educational provision to Child Y and delayed issuing their Education, health and Care Plan. Mr X says this meant they missed suitable education and support. We find fault with the Council for delaying arranging alternative provision and for delaying issuing Child Y’s EHCP. The Council has agreed to make financial payments in recognition of the missed provision and injustice to Child Y and Mr X.

The complaint

1. Mr X complains the Council has

• failed to deliver educational provision,
• failed to provide an updated plan following a review and decision to amend,
• failed to name the preferred school following consultation, and
• failed to properly communicate with him about the process and next steps.

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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(i), 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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What I have and have not investigated

5. Mr X’s complaint centres around the failure to provide educational provision and the EHCP review process from March 2024. The Council issued a new EHCP in January 2025, at which point Mr X was granted his appeal rights which he could use if he was unhappy with the provision and delivery. I have therefore only investigated the period of March 2024 to January 2025.

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How I considered this complaint

6. I considered evidence provided by Mr X, his representatives and the Council, as well as relevant law, policy and guidance.
7. I invited Mr X, his representatives and the Council to comment on my draft decision and considered any comments received.

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What I found

Legislation and guidance

Education Health and Care Plans (EHC Plans)

8. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

Reviewing EHC Plans

9. 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) 
10. 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.
11. 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 provision

12. 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.
13. 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)
14. 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

15. Child Y has an EHCP maintained by the Council. The original EHCP was issued in 2023 and named a specialist school for Child Y.
16. In March 2024, the Council held an annual review for Child Y. The annual review recorded that

• Child Y was not meeting their targets.
• Child Y was on a part time timetable of four hours a day.
• The School was no longer able to meet Child Y’s needs and an alternative placement should be found.
• The School sought extra funds to meet Child Y’s needs while a new placement was sought.
• The Council would amend the EHCP and issue a new version. It would also seek to agree extra funds for the school to deliver support while it sourced a new placement.

17. The school’s attendance records showed that Child Y was attending for four hours daily from March 2024, and for two hours daily from June 2024.
18. In June 2024, the Council held a further meeting. It had not issued a new EHCP at this point. In the meeting it recorded

• Consultation with schools had not yet started.
• Child Y’s needs had significantly changed, and they were now only attending two hours a day
• Significant multi agency work was needed to ensure the best outcomes for Child Y.

19. The Council sent consultations to several schools. Most replied to say they could not meet Child Y’s needs. The Council agreed extra funding for the current school in August 2024 while it arranged an alternative placement.
20. The Council issued a revised draft EHCP in June 2024, and a further revised draft in August 2024.
21. In November 2024, Child Y was placed in the Council’s care under a section 20 arrangement. They were moved to a residential placement with a school attached. From November 2024, Child Y attended this school.
22. The Council issued the final EHCP in January 2025, naming the school attached to the residential placement.

Complaint handling

23. Mr X complained to the Council. In his complaint he said

• Child Y had not been accessing education.
• The Council had delayed issuing a revised EHCP.
• The Council had failed to properly communicate with him and carry out the multiagency work needed.
• The Council had failed to name the parental preference school

24. The Council’s final complaint response said

• It recognised the current school was not suitable for Child Y and that it needed to find an alternative.
• It was aware Child Y had not been receiving full time education, and the Council is trying to source extra support.
• The Council had delayed issuing the amended EHCP.
• The Council had failed to properly communicate with Mr X about the process and it had not managed the multiagency work needed in a timely manner.

Analysis

Delay in issuing an amended EHCP

25. The Council held the annual review on in March 2024. The annual review documents show the Council intended to amend the EHCP. The Council should have issued the amended EHCP by the end of May 2024, but it did not do so until January 2025. This is a delay of about seven months.
26. The Council has been able to show that it consulted with several placements for Child Y, including parental preference. However, most placements could not offer Child Y a place.
27. In response to our enquiries, the Council has said it will pay Mr X a remedy of £100 per month for the delay of the EHCP. This is a suitable remedy for this part of the complaint.

Delivery of Education from March 2024 – August 2024

28. The Annual review in March 2024 recognised that Child Y was not making progress towards his outcomes. The School was clear in its communication that a more suitable placement was required and it could no longer meet Child Y’s needs or deliver the EHCP. The Council's complaint response recognised the delay in issuing an amended EHCP and consulting with schools meant the Council delayed finding a suitable placement for Child Y.
29. In response to our enquiries, the Council told us it only became aware of Child Y’s reduced timetable in June 2024 and that no request for added funding was made until July 2024. The Council records show that it was aware of the reduced timetable in March 2024 as the annual review document says Child Y had a reduced timetable. The accompanying documents from the School showed Child Y was receiving four hours of education daily. The annual review document also shows the School felt it needed further funding for one to one support if Child Y was to remain there while an alternative placement was found.
30. Child Y’s timetable reduced further from June 2024 to two hours of education daily.
31. The Council was aware from March 2024 that Child Y was on a reduced timetable and the school could not meet his needs. The school sought extra funding for alternative provision until the Council could find a suitable placement, but this was not agreed or provided until August 2024.
32. I am not satisfied the Council has been able to show how it considered its duty to provide Child Y with the equivalent of full time educate from March 2024. The Council became aware of the reduced timetable in March 2024 and agreed at the annual review to seek more funding. It would have been reasonable to ensure this was put in place for the summer term. Therefore, the Council is at fault for not ensuring Child Y could access full time education for the summer term.

Delivery of Education from September 2024 – November 2024

33. The Council provided extra funding to the School for alternative provision from September 2024. This consisted of two people supporting Child Y for four hours a day while they engaged in activities. I am satisfied the Council did what it could to ensure there was some provision in place. However, it remains the Council has recognised that this placement and provision was not suitable for Child Y. Therefore, I remain of the view that while there was some provision in place, Child Y was caused an injustice as the Council and school recognised the provision and placement could not meet his needs.
34. I am satisfied that from November 2024, Child Y was in a residential placement and attending the school attached.

Distress and complaint handling

35. The Council has upheld in its complaint response that its communication with Mr X was poor at a time that was stressful for him and Child Y. Child Y has several needs and complicated home circumstances. The Council’s complaint response recognises its actions in delaying the EHCP and poor communication resulted in unreasonable distress for Mr X and Child Y during an already stressful time.
36. The Council’s complaint response upheld several parts of Mr X’s complaint. However, it failed to properly consider any remedies for the fault. The Ombudsman has clear guidance on remedies which we expect Council’s to consider when remedying complaints. The Council should have considered this when upholding Mr X’s complaint
37. In response to our enquiries, the Council has recognised a financial payment to Mr X and Child Y for the distress caused would be reasonable, and has proposed to pay £750 to Mr X and £500 to Child Y. These remedies are in line with the Ombudsman’s guidance on remedies.

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Agreed Action

38. Within four weeks of the final decision, the Council has agreed to

• Write to Mr X and apologise for the fault identified.
• Pay Mr X £750 in recognition of the distress caused.
• Pay Child Y £1250 for the missed provision during the summer term of 2024.
• Pay Child Y £500 for the distress caused by the unsuitable provision in September and October 2024.
• Send written reminders to relevant staff of the Council’s responsibilities under Section 19 of the Education Act. With these reminders, it should share a copy of our “Out of school, out of sight?" focus report, highlighting key points to ensure officers are aware of the factors they should consider when it is aware a child is not accessing full time education.

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

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Decision

40. We find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman