Summary: Ms X complained the Council did not provide suitable education to her child when they were out of school and delayed updating their education, health and care plan. Based on current evidence I intend to find the Council at fault for not providing suitable education and delaying making a decision on Ms X’s child’s annual review. Ms X’s child has missed a significant amount of education. To remedy the injustice caused the Council agreed to apologise, make a payment to recognise loss of education and secure suitable provision for the child.

The complaint

1. Ms X complains the Council did not provide suitable education and support to her child when they were out of school and delayed updating her child’s Education, Health and Care Plan.
2. Ms X said her child has fallen behind with their education.

Back to top

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. 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)

Back to top

What I have and have not investigated

6. I have not considered matters prior to March 2023. This is because too much time has passed and I consider there no good reasons why Ms X could not have complained to us sooner.
7. I have ended my investigation in March 2025, when the Council held an annual review.

Back to top

How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Special Educational Needs

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. 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. 
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. 

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. 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.
16. 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.
17. 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

18. 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).
19. 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)
20. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
22. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
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’)

What happened

24. In March 2023, the Council issued an EHC Plan for Ms X’s child Y. Y was not attending school and was getting one hour of tutoring at home per week provided by their school.
25. An email between the Y’s caseworker at the Council and Y’s school SENDCO showed the Council was aware Y was not attending school from February 2023.
26. In late March 2024, Y’s school held an annual review of their EHC Plan. The notes from the annual review showed Y was getting one hour per week of tuition from school, at home. Y’s school were looking to get Y to come in for after school clubs and increase tutoring.
27. In early May 2024, the Council received Y’s annual review paperwork from Y’s school and decided to amend Y’s EHC Plan. The Council wrote to Ms X on 9 May 2024, telling her it would amend Y’s EHC Plan and send her a new amended draft EHC Plan.
28. On 12 June 2024, Ms X complained to the Council. Ms X said the Council had not provided Y with support and Y had not attended school for a long time. Ms X said Y was only receiving 30-45 minutes of tutoring per week and she had not received an amended EHC Plan following Y’s annual review.
29. On 21 June 2024, the Council sent Ms X a draft EHC Plan for Y. The Council left the school placement section blank and asked Ms X to advise which type of school she believed was best for Y.
30. On 10 July 2024, Ms X made another formal complaint to the Council as she had not received a response. Ms X said Y has been out of school for over two years and there had been no outcome from the annual review held in March 2024.
31. The Council responded to Ms X’s complaint on 15 July 2024. The Council said:
• It only received the annual review paperwork from Y’s school in early May 2024 and then it told Ms X of its decision to amend Y’s EHC Plan.
• After it sent Ms X a draft amended EHC Plan, Ms X sent further medical evidence to the Council. The Council said it agreed to send a further draft EHC Plan to Ms X once it had considered this.
• Y was on a flexi-schooling package which included tuition from a member of school staff. The Council said Y’s school were encouraging them to come into school for after school clubs.
• It would speak with Y’s school to see if it could increase Y’s provision.
32. On 16 July 2024, the Council rejected Y’s school’s request for more funding to commission alternative provision. The Council said it believed Y’s school had enough funding to meet Y’s needs and the school should discuss an integration package with Ms X.
33. In September 2024, the Council wrote to Ms X and told her it was not amending Y’s EHC Plan. Instead the Council said it would start to update and amend the EHC Plan for Y’s transition to secondary school. Y’s school also increased Y’s tuition to five hours per week.
34. In December 2024, the Council issued a final EHC Plan for Y naming a type of school only and not a specific placement.
35. In March 2025, Y’s annual review of their EHC Plan took place. The notes from this showed Y’s school, Ms X and tutor believed Y needed a package of education otherwise than at school (EOTAS). As a result the Council agreed to consider this at its next panel.

Analysis

Annual review

36. Y’s annual review took place on 28 March 2024. As the result of this review was to amend Y’s EHC Plan the Council should have told her of this decision within 4 weeks of the annual review meeting. However the Council did not receive the annual review paperwork from Y’s school until 3 May 2024, five weeks later, and told Ms X on 9 May 2024 it would amend Y’s EHC Plan. While the Council was not at fault for the school’s delays sending over Y’s annual review paperwork, I cannot see what steps the Council took to chase up the school as it failed to provide the paperwork the Council needed to complete the review.
37. After the Council told Ms X it would amend Y’s EHC Plan it took it 6 weeks to issue a draft EHC Plan. After a further three months the Council then told Ms X it was not going to amend Y’s EHC Plan. This was fault. Ms X spent a significant amount of time believing the Council would amend Y’s EHC Plan and waiting for an amended EHC Plan.

Educational and SEN provision

38. Ms X said Y has not attended school for a long time and missed a significant part of their education.
39. I am satisfied the Council was aware Y was not attending school from February 2023. At this time it is not clear what steps the Council took to satisfy itself the one hour of tutoring per week Y received was suitable full time education or that Y was getting the special educational needs provision in their EHC Plan. This was fault.
40. In response to my enquiries the Council said Y was on a flexi-school, plan which consisted of one hour of tuition per week. Given that this was not full time education and Y had special educational needs, I would have expected the Council to have taken some action to satisfy itself Y was getting suitable provision and getting the SEN provision in their EHC Plan. I understand there may be times where one hour per week of tuition could be suitable if it was with the view to quickly get Y back into school. However, in this case the suitability of Y’s education was not reviewed and they continued to receive one hour of tuition per week for a long time.
41. In March 2024, Y was still only receiving one hour of tutoring per week. The notes from Y’s annual review showed there was a view to increase Y’s home tuition and the school asked for extra funding for this in July 2024. Again I cannot see what steps the Council took to satisfy itself Y was receiving suitable education and the SEN provision in their EHC Plan.
42. From September 2024, Y’s home tuition increased to five hours per week, however Y’s school put this in place. The Council knew Y was not attending school and had special educational needs from March 2023. On balance I am satisfied Y did not receive suitable education or all the provision in their EHC Plan from March 2023. This has caused injustice to Y as they have missed a significant amount of their education. Where we find fault has resulted in a loss of educational provision, we will usually recommend a remedy payment per term to recognise the impact of that loss. In coming to a suitable figure I considered Y was a child with special educational needs and they did receive a small amount of provision.
43. Since March 2025, the Council agreed to consider whether EOTAS was suitable for Y, however it is not clear whether it decided to put this in place.

Complaint handling

44. Ms X complained to the Council on 12 June 2024, however she did not receive a response. This was fault. Ms X had to raise a second complaint in July 2024 which the Council responded to.

Back to top

Agreed Action

45. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Ms X for the faults 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 I have recommended in my findings.
• Pay Ms X £5,400 for the benefit of Y’s education to recognise the loss of provision between March 2023 and March 2025.
• Pay Ms X £300 to recognise the distress she suffered because of Y not receiving the education and support they were entitled to.
• Arrange to put in place suitable provision for Y.
• If it has not done so already, issue Ms X with a decision on whether the Council will provide EOTAS for Y.
46. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

47. I have found fault causing injustice. The Council agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman