Summary: The Council was at fault for failing to ensure Y’s Education Health and Care (EHC) Plan was reviewed within statutory timescales. The Council also failed to provide Y with suitable alternative educational provision and the specialist provision set out in their EHC Plan after they stopped attending school. The Council has agreed to apologise and make a payment to recognise the impact of Y’s missed education as well as the distress, frustration and uncertainty caused.

The complaint

1. Mrs X complained the Council failed to provide her child Y with a suitable education after they stopped attending school. She also complained the Council failed to ensure their EHC Plan was reviewed within statutory timescales.
2. This caused Mrs X’s distress, frustration and uncertainty as Y has missed out on educational provision. It has also delayed Mrs X’s appeal rights.

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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. 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.
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(1), as amended)
6. 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

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council 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

Relevant law and guidance

EHC Plan

9. 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.
10. 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).

Alternative provision

11. 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.
12. 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)

Annual review

13. 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) 
14. 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.

Phase transfer

15. The council must review and amend an EHC Plan in enough time before a child or young person moves between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. This means that discussions about transfer need to begin early in the autumn term of the year before transfer (such as year 6 or 11) to allow plenty of time for the review and amendment process to happen.
16. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases.

Education Other Than at School (EOTAS)

17. For some children and young people, education in any setting would be inappropriate due to their special educational needs. This is referred to as EOTAS.
18. If the Council agrees it would be inappropriate for any required special educational provision to be delivered in a school, it can agree to arrange for it to be delivered somewhere else, for example at home. The Council must arrange and pay for that provision.

What happened

19. Mrs X has a child Y who has special education needs and an EHC Plan in place. Y was attending a special school placement. In December 2023, the placement began to breakdown and Mrs X notified the Council of this in May 2024.
20. An annual review was held the same month and the school confirmed it could no longer meet Y’s needs. In late July 2024 the Council sent Mrs X a letter notifying her of its intention to amend Y’s EHC Plan.
21. Mrs X raised a stage one complaint regarding Y’s lack of education the same month. The Council replied in August 2024 saying it was in the process of arranging a tailored package of alternative provision to support Y whilst it sought a suitable school placement.
22. In October 2024, the Council put in place 10 hours of alternative provision for Maths, English and Science. The Council also funded two mornings a week for Y to complete a course in animal education at a farm.
23. The Council held a phase transfer review meeting in late November 2024 as Y was transferring to secondary school in September 2025. The Council did not send a further amendment notice about Y’s Plan to Mrs X following this.
24. In December 2024, the records show the Council agreed more alternative provision should be put in place for Y. In late February 2025, the Council funded a further 12 hours of alternative provision for Y.
25. Mrs X requested the Council consider her complaint at stage two. In February 2025, the Council issued a final stage complaint response saying it considered Y had a full package of alternative provision which would remain in place until the end of the academic year whilst it continued to seek a permanent educational placement. The Council was clear this was not an EOTAS package.
26. The Council issued the final EHC Plan mid-March 2025 saying Y required a special educational placement for September 2025.
27. Mrs X was dissatisfied with the Council’s handling of the matter and complained to us.

Council’s response to our enquiries

28. The Council said it became aware in May 2024 Y was no longer receiving a suitable education and this was the point where its section 19 duty was triggered.
29. The Council put in place academic tuition and an animal education course at a farm between October 2024 and February 2025. The Council has called this an EOTAS package in its response to our enquiries but this is not correct. It was a package of alternative provision following the Council accepting it had a section 19 duty.
30. The Council said the alternative provision aligns with the requirements of section F in Y’s EHC Plan but it has not provided evidence to support this.
31. The Council also accepts there were delays within the annual review and phase transfer.
32. The Council has proposed the following remedy:
• A formal written apology
• £2100 for Y’s missed provision
• £250 for the distress, frustration and uncertainty caused to Mrs X

My findings

Annual review and phase transfer

33. The Council held Y’s annual review meeting in late May 2024 and decided to amend Y’s EHC Plan. This meant the Council should have sent Mrs X the amendment notice by late June 2024. The Council did not do this until late July which was a delay of one month and therefore fault. The Council then failed to issue the amended final EHC Plan which was also fault. This caused Mrs X distress, frustration and uncertainty.
34. Following this, the Council held Y’s phase transfer review in late November 2024. The Council should have issued the amended EHC Plan by 15 February in line with the timescale for phase transfers. The Council did not issue the Plan until mid March which was a delay of one month and therefore fault. This caused Mrs X distress, frustration and uncertainty.
35. We have found similar fault with the Council on a separate case. Following that case, the Council agreed to provide staff training on annual review operating procedures with a focus on reviews for pupils not in educational settings. Therefore a further service improvement is not required.

Loss of educational provision from May 2024 until October 2024

36. The Council accepted Y was no longer receiving a suitable education in May 2024 and this triggered its section 19 duty. The Council should have promptly put in place alternative educational provision for Y following this. The Council accepted Y did not receive alternative educational provision until early October 2024 which was five months later and its delay was fault.
37. Y also has an EHC Plan in place and the Council has an absolute, non-delegable duty to secure provision of special educational provision set out in the plan. As Y was unable to attend the school named on the EHC Plan, the Council should have considered how to make the provision specified in Section F away from the school. The Council accepted Y has not received the provision as set out in their EHC Plan between late May and early October 2024 which was fault.
38. As a result, Y went approximately one term without an education and the provision set out in their EHC Plan. This caused Mrs X distress, frustration and uncertainty.

Loss of educational provision from May 2024 until Feb 2025

39. In Mid-October 2024, the Council put in place 10 hours of alternative provision for Maths, English and Science plus two mornings of animal education at a farm. We would expect the Council to review the suitability of the provision every six to eight weeks. The records show it considered Y required further alternative provision in December 2024. We would expect this to be in place within four weeks but it did not put this in place until February 2025. The one-month delay in implementing this was fault. This caused Y to miss out on the increased alternative provision they were entitled to.
40. The Council said that the package of alternative provision Y received between October 2024 and February 2025 aligned with specialist provision Y is entitled to in their EHC Plan. However, it has not provided any evidence to support this. On a balance of probabilities, Y has not received all of the provision in their Plan. This has caused Y to miss out on a further term of specialist provision which could have helped them engage in the alternative provision.
41. We typically recommend between £900 and £2400 per term in recognition of lost provision, depending on the severity of loss. The Council offered Mrs X a payment of £2100 to recognise lost provision. For the period I have investigated between May 2024 and February 2025, I am satisfied the £2100 is a sufficient remedy.
42. The delays and lack of evidence of appropriate checks on provision suffered by Mrs X and Y mean that others are likely to suffer injustice in future because of similar faults. Therefore I have made a service improvement recommendation to prevent future injustice from similar fault.

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Action

43. Within one month of the final decision, the Council has agreed to:
1. Apologise to Mrs X for the distress, frustration and uncertainty caused by the Council’s failure to provide Y with a suitable education and the delays with reviewing Y’s EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
2. Pay Mrs X £250 for the distress, frustration and uncertainty caused by the Council’s failure to provide Y with a suitable education and the delays with reviewing Y’s EHC Plan.
3. Pay Mrs X £2100 to recognise Y’s missed education between May 2024-February 2025.
44. Within three months of the final decision, the Council has agreed to:
1. Create an action plan to address how it will improve checks on whether children are receiving appropriate alternative provision and special educational provision they are entitled to and take timely action to put this in place.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman