Summary: Miss X complained about the Council’s delay issuing her child, Y’s amended final Education, Health and Care Plan, failed to provide suitable alternative provision while Y was out of school, communicated poorly and delayed responding to her complaint. We find the Council at fault, causing Miss X avoidable distress and uncertainty. The Council has agreed to apologise, make a payment to Miss X, and issue Y’s amended final EHC Plan.

The complaint

1. Miss X complained about the Council’s delay issuing her child, Y’s amended final Education, Health and Care (EHC) Plan and failure to provide Y with suitable alternative provision whilst out of school.
2. Miss X also complained about the Council’s poor communication and delay responding to her complaint.
3. Miss X says this has impacted her mental health and Y’s education.

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The Ombudsman’s role and powers

4. 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)
5. 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)
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. The issues Miss X is complaining about began in March 2023. Normally, complaints should be brought to the Ombudsman within 12 months of the complainant becoming aware of the issue. Miss X submitted her complaint in October 2024. Given the changes in council staff, delays in communication, and the time taken to handle her complaint, it was reasonable for Miss X to allow the Council an opportunity to respond before escalating the matter. Considering these delays and her ongoing efforts to raise concerns, I have decided to investigate Miss X’s full complaint.

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How I considered this complaint

9. I considered evidence provided by Miss X and Council as well as relevant law, policy and guidance.
10. Miss 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 legislation and guidance

EHCP

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 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) 
13. 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.
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 amended final EHC Plan within a further eight weeks.

Alternative provision

15. 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.
16. 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)

What happened

17. In January 2023, Miss X requested an EHC needs assessment for her child, Y.
18. In March, Y stopped attending school due to anxiety.
19. In July, Y was offered a provisional place at school A, on the condition that funding would be approved and in place within a week. Miss X informed the Council of this. The following day, she emailed the Council, stating she had received no response to her communications over the past three weeks, did not have a named caseworker, and explained the importance of agreeing the funding. She also contacted her MP with the same concerns.
20. Miss X’s MP contacted the Council twice, first, requesting urgent consideration of the funding request, and then to relay that Miss X had been told the funding could not be approved in time because the previous caseworker had not processed the application due to missing information. The Council acknowledged the emails and said they would be forwarded to the complaints team for investigation and response.
21. Later that month, Miss X submitted a formal complaint to the EHC team manager. A month later, she received a response advising that a decision on school placement would be made soon.
22. Miss X forwarded this response to several council officers and her MP. The Council acknowledged the email and said it would be passed to the complaints team.
23. Later in July, the Council arranged for Y to receive a tutoring package to support her transition back into school.
24. In September, Y’s final EHC Plan was issued, naming school A.
25. In October, Y started to attend school A, joining the year below her chronological year group.
26. In April 2024, Miss X requested a review of Y’s EHC Plan to reflect changes in her support needs and medical conditions.
27. In July, an annual review took place.
28. Later that month, the Council responded to Miss X’s complaints. It acknowledged delays and inconsistent communication and apologised for the impact that has had on the family.
29. In August, Miss X escalated her complaint due to the delay in receiving a Stage 1 response. She also raised:
• the lack of response to her April review request;
• the absence of an amended final EHC Plan following the annual review;
• an outstanding request for permanent one-to-one support for Y; and
• ongoing difficulties contacting the SEND service and her caseworker.
30. In October, the Council responded. It:
• acknowledged delays responding to the Stage 1 complaint, citing a significant backlog;
• explained the funding request had gone to panel but was deferred due to incomplete paperwork;
• confirmed it was still processing the annual review; and
• apologised for the poor communication.
31. In response to my enquiries, the Council stated it was unaware that Y was not attending school until July 2023. It acknowledged the amended final EHC Plan had not been issued within statutory timescales and said there is no clear reason for the delay. However, it cited staffing pressures and said it intends to issue the amended plan by the end of March 2025.

My findings

Alternative provision

32. Y was out of education from March 2023 to October 2023. The Council was not aware of this until July. A Council is not at fault for failing to provide education if it is not aware a child is out of school. In this case, once the Council became aware, it arranged for Y to receive tutoring from August to support her transition back into school. The Council also agreed for Y to repeat a school year, allowing her to start year 10 (instead of year 11) at school A in October 2023. This means she can complete her full two-year GCSE course. These actions were appropriate and so the Council was not at fault.

Poor communication

33. The Council has acknowledged and apologised for the poor communication by its case workers. This was fault. I am satisfied the Council has taken steps to mitigate any negative impact on Y’s education, however, the poor communication has caused Miss X avoidable distress and uncertainty.

EHC Plan review

34. The Council has accepted it has not issued the amended final EHC Plan within the statutory timescales. Although it stated the plan would be issued by the end of March 2025, this has not occurred, resulting in a delay of seven months to date. This is fault. While I cannot confirm if Y has missed out on any special educational provision, the delay has frustrated Miss X’s right of appeal to the SEND Tribunal. It has also caused her distress and uncertainty while trying to find a suitable college for Y to attend from September.

Complaint handling

35. It took the Council 271 working days to respond to Miss X’s Stage 1 complaint, far exceeding its target of 20 working days. This 11-month delay was fault. It caused Miss X distress, uncertainty, and time and trouble chasing the complaints, as well as prolonged the issues she had raised.

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Action

36. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to:
• apologise to Miss X in line with our guidance on Making an effective apology;
• pay Miss X £100 to recognise the distress and uncertainty caused by its poor communication;
• pay Miss X £300 to recognise the distress, uncertainty, and time and trouble caused by delays in complaint handling;
• issue the amended final EHC Plan for Y; and
• once the amended final EHC Plan is issued, the Council should remedy, in line with our Guidance on Remedies, any provision Y would have had sooner but for the delay (in this case since September 2024).
37. I have not recommended any action for the Council to take to improve its services. This is because in January 2025, the Council agreed to review its procedures to ensure it can respond to complaints within the timescales set out in its policy. It has also provided details of the action it is taking to prevent delays in issuing amended EHC Plans.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman