Summary: Ms X complained the Council delayed issuing her child, C, with a final Education, Health and Care Plan and has not provided them with suitable education. The Council is at fault. This has caused distress to Ms X and family and missed education for C. I have recommended remedies.

The complaint

1. Ms X complained the Council has delayed issuing her child with a final Education, Health and Care (EHC) Plan and has not provided suitable education during this time. This has caused Ms X and the whole family distress and caused C to miss education. This is their injustice. Ms X would like the Council to issue an EHCP for her child and provide them with education.

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The Ombudsman’s role and powers

2. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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. 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)

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What I have and have not investigated

5. I have only investigated the Councils delay issuing the EHC Plan. I have not investigated the contents of the EHC Plan. If Ms X is not happy with this, she has a right of appeal to the Special Education Needs Tribunal.

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How I considered this complaint

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

The Education, Health and Care Plan 

8. 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. 
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. 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.
11. 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.
12. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

General section 19 duty

13. 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.
14. 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)
15. 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

16. C has extreme anxiety caused by medical conditions for which she has formal diagnoses.
17. C started at secondary school in September 2020. C’s attendance became sporadic in year eight and declined significantly in year nine.
18. The school applied for an EHC Plan in February 2022 as C’s needs were beyond what it could offer within its universal and SEND support provision.
19. The Council issued a final EHC Plan in September 2022.
20. The Council held a review of the EHC Plan in February 2023.
21. Ms X complained to the Council in April 2024. She referred to her previous complaint which the Council upheld six months earlier when it promised to issue the final EHC Plan for C. Ms X said she had still not received the final EHC Plan and C had not attended school during this time. Ms X said she had tried to contact the Council to discuss but had not received a response.
22. The Council issued a stage one response in May and a stage two response in July. The Council upheld Ms X’s complaint and said the service she had received since C’s annual review in February 2023 had not been acceptable. It said the Council is at fault for not completing the amended EHC Plan in line with the statutory timescales and there had been significant delays. It apologised and offered the following financial remedy after considering the Ombudsman’s guidance on remedies:
• For time and trouble, £500.
• For distress, £500.
• For missed education, £6,000. This is worked out at £2,400 per term, for two and a half terms to cover the period November 2023 to July 2024.

This was a total of £7,000.

23. The Council explained the delay was caused by changes in staff and a high volume of work. The Council said it is working hard to increase capacity and improve consistency within the SEND assessment service.
24. In response to my enquiries, the Council said it had allocated a new SEND Officer to C who had already contacted Ms X to discuss C’s case. The Council said the Officer will make necessary amendments to the EHC Plan.
25. In October, Ms X complained to the Ombudsman. She said the Council upheld her complaint in July but had still not issued a final EHC Plan. At this point, Ms X said C had been out of education for nearly two years. This has caused Ms X, C and the whole family distress and C has missed education.
26. In the middle of December, the School held an EHC Plan review meeting. Ms X attended. The attendees agreed to consider the information from the previous review and to also consider the case as a year 11 Annual Review which was also due. Ms X said she would prefer education otherwise than in a school or college (EOTISC) for C as part of the year 11 phase transfer for provision post 16. As part of this package, she suggested sports coaching, beauty therapy and private tuition among other provision. The meeting noted concerns about the lack of provision provided and C’s inability to engage with those that were available.
27. The Council issued a draft EHC Plan in March 2025, and a final EHC plan in April.
28. In response to my enquiries, the Council accepted it had not made any significant progress with this case since August 2024. It explained this was due to changes in the SEND department staffing, structures and processes. To ensure no further delay in this case, the Council explained the SEND Officer is working with Ms X to ensure the EOTISC package is secured. In early April 2025, the SEND Officer emailed Ms X for further information about her request for vocational training for C as part of the EOTISC package. They also told Ms X they had made a referral for tutoring in Maths and English. Ms X is in correspondence with the SEND Officer about this. The provision is not yet in place.
29. In response to my enquiries, the Council said C remained on the roll at school. It explained the provision it and the school had put in place for C was several and varied. It included flexible school patterns and part time timetables, one to one meet and greet with key staff, phased reintroduction to school, tutoring sessions, sporting provision, holistic therapy and other services. The Council said these have been in place at different times throughout the period reflected in the Councils complaint response in July 2024, up to the present day.

Analysis – is there fault causing injustice?

30. The Council admitted in its complaint response there had been significant delay completing the final EHC Plan. The Council held the annual review in February 2023. When the Council issued its complaint response in July 2024, it had delayed issuing the EHC Plan by roughly two and a half terms (November 2023 to July 2024) of education. The Council apologised for the delay and offered Ms X £2,400 per term. This is at the top end of the scale of recommended remedies for missed education in the Ombudsman’s guidance on remedies. The Councils response and remedies are reasonable, appropriate and in line with our guidance.
31. The Council issued the final EHC Plan in April 2025, roughly eight months after its stage two complaint response. This is roughly a two-year delay in the EHC review process. This is extra fault, which goes beyond that which the Council has already admitted in its complaint response. During this time, C was not attending school, and although varied provision was in place, as had been throughout, it was of limited success and C has missed education during this time. Ms X also says some of the provisions were discussed but not implemented. As there was further delay finalising the EHC Plan, I consider the Council should extend the above payment to the date it finalised the EHC Plan. This covers the period July 2024 to April 2025 which is roughly a further two and a half terms. As the EOTISC provision is not in place, I consider the Council should make payments until it is.
32. To ensure no further delay, the Council has allocated a new SEND Officer who is working with the family, has finalised the EHC Plan and is working towards getting the EOTISC provision in place. The situation is improving which limits any further delay and injustice.
33. The Council offered Ms X a £500 remedy for the distress caused and £500 for her time and trouble. It explained this was in line with the Ombudsman’s guidance on remedies. The Ombudsman’s guidance on remedies suggests a payment of up to £500. The offer made by the Council is therefore in line with what we expect. I consider this to be a reasonable offer. The Council has unfortunately not improved the service it has provided which is extra fault, causing further distress, time and trouble. This is further fault causing further injustice. I have recommended a further remedy.

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Action

34. Within four weeks of my final decision, the Council agree to:
• Work with Ms X and providers to secure the EOTISC provision as set out above. Provide updates to all parties fortnightly until the provision is secured.
• Pay Ms X for the benefit of C, £6,000. This represents a further two and a half terms of missed education for the period July 2024 to April 2025.
• Make further payments to Ms X for the benefit of C for missed education until the EOTISC is in place. The Council should use the same calculation of a rate of £2,400 per term. Should this continue for longer than six months, the matter is to be referred back to the Ombudsman.
• Pay Ms X £500 for distress.
• Pay Ms X £500 for time and trouble.
• Remind staff about the importance of statutory timeframes.

The above recommendations are in addition to any previous remedies.

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

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Decision

36. 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