Summary: Mrs X complained about the Council’s handling of her son’s Education, Health and Care annual review and alternative provision after he stopped attending school in summer 2024. We found the Council delayed proper assessment of its section 19 duties after June 2024 and delayed putting alternative provision in place for the child. The Council also failed to consult special schools and was late to issue a final amended EHC Plan following and annual review in June 2024. This caused Mrs X and her son frustration and delayed support the Council agreed to in December 2024. The Council agreed to remedy the injustice its actions caused them.

The complaint

1. Mrs X complains the Council failed to:
• complete the June 2024 annual review of her son, Z’s, EHC Plan in line with statutory timescales;
• deliver the content of Z’s EHC Plan to him;
• arrange alternative provision when Z became too unwell to attend school in summer 2024; and
• communicate with her effectively about her concerns.
2. Mrs X said the matter caused her distress, frustration and uncertainty. Mrs X said Z lost out on the content of his EHC Plan.
3. Mrs X wants the Council to complete the EHC review process, reimburse the cost of a private report, and pay a financial remedy for Z’s lost EHC provision.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
8. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
10. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
11. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
12. 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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How I considered this complaint

13. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
14. 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

15. There are time limits within which the Council must comply with the SEND Tribunal’s orders. These time limits are contained in Regulation 44 of the Special Educational Needs and Disability Regulations 2014.
16. Where a SEND Tribunal orders the Council to amend the setting named in the EHC plan, the Council must issue the amended EHC plan within two weeks of the order being made.

EHC Plan provision and Annual Reviews

17. A child with special educational needs may have an Education, Health and Care plan (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about special educational needs and provision or name a different school. Only the Tribunal can do this.
18. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
19. The Council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
20. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
21. Councils must review an EHC Plan at least every 12 months.
22. Within two weeks of the review meeting the school must prepare and send out a report setting out any amendments to the EHC Plan it is recommending.
23. Within four weeks of the review meeting, the Council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent of its decision.
24. If the plan needs to be amended, the Council should start the process of amendment without delay.
25. The Council must send the draft EHC Plan to the child’s parent and give them at least 15 days to give views and make representations on the content.
26. When changes are suggested to the draft EHC Plan and agreed by the Council, it should amend the draft plan and issue the final EHC plan as quickly as possible, but within eight weeks of the date the Council held the annual review meeting.
27. Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC Plan.
28. In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

EHC Plan reassessment

29. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
30. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
31. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.

Educational provision – available and accessible

32. 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)
33. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
34. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
35. The education provided by a council must be full-time unless it 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)
36. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
37. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

38. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.

What happened

39. In January 2024 SEND Tribunal issued an Order which stipulated the Council would finalise the agreed working EHC Plan document and name “special” as type of placement that Z should attend.
40. The following months Mrs X emailed the Council asking it to provide alternative provision for Z because his school placement was at breaking point.
41. In March 2024 the Council issued Z’s final EHC Plan following the SEND Tribunal Order naming a type of school as special school in section I. Around this time Z began accessing 1 hour per week of mentoring that was partially funded by the school from additional funds the Council assigned to it for Z’s provision.
42. In April 2024 the Council told Mrs X that Z’s school should use the funding it had available to secure alternative provision for him if this was needed.
43. In June 2024 Z stopped attending the mainstream school he was on roll with. The Council held an annual review meeting of Z’s EHC Plan a couple of weeks later. During this meeting Mrs X asked the Council to provide Z with Education Other than At School (EOTAS) as she considered no other school could suitably meet his needs. She also asked the Council to re-assess Z’s needs because she considered the professional reports needed updating to reflect his current needs. Following the annual review the Council should have issued Z’s final amended EHC Plan by early September 2024.
44. Mrs X complained to the Council in early August 2024. She said that since the annual review meeting the Council had not contacted her or issued a decision letter what it would do about Z’s Plan. It also failed to respond to her EOTAS request. Mrs X told the Council she considered Z could not attend any school, and the Council should provide him with alternative provision under its section 19 duty. Additionally, Mrs X said the Council failed to respond to her request for reassessment of Z’s needs and as a result she had to obtain a private Occupational Therapy report which cost her £1050. The communication throughout the process with the case officer and managers was poor which caused her additional uncertainty about what was going on, especially since she did not know what school Z would attend from September 2024.
45. The Council responded to Mrs X’s complaint at the end of the month. It apologised for the lack of decision letter following the annual review which it should have sent within four weeks from the meeting. The Council told Mrs X that it had amended Z’s EHC Plan, and it would send a draft within the next three days. It accepted that in school year 2023/2024 Z had missed three OT sessions because of his absence at school, and it offered £210 to remedy this. The Council said that Z was still on roll with his school and it expected the school to put provision in place for him if he was not attending. It also confirmed that Mrs X’s request for EOTAS would be presented before the Council’s Panel the following day, and once the Council had this outcome it would tell her about this. The Council also accepted fault for not always adhering to its communication standards of returning calls and emails within two and five workdays respectively.
46. The following day the Council’s Panel did not agree to provide EOTAS for Z. It also did not agree to reassess Z for OT, EP and Speech and Language Therapy (SALT). The Council said that Z’s school should refer him for online tuition and that SEND Tribunal ordered a type of school to be named in the Plan, rather than individual provision. The Council’s records show that Z’s school did not make these referrals after consulting with Mrs X who said that Z had limited capacity to engage with online learning.
47. In early September 2024 Mrs X responded to the Panel decision and asked for her complaint to be considered further. She said the Council has still not issued a draft EHC Plan following the annual review from June 2024 and Z was missing out on this provision. She said Z continued to attend his mainstream school, but this was not the correct type of school as per the Tribunal Order, and it was not suitable for his needs.
48. The Council acknowledged Mrs X’s complaint in September and sent her a holding letter in October confirming it would reply within the next six days.
49. Three days later the Council sent her its final complaint response. In it the Council:
• apologised for the three-day delay in responding to her initial complaint;
• said it would not consider her complaint about missed OT in 2022 because this aspect of her complaint was late;
• the complaints process would not lead to specific school being named in Z’s EHC Plan, but he was still on roll with his mainstream school, and it remained responsible for providing him with education;
• the complaints process cannot offer the reimbursement for the private OT report as this is a decision the service would have to take. The Council asked the service to get back to Mrs X about its decision with regards to the private assessment reimbursement and the cost of the missed OT sessions.
50. Mrs X was not happy with the Council’s response, and she asked the Ombudsman to investigate.
51. In late October 2024 the Council agreed to explore a short-term alternative provision package for Z. The Council said this would take place over the next six weeks and should not consist of direct therapies because Z’s EHC Plan did not contain those.
52. In early December 2024 the Council agreed to provide five hour per week of the mentoring programme that Z had been accessing since March 2024.
53. In January 2025 the Council realised that it had not made any consultations with a specialist school to ensure that Z had a specialist school place as per his EHC Plan. It sent a consultation out to Mrs X’s preferred school, and in April 2025 the specialist school offered a place for Z starting in September 2025. Shortly after, the Council agreed to extend its alternative provision offer to Z between April 2025 until September 2025 when he would begin to attend his special school.
54. In February 2025 the Council accepted that it was at fault for the delays in the annual review process and offered to pay £400 to Mrs X to recognise the impact the delays may have had on her. It also said that it had agreed to buy a laptop for Z as it has realised this was necessary for him to access the mentoring sessions that he was engaging with.
55. In early July 2025 the Council issued Z’s final amended EHCP Plan following the annual review it held in June 2024.

Analysis

SEND Tribunal January 2024 and EHC Plan provision

56. Following the SEND Tribunal Order from January 2024 the Council should have issued Z’s final amended EHC Plan within two weeks, but it did not. This is fault.
57. This caused Mrs X avoidable distress and frustration.
58. The SED Tribunal decided that Z should be attending a special school, and this is what the Council named in section I of his March 2024 EHC Plan.
59. However, the Council’s records show that between January 2024 and December 2024 it failed to consult any special schools to check if it could meet Z’s needs and had places available. This is fault.
60. We accept that between January 2024 and June 2024 Z continued to attend his mainstream school, however based on the SEND Tribunal’s decision this was not the suitable type of school to meet his needs. The final EHC Plan the Council issued in March 2024 said that Z’s needs could be met by the provision available to him within school. This is likely true, had he attended a specialist placement as per his EHC Plan, however he did not.
61. The fact that Z has an EHC Plan means that he needs special educational support to be able to interact and achieve education to the best of his abilities. I am not able to say the Council would have secured a place at a special school for Z had it consulted it sooner than January 2025, however this caused a significant uncertainty about what would have happened and what other support Z would have received hat the Council acted without fault.

June 2024 annual review

62. The Council accepted it was at fault for the delay in completing Z’s annual review process from June 2024. This caused Mrs X avoidable uncertainty and frustration and delayed her right to appeal to the SEND Tribunal.
63. In February 2025 the Council offered to pay Mrs X £400 for the delay in the process. We consider this is not a suitable remedy considering the Council did not issue a final EHC Plan until July 2025, so over 12 months after it held the review.
64. This frustrated Mrs X’s right of appeal to the SEND Tribunal in relation to the number of OT hours Z should receive a naming a specific special school in section I of his EHC Plan.

Alternative provision

65. In April the Council told Mrs X his school was responsible for securing alternative provision for him. I have seen no evidence showing the Council effectively assessed Z’s needs and checked if its section 19 duty applied. This is fault.
66. The Council should not assume the school would implement alternative provision. Even if the school was providing something we would expect the council to ensure the alternative provision was suitable to meet Z’s needs.
67. In August 2024 the Council decided that it would not approve EOTAS to Z. This was because it considered that he was on roll with a school and his EHC Plan did not have any direct therapies within his final EHC Plan. It considered that the school was responsible for providing any alternative provision if Z did not attend.
68. I consider the Council’s decision-making process was flawed. This is because:
• whilst the Council did not agree an EOTAS, I consider it should have assessed and documented if it needed to provide alternative provision to Z under its section 19 duty;
• at the time Z was not attending a type of a suitable to meet his needs placement named in his March 2024 final EHC Plan and the Council had not made any attempts to secure such a placement for him;
• the Council’s records do not show what it considered would be an equivalent to a suitable education and it failed to check if this is what Z’s school was implementing for him.
69. On balance, I consider this meant Z missed on education which was suitable to his needs between April 2024 and December 2024. This is because in December 2024, after evaluating all the available information the Council agreed to provide additional hours of mentoring to Z. I consider its likely the Council would have arrived at this decision sooner had it assessed whether its section 19 duties in April 2024 and again in August after Mrs X asked for alternative provision for him.

Communication standards

70. The Council accepted that it was at fault for not always responding to Mrs X’s communications within the expected timeframe. This caused Mrs X avoidable uncertainty and frustration.
71. In June 2024 Mrs X asked the Council to reassess Z’s needs. The Council should have told her within 15 days if it would complete the reassessment. The Council did not make this decision until late August 2024 and I consider this is fault.
72. I have also not seen any evidence to show the Council told Mrs X that she could appeal its decision to re-assess to the SEND Tribunal. I consider this is fault.
73. On occasion we can recommend the Council repays costs that are directly caused by the Council’s fault. To find the Council responsible for these costs we would have to decide it was a reasonable action for Mrs X to take. We are satisfied it was.
74. From the records we have seen, it is clear to us that, before instructing the private OT assessment Mrs X asked the Council for a re-assessment of needs to ensure that Z received support he needed. Despite her efforts, Z, an already vulnerable young person, was not getting the education and the therapy that he needed. Mrs X said she felt she had no choice but to pay £1050 for private OT assessment. Mrs X waited around eight weeks from the date of the annual review before involving a solicitor. Additionally, only after she did, the Council accepted that a further OT assessment was needed and later commission its own OT to complete another assessment.
75. We consider the Council’s fault resulted in Mrs X’s avoidable private OT costs. Therefore, we recommend the Council should pay back Mrs X’s OT costs in full. This will have the effect of putting Miss X back in the position she would have been had the fault not occurred.
76. Additionally, in October 2024 the Council recommended the service should get back to Mrs X about its considerations and decision whether it would reimburse her the cost of the private OT. I have seen no evidence of any such response, and I consider this to be fault. This further contributed to Mrs X’s avoidable uncertainty and frustration.

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Action

77. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs X for the significant delay in the annual review process which delayed her right of appeal in relation to the OT provision and the distress and frustration this has caused her. The Council should refer to our guidance on making an effective apology;
• pay Mrs X £800 to remedy the distress, frustration and unnecessary she experienced as a result of the Council’s lack of consultations between January 2024 and December 2024, delays in annual review process and poor communications;
• pay Mrs X, on behalf of Z, £1900 for the missed provision between April 2024 and December 2024; and
• pay Mrs X £1050 for the private OT assessment she felt she had to obtain after the Council failed to respond to her re-assessment request within the statutory timescales.

Within three months of the date of the final decision statement, the Council will:

• issue a reminder to staff about the importance of checking if the Council had completed its own recommendations made as part of the corporate complaint process;
• issue reminder to staff about the importance of assessing and documenting the Council’s decision in relation to its section 19 duties.
5. The Council should provide us with evidence it has complied with the above actions.

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Decision

79. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman