Summary: The Council failed to complete Y’s annual review and amend Y’s Education, Health and Care Plan. It also failed to consider an interim review when Y’s alternative provision failed and assess whether the provision met Y’s needs. This caused Miss X distress and uncertainty and meant Y did not receive the entirety of their Special Educational Needs provision for three and a half terms. The Council has agreed to apologise and make a payment to Miss X.

The complaint

1. Miss X complained the Council failed to provide her child, Y, with a suitable education and the provision in their Education, Health and Care (EHC) Plan. She says this caused her frustration and distress as Y has missed out on their secondary education. She wants the Council to compensate her and ensure Y receives a suitable education.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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)
5. 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

6. 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)
7. Part of Miss X’s complaint is late because it concerns council actions that she was aware happened more than 12 months before she complained to us. I have not investigated events before October 2023. It was open to Miss X to complain to us sooner about events before that date and I consider it was reasonable for her to have done so.
8. I have investigated events up to February 2025 when the Council carried out Y’s most recent annual review. Miss X has a right of appeal over the outcome of the annual review, and I consider it reasonable for her to have used it.

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How I considered this complaint

9. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
10. Miss X and the Council now have an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

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What I found

The Law

Education, Health and Care (EHC) Plans

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. 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.  
18. Where there is a significant change in circumstances, such as a breakdown in a placement, we expect the Council to consider an interim review.

Background

19. Y has an EHC Plan. In 2021 Y was excluded from school. In September 2022 the Council issued an amended EHC Plan. The Plan named Y’s placement as “a specialist school”. The SEN provision in Y’s EHC Plan included:
• A structured social interaction skills programme.
• A multisensory approach to learning to help them focus.
• Support from a suitably qualified adult mentor to help them understand their emotions.
• A highly structured and predictable learning environment.
• Access to a differentiated curriculum to allow for his learning style and social and emotional needs.
20. In early 2023 Y began receiving sports based alternative provision. During this time the Council continued consulting with potential schools for Y. Every school consulted said they could not meet Y’s needs.

What happened

21. The Council held Y’s annual review in October 2023. Reports from the provider of Y’s alternative provision showed Y was generally engaged with its provision and it could address any behaviour issues. Following the annual review the Council said it was no longer pursuing specialist schools for Y. The Council has not provided a copy of any amended EHC Plan or decision letter following this review. Y’s 2022 EHC Plan remained in place.
22. Between October and December 2023 Y continued to receive alternative provision. The Council added in 10 hours provision from a second provider, with a view to increasing it to 15 hours. Y initially engaged well with the second provider, but the placement ended in December 2023 when Y’s tutor left.
23. Y continued to receive provision from the first provider. In March 2024 the provider said it could no longer support Y at its centre but developed a bespoke at home package of three 1:1 sessions of sports based alternative provision a week.
24. In July 2024 Miss X complained to the Council. She said Y was due to go into Year 11 in September 2024 but had not received a proper education since Year 7. She said the Council had not responded to any of her correspondence about Y.
25. In August 2024 the provider of Y’s sports based alternative provision provided an annual report on Y’s progress. It noted Y was improving all the time. The Council approved a continuation of Y’s alternative provision from September 2024.
26. The Council responded to Miss X’s complaint at the end of August. It accepted its communication had been poor but said alternative provision was in place for Y. It said it had consulted with over 20 schools to try and find a placement for Y. Miss X remained unhappy and asked the Council to review her complaint at stage two of its complaint process.
27. In its stage two, the Council accepted it had failed to provide Y with a suitable education between March and September 2022, but that alternative provision was now in place. It said it had recently agreed to add functional skills to Y’s alternative provision and an annual review was planned in the next week. It paid Miss X £3000 to recognise the impact of Y’s missed provision in 2022. Miss X complained to the Ombudsman.
28. In response to our enquiries the Council has provided no evidence the October 2024 annual review took place. The records provided show it carried out an annual review for Y in February 2025. Following the annual review Miss X said she no longer wanted Y to receive alternative provision and wanted Y to receive their education in a college. The Council issued an amended final EHC Plan in March 2025, naming a “general further education” college. The Council continues to consult with colleges to meet Y’s needs.

My findings

29. The provision in Y’s 2022 EHC Plan was intended to be delivered in a specialist school. In Y’s October 2023 annual review, the Council said a specialist school was no longer appropriate, and Y was engaged with their alternative provision. Despite this the Council failed to issue an amended Plan following the review. Miss X could then have appealed this Plan if she remained unhappy. This was fault. This caused Miss X uncertainty over what SEN provision Y was entitled to and denied Miss X her right of appeal to the SEN Tribunal. It left Y with a school-based EHC Plan when Y had not attended school for several years.
30. In December 2023 the extra alternative provision put in place for Y ended. In March 2024 the remaining provider said it could not meet Y’s needs at their centre and had to adapt its provision for delivery at Y’s home. On both occasions the Council should have considered whether Y needed an interim review, to ensure their EHC Plan continued to meet their needs. There is no evidence the Council considered an interim review. This was fault and caused Miss X further uncertainty over the suitability of Y’s SEN Provision.
31. Between October 2023 and December 2023 progress reports from Y’s alternative provision show Y was engaged with the provision. The Council added to the provision during this time with a second provider. While Y was not in the specialist school specified in their Plan, the records show the Council continued to consult with schools and none said they could meet Y’s needs. I am satisfied that Y received a suitable education during this time. The Council was not at fault.
32. When Y’s extra provision ended in December 2023, there is no evidence the Council assessed the suitability of Y’s remaining provision to ensure it met their needs. While Y’s original sports based alternative provision remained in place, the Council failed to replace the extra provision, leaving Y with less provision from January 2024. This was fault.
33. Y was due to transition to post-16 provision in September 2024. The Council should have carried out a review before March 31, specifying Y’s post-16 provision. The Council failed to do this. This was fault. Miss X then complained in July 2024. In its stage two response the Council said an annual review was planned for October 2024. This review did not take place until February 2025. This was fault.
34. Between January 2024 and February 2025, the Council failed to continually assess Y’s alternative provision, failed to replace lost provision, and failed to review Y’s Plan. This was fault causing Y to miss out on parts of their education for three and a half terms and causing Miss X distress and uncertainty. The failings occurred at a crucial time for Y as they were due to transition to post-16 education in September 2024.
35. The Council has already agreed to review its SEN delivery following earlier Ombudsman decisions. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Action

36. Within one month of the final decision the Council has agreed to:
1. Apologise to Miss X for the distress and uncertainty caused by the failings identified this decision. 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.
2. Pay Miss X £500 for the distress and uncertainty caused by its failure to review Y’s Plan, offer Miss X her appeal rights and consider an interim review for Y.
3. Pay Miss X £3500 to recognise the impact of not delivering the entirety of Y’s SEN provision for three and a half terms between January 2024 and February 2025.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. I find fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman