Summary: Ms X complained the Council failed to respond to her request for an urgent annual review of her child Y’s Education Health and Care Plan. There was fault by the Council, including a failure to consider its duty to arrange alternative educational provision or secure special educational provision, failures in communication, poor complaint handling and a failure to amend Y’s Plan within the required timescales. This caused avoidable frustration, uncertainty and a financial loss. The Council will apologise and make payments.

The complaint

1. Ms X complained the Council failed to respond to her request for an urgent annual review of her child Y’s Education, Health and Care (EHC) Plan and failed to arrange alternative educational provision and/or special educational provision.
2. Ms X said as a result, she has had to fund educational provision herself as well as paying for independent specialist advice. She has also suffered avoidable distress and frustration.

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The Ombudsman’s role and powers

3. 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.
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. 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)
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 the parties as well as relevant law, policy and guidance. The parties 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

Law and guidance

8. 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. (Education Act 1996, section 19). We refer to this as alternative education provision or AP.
9. Where it is clear a child will be away from education for 15 days or more, council should liaise with medical professionals to ensure minimal delay in arranging AP (Arranging education for children who cannot attend schools because of health needs, December 2023)

10. 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 which include:
• Section B: Special educational needs (SEN)
• Section F: The special educational provision (SEP) needed by the child or the young person.
• Section I: The name and/or type of educational placement.
• Section J: Personal budget.
11. If a council decides it would be inappropriate for special educational provision to be delivered in any school, it can agree for it to be delivered somewhere else. This is called Education Otherwise than in a School (EOTAS.) (Children and Families Act 2014, section 61.) The council must arrange and pay for EOTAS. Section I of the Plan is blank where the council has agreed EOTAS.
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 2014).
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 take place. The process is only complete when the council issues a decision about the review.
14. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. 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.
16. The parent must have at least 15 days to comment and make representations on proposed changes including requesting a particular school (SEN Code paragraph 9.195)
17. If the council decide to continue with the amendments, it must issue the final amended EHC Plan within eight weeks of the amendment notice. (SEN Code paragraph 9.196)
18. A personal budget (PB) is money a council has identified to deliver provision in an EHC Plan (SEN Code paragraph 9.95).
19. A parent has the right to request a PB during an annual review. (SEN Code paragraph 9.98).
20. A council does not have to carry out an urgent/early annual review, but we would expect councils to respond promptly in writing to a parent who requests one.
21. 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 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.
22. Our Principles of Good Administrative Practice set out our expectations of councils providing services to the public. We expect councils to be citizen focussed. This includes dealing with people helpfully, promptly and sensitively.

What happened

23. Y has SEN and has an EHC Plan. The amended Plan of July 2022 named an independent special school (School A). There were no concerns with Y’s attendance until September 2023.
24. Ms X emailed the Council’s SEND Team in the middle of January 2024 explaining Y’s school attendance had been low (about five hours a week) since September 2023. She said Y had become ill with various new physical and mental health conditions and asked for an urgent annual review of his EHC Plan. She received an email auto-response from the Council, but nothing else.
25. Ms X complained to the Council at the end of January about the lack of a response to her email summarised in the last paragraph (I have referred to this as Ms X’s first complaint as she made two further complaints to the Council). She said Y was unable to attend school since September 2023 because of challenges to his physical and mental health. She attached medical evidence, attendance data showing School A had categorised Y’s absences as illness and a summary of issues. She asked for a PB to pay for tuition she had already put in place and for the Council to arrange an Educational Psychologist’s assessment before the annual review meeting because Y’s needs had changed and he needed a re-assessment.
26. The Council told Ms X it intended to deal with her correspondence as an enquiry rather than a complaint.
27. There was an annual review meeting held by School A in the middle of March 2024. It was noted:
• Y’s attendance was at 5% for the current school year and he had only attended one specific lesson
• School and parents thought School A was no longer suitable for him due to the ‘significant development of his needs presentation’
• Parents had looked at 10 schools and each said they could not meet his needs. Parents feel he needed EOTAS.
• School A may not be able to sustain the placement and was willing to waive the term notice period.
28. School A suggested some changes to Y’s EHC Plan.
29. Hearing nothing with regards to her complaint, Ms X chased the Council in March. The Council responded at stage one of the complaint procedure at the end of March saying:
• School A did not tell it Y had been unwell. Once made aware, the Council had asked School A to arrange an annual review as soon as possible to ensure the Council could respond to her requests for a PB and AP.
• The AR meeting took place mid-March. Information about AP was shared with her at the meeting.
• The documents following the review had been received and would be considered by the funding panel. The case officer was the contact for them to discuss AP.
• The Council had not received any request from School A for additional funding for AP. The Council was working with School A around reimbursement of tuition fees Ms X had paid.
• School A had given notice to end the placement for Y.
30. Ms X escalated her first complaint to the final stage of the X Council’s complaints procedure in April.
31. Also in April, the funding panel considered Y’s case, noting:
• He was on the roll at School A which had given notice and said it would not be beneficial for him to return in September.
• Ms X had arranged for Y to have tuition in Maths, English and Science (the core subjects).
• He had been very unwell since Summer 2023 and had only been able to attend school part-time since September 2023
• During the annual review, tuition was discussed and seemed to be going well. Parents were funding tuition and had asked for EOTAS.

The panel decided to refuse an EOTAS package, but it agreed to fund AP for tuition in Maths English and Science for the summer and autumn terms and would ‘work with the family to build a package of AP.’

32. Ms X made a second complaint to the Council at the end of April. She said there had been no decision from the Council following Y’s annual review meeting in March. The Council acknowledged receipt, but it did not respond to the complaint at this stage.
33. The Council’s final response to the first complaint in May 2024 said:
• Y’s annual review took place in mid-March and so was (at the time) still within the 12-week timeframe for amending the EHC Plan, although the decision to amend letter was overdue.
• The request for EOTAS was refused in April, but the Council agreed to AP for the summer term
• School A was responsible for providing educational provision with the funding the Council had given them. The Council was working with the school around reimbursement of their tuition fees
34. In June, the funding panel agreed to fund Y’s tuition (in core subjects) for the rest of the school year and for the autumn term (September to December 2024) while the SEND term worked with the family to build an Alternative Provision package.
35. Ms X escalated her second complaint (see paragraph 32) in the middle of June. She asked the Council to respond. The Council provided a copy of its final response to her first complaint. Ms X pointed out the Council was confused and she was asking for a reply to her later (second) complaint made in April. The Council apologised for the confusion.
36. The Council’s response to the second complaint at the start of July said the reason for the delay was due to her requests for changes to an EHC Plan that require funding decisions and those requests needing to be taken to panel. The Council said it would issue a draft EHC Plan shortly.
37. The Council issued a draft Plan on 8 July.
38. At the start of August, the SEND case officer emailed Ms X saying:
• The Council had not been able to find a provider for the rest of Y’s AP package and so it was offering her a direct payment (PB) for part of Y’s educational package (the provision that wasn’t core subjects).
• The Council would continue to pay the tuition company that had been providing core tuition to date and so this would not be part of the PB.
39. Ms X complained to us in October 2024.

Events since the complaint to the LGSCO

40. In November, the funding panel agreed to reimburse Ms X for educational provision she arranged for Y for the Spring Term of 2024 (15 January to 15 March 2024) (tuition in core subjects at £3274.67), but not the EP assessment she had commissioned. The record said that the EOTAS package met Y’s needs and so the Council would not pay for the private EP advice.
41. In December, the funding panel agreed a PB for Y’s special educational provision for the Spring Term of 2025 – the total cost of the package was £7432.74. The record of the panel’s decision refers to ‘the EOTAS package meeting Y’s needs.’
42. At the end of January 2025, Ms X made a third complaint to the Council. She said she had been misled by the case officer into obtaining private advice to support amendments to Y’s EHC Plan. She said the case officer had told her obtaining private reports would speed up the process of amending the EHC Plan, yet had recently been told that the Council would not include information from private reports at this time. The Council’s response said Ms X’s third complaint was closely linked with the issues which she had brought to us and so would not provide a further complaint response.
43. Y’s final amended EHC Plan of February 2025 has a PB setting out individual costs of tuition in core subjects and other subjects and educational activities for Y including History Latin Drama Philosophy Debating Climbing Swimming and Music. Section I is blank.

Information from Ms X

44. Ms X told me:
1. Contrary to what the Council had said it would do, it had not (at the time) reimbursed her the £3274.67 for Y’s educational provision (tuition in core subjects) in the Spring Term of 2024. Nor had she been reimbursed payments of £4070.18 and £2040.40 for the same tuition in core subjects she arranged in Summer and Autumn Terms of 2024 respectively.
2. The prepayment account/card the Council had issued to her for Y’s PB (direct payment) had not got any funds transferred into it and so she could not pay for ongoing provision.
3. The case officer told her getting private advice/reports would speed up the process.

Information from the Council

45. The Council provided evidence it made a payment into Ms X’s PB account on 30 April 2025 which covered the £3274.67 for Y’s provision in the Spring Term of 2024. The Council accepted it had not made the other two payments set out in paragraph 44(a).

Was there fault?

46. There was fault because:
1. The Council should have considered the Section 19 duty in the middle of January 2024 when Ms X first notified the SEND Team Y had been absent from School A for more than 15 days. The Council should have also considered her request for an urgent annual review at the same time and provided her with responses to her requests for AP and an early annual review, explaining the reason(s). While there is no legal duty to hold an urgent annual view, we consider the delay in considering Ms X’s request and responding to it, was not citizen focused or in line with our Principles of Good Administrative Practice. The Council did not consider the Section 19 duty until April 2024. The delay in considering the duty was not in line with statutory guidance which expects councils to consider an absence case and arrange AP promptly where the view is the child cannot attend school on health grounds. The Council’s delay was also not in line with the duty in Section 42 of the Children and Families Act 2014 to secure the SEP in Section F of Y’s EHC Plan.
2. The Council should have made the same considerations and decisions as in point (a) when Ms X complained to it at the end of January.
3. The Council should have provided a written decision in response to Ms X’s request for an EHC needs re-assessment in January 2024 within 15 calendar days. This decision was never made although later records indicate the Council considers Y’s current EOTAS package meets his needs suggesting it does and did not think a reassessment was or is necessary.
4. Y’s annual review meeting took place in the middle of March 2024. The decision to amend Y’s EHC Plan should have been issued within four weeks so by the middle of April. And the process of amending the EHC Plan should have been completed within 12 weeks, so by around the middle of June 2024. The final amended Plan with Y’s PB was not issued until February 2025. This was a delay of eight months was fault.
5. Communication with Ms X was not in line with our expected standards and was not citizen-focused. The Council did not keep track of Ms X’s complaints, did not respond to some issues promptly or at all and this meant Ms X had to chase up responses. All of this was fault.
6. The Council has not kept to its agreement to reimburse Ms X for educational provision or to fund provision in core subjects for the Summer and Autumn Terms of 2024.

Did the fault cause injustice?

47. The Council’s fault caused Ms X:
• Avoidable time and trouble chasing the Council up for responses to her complaints and other contacts
• Avoidable frustration due to the delay in providing a timely response to the request for an urgent annual review in mid-January 2024 and the delay in considering the Section 19 duty and avoidable uncertainty also about the decision
• Avoidable frustration caused by the delay in appeal rights regarding the amending of Y’s Plan following the annual review
• Avoidable uncertainty and a loss of appeal rights regarding the failure to issue a decision on Ms X’s request for an EHC needs re-assessment
• A financial loss because Ms X has paid for provision herself when the Council should have
• Avoidable distress caused by poor communication.
• A loss of just over a term of provision for Y. Had the Council acted without delay, Y would, on balance, have had a PB in place from the middle of June 2024 to the end of January 2025 which would have included additional tuition/ educational provision as set out in paragraph 43 (and not just tuition in core subjects of Maths English and Science.)

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Agreed Action

48. The Council will within one month of this statement:
• Apologise. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Reimburse Ms X the payments she has made for tuition in English, Maths and Science: £4070.18 and £2040.40.
• Make Ms X a symbolic payment of £500 to recognise her avoidable distress, frustration and uncertainty
• Make Y a payment of £1500 to reflect the loss of just over a term of educational provision that would have been in place with a PB if the Council had completed the annual review process without delay. This payment is in the middle of our suggested bracket and reflects the Council did agree to reimburse Ms X’s funding for tuition in core subjects, although it has not yet done so
49. Ms X seeks reimbursement of the costs of private specialist advice. There are no grounds for me to recommend this, because I cannot say on a balance of probability that the Council would have agreed to an EHC needs reassessment and if so, what advice it would have commissioned. Ms X’s injustice is uncertainty about the outcome of her request. The payment of £500 I have recommended in the last paragraph reflects the uncertainty.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. 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