Summary: The Council failed to consider an interim review Miss X’s child, Y’s, Education, Health and Care (EHC) Plan when they stopped attending school in April 2024. It also delayed reviewing the Plan when Y’s alternative provision failed. This caused Miss X a period of uncertainty and Y to miss out on two terms of the provision in their Plan. The Council has agreed to apologise, make a payment to Miss X and review its approach to interim EHC Plan reviews.

The complaint

1. Miss X complained the Council failed to properly review her child, Y’s, Education Health and Care (EHC) Plan after it agreed Y should receive an education other than at school (EOTAS) in April 2024. She says she has yet to receive an amended EHC Plan and Y has missed out on the special educational provision they are entitled to. She wants the Council to apologise and compensate her for its failings.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. 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)
3. 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 provider has done. (Local Government Act 1974, sections 26B and 34D, 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. In 2024 Miss X complained to us that the Council had failed to meet Y’s educational and care needs since 2018. In August 2024 we decided not to investigate Miss X’s complaint. We decided it was late, and Miss X had a right of appeal to the SEN Tribunal about Y’s EHC Plan. I have not investigated matters linked to Miss X’s earlier complaint, as they are late and we have already decided not to investigate them.
7. I have investigated the Council’s actions after it agreed an education other than at school for Y, in April 2024. We have not previously investigated this and Miss X complained about them to us in time.

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How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. Miss X and the Council have 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 Law

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. 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. 
11. 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)  
12. 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. 

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

What happened

15. The Council issued an EHC Plan for Y in August 2023. The Plan named a special school to deliver Y’s SEN provision.
16. Miss X attended a review meeting in March 2024. The meeting noted Y was struggling to attend school. In April 2024 Miss X told the Council Y’s placement had broken down and they would not be returning to school. The Council arranged tuition for Y and agreed to develop an EOTAS package for Y once they had settled into their new provision.
17. Y started tuition with provider A and Miss X reported the first session went well. The Council said it would increase Y’s tuition over time as they settled into the placement. At the same time the Council issued a draft EHC Plan following Y’s review meeting. The draft Plan still named Y’s school as their placement. Miss X was unhappy with the draft Plan and the Council said it would make some changes.
18. In June 2024 Miss X asked the Council for an update on the new EHC Plan. The Council proposed a meeting with Miss X. It also increased Y’s tuition to two hours a day, four days a week. The records show Miss X was happy with this.
19. Miss X met the Council in July 2024. Miss X reported Y was struggling with some of their tuition. The Council made a referral to provider B, who specialised in education for children disengaged from school, with a view to increasing Y’s EOTAS package from September. The Council said it would review the situation again in September.
20. Y started with provider B in September 2024, but the provision stopped in October 2024 as Y struggled to engage. Miss X complained to the Ombudsman in November 2024. In response to our enquiries, the Council said it was discussing a new review with Miss X. The Council’s records at the time show it asked its Special Advisory Teacher (SAT) service to carry out a new review of Y’s Plan.
21. In January 2025 the Council again asked its SAT service to review Y’s Plan. It also asked Miss X to send it an annotated copy of Y’s Plan, highlighting the areas she was unhappy with.
22. In February 2025 a solicitor acting on behalf of Miss X wrote to the Council. They said Y still did not have a final EHC Plan or suitable provision in place. In March 2025 the Council said it would commission an Educational Psychology (EP) assessment. It apologised it had never finalised the 2024 draft Plan. It said it would wait for the outcome of the new assessment before finalising Y’s Plan.

My findings

23. Y’s EHC Plan was based on Y attending the school named in the Plan. When Y stopped attending school, the Council agreed to develop an EOTAS package once Y had settled into their new provision. This did not happen. The Council should have considered carrying out an interim review of Y’s Plan to formalise the EOTAS package and ensure the provision continued to meet Y’s needs. The Council failed to do this, and Y’s school-based EHC Plan remained in place. This was fault, causing Miss X uncertainty over what provision Y should be receiving.
24. When Y failed to engage with provider B the Council recognised it still needed to review Y’s Plan but did not do so until March 2025. This delay was fault. The Council failed to consider carrying out an interim review when Y left school and failed again to do so when Y’s alternative provision was unsuccessful. This left Y with an out-of-date Plan which did not meet their needs for 12 months.
25. When Y stopped attending school the Council arranged alternative provision with provider A. It increased this provision over the coming months and looked to add to it with provision from provider B. Given Y’s difficulties attending school, the Council’s decision to keep their provision under review and build it up over time was not fault.
26. However, the failure of provider B meant Y’s provision remained unchanged. There is little evidence of the Council reviewing Y’s progress or acting on Miss X’s concerns. This was fault. While Y received some education during this time, on balance, the Council failed to secure the provision in Y’s EHC Plan and provide Y with a suitable alternative education between September 2024 and April 2025. The Council has since begun the process of re-assessing Y and reviewing their Plan.

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Action

27. Within one month of the final decision, the Council has agreed to:
1. Apologise to Miss X for the delay in reviewing Y’s EHC Plan and its failure to secure the provision in Y’s Plan. 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.
2. Pay Miss X £1800 to remedy the impact of its failure to secure the provision in Y’s Plan for two terms.
3. Pay Miss X £200 to remedy the uncertainty caused by its failure to review Y’s EHC Plan.
28. Within three months of the final decision, the Council has agreed to review its approach to carrying out interim EHC Plan reviews. This is to ensure it considers whether an interim review is necessary following a change in a young person’s circumstances.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. 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