Summary: Miss X complained about delays with the annual review process and finding a suitable placement for her child, and they stopped attending school. We found the Council at fault for its delays and not properly considering its alternative provision duty, causing significant frustration and uncertainty. The Council has agreed to apologise and pay a financial symbolic payment to recognise the injustice caused.

The complaint

1. Miss X complains the Council has failed to:
1. Complete an annual review of her child’s Education, Health and Care (“EHC”) Plan within statutory timeframes;
2. Find her child a suitable specialist placement; and
3. Provide alternative provision for her child while they have been out of school.

As a result, she said her child’s education and welfare had severely suffered, affecting the whole family and impacting on them financially with materials and activities she paid for.

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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. 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)
4. 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

5. I discussed the complaint with Miss X and considered her views.
6. I made enquiries of the Council and considered its written responses and information it provided (including attendance data and case notes), as well as relevant law, policy and guidance.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and administrative background

EHC 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. 

Reviewing EHC Plans

9. The annual review begins with consulting the child’s parents 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, 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.

Background

11. Miss X’s child (“Y”) has special educational needs, with an EHC Plan for several years. They attended School 1. At the time of Miss X’s complaint, Y’s EHC Plan was dated 2021. In Section F, this included Speech and Language Therapy (“SALT”) and Occupational Therapy (“OT”).

What happened – summary of key relevant events

12. At the end of April 2024, an annual review of Y’s EHC Plan took place. The report noted Y had been struggling at School 1. Miss X and Y wanted a change of placement to School 2.
13. At the start of July 2024, a Council record shows it called Miss X as she wanted an update on the outcome of the annual review. The call note included “[Y] is school refusing, seeking placement for September 2024”.
14. In mid-July 2024, the Council issued an amendment notice to Miss X. It sent out three school consultations, including to School 2 (Y’s preference). The Council chased up responses.
15. At the end of August 2024, School 1 responded to the consultation. It said it could continue to meet Y’s needs on paper, but it was becoming more difficult. It thought another setting might be more suitable to “continue the work we have done to move [Y] from being a school refuser to a regular attender that has also achieved much in the way of progress whilst with us”.
16. At the start of September 2024, the Council chased School 2 for a response and Miss X asked for updates.
17. In mid-September 2024, Miss X formally complained. Two weeks later, the Council upheld Miss X’s complaint. It acknowledged it did not meet timeframes for the annual review and a lack of communication with her. It apologised.
18. In early October 2024, School 2 responded to the Council. It did not offer Y a place. It said it could not meet Y’s needs, including SALT and OT as outlined in their EHC Plan. The Council shared School 2’s response with Miss X.
19. In mid-October 2024, Miss X emailed the Council. She pointed out old information in Y’s EHC Plan which School 2 based its refusal on. She said Y had not received SALT or OT for many years and was no longer required. School 2 later contacted the Council. It confirmed it was full and over capacity.
20. In late October 2024, the Council responded at Stage Two after Miss X escalated her complaint. It upheld it again and said it would continue to look for a suitable placement for Y.
21. At the start of December 2024, Miss X emailed the Council. There had been no progress, this severely impacted on Y, and she said, “[Y] has been out of a school placement for over five months”. Miss X’s family worker later emailed the Council for it to put something in place as School 1 had not offered alternative provision.
22. In late December 2024, the Council updated Miss X. It had sent consultations to five other schools as School 2 was full.
23. In February 2025, School 3 offered a place. In April 2025, the Council issued Y’s final EHC Plan, naming School 3. In June 2025, Y started at School 3.

Analysis

Annual review delay

24. We expect councils to follow timeframes set out in the law and statutory guidance (the “Code”). If a council intends to amend an EHC Plan, the Code says this must be done within 12 weeks of the annual review meeting. The Council should have issued the final amended EHC Plan by late July 2024. It did not do this until April 2025 – a delay of 8 and a half months. This is fault.
25. I appreciate the Council had difficulty finding a suitable placement for Y which contributed to delays. This depended on responses from the schools consulted, and I can see the Council did chase these at times. However, the Council initially let this drift as it did not send the first consultations out until 11 weeks after the annual review meeting. At this point it was the summer holidays which also likely affected the response times.
26. The Council waited until it found a placement for Y, but with the large amount of time that passed, this delayed the outcome of the annual review. In these circumstances, we would expect the Council to name a school or type of school in Section I and issue the final EHC Plan, while it continued its search. This would conclude the annual review process and if Miss X disagreed, she would have access to her appeal rights sooner. I cannot say if Miss X would have appealed but ultimately the Council did not meet statutory timeframes. This fault with significant delays caused ongoing frustration and distress to Miss X. The Council has also accepted and apologised for its inconsistent communication with Miss X throughout this period.

Alternative provision

27. Miss X said Y stopped attending School 1 from July 2024. I have not seen clear evidence Miss X made the Council directly aware of this in writing until December 2024. We cannot criticise the Council for inaction if it is not aware. I do note two indirect records before this: 1) a Council note of a phone call in early July 2024 to Miss X said “[Y] is school refusing”; and 2) School 1’s consultation response at Paragraph 15.
28. While they reference Y being a ‘school refuser’, in my view these are not clear enough statements saying Y was not attending completely or for how long. These may have been enough for the Council to explore further, but I consider this does not warrant a finding of fault on this part.
29. However, in December 2024, Miss X told the Council Y had been out of school for over five months. At this point, the Council should have made enquiries with Miss X and School 1 about Y’s attendance to decide if it owed a duty to provide alternative provision. It failed to do this. It should have considered the reasons why Y was not attending, their individual circumstances, and whether it thought School 1 remained available and accessible to them. This is fault.
30. I cannot say, on balance, whether the Council would have or should have put alternative provision in place for Y after December 2024. This is because that is a decision the Council would have had to make at the time after considering all the available information. This causes significant uncertainty, as well as distress and frustration for Miss X as to whether had the Council properly considered it, if it would have made a difference to Y’s situation sooner. This is their injustice.

SALT and OT

31. Y’s active EHC Plan at the time outlined SALT and OT input. However, in October 2024, Miss X told the Council they had not received it for years and Y did not require it. Given Miss X’s comments here, even though it was in the Section F, if this was not delivered, I do not consider this part caused Y significant injustice.

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Action

32. To remedy the injustice set out above, the Council has agreed to carry out the following actions within one month of the final decision:
• Apologise to Miss X in writing (in line with our guidance on making an effective apology) for the injustice caused by the faults identified; and
• Pay Miss X a symbolic payment of £400 to recognise her frustration, distress and uncertainty.
33. The Council should provide us with evidence it has complied with the above actions.
34. Somerset Council is currently undergoing a significant transformation programme for its SEND services following development of a SEND action plan. The Ombudsman is overseeing this which includes the issues identified in this complaint. For this reason, I am not making any service improvements.

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Decision

35. I find fault causing injustice. The Council has agreed to my recommendations to remedy the injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman