Summary: We found that the Council delayed updating Mr X’s son’s Education Health and Care Plan following a review and did not provide a suitable alternative education when his son could not attend school. We recommended an apology and a payment to reflect the lost education and distress caused.

The complaint

1. Mr X complains there was a significant delay in the Council sourcing a new school placement for his son, Y, after he had autistic burnout was unable continue to attend school.
2. Mr X also complains that while Y was unable to attend his school, the Council did not provide suitable specialist tuition as an alternative education for him.
3. Mr X explained that the situation caused significant mental health issues for the family as a whole and set Y’s educational attainment back.

Back to top

The Ombudsman’s role and powers

4. 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)
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).

Back to top

How I considered this complaint

7. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Special Educational Needs (SEN) Statutory Guidance

9. Statutory guidance states that councils must arrange for an Education Health and Care Plan (EHC Plan) to be reviewed at least once a year to make sure it is up to date. Councils must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The process is only complete when a council issues a decision about the review.
10. Within four weeks of a review meeting, a 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) 
11. Where a 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. Councils should then issue any final amended plan within 8 weeks of the amendment notice. Therefore, a final plan must be issued within 12 weeks of the review meeting.

Education Act 1996 & Alternative Education guidance

12. The law says that 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as Section 19 or alternative education provision. This duty applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What Happened

13. Y has had an Education Health and Care Plan (EHC Plan) since 2021. An annual review of Y’s EHC Plan took place in July 2023. At the annual review, Y’s school (School A) noted that Y’s educational progress had started to decline and his mental health was regressing.
14. On 23 September 2023 School A told the Council Y was struggling to attend school and Child and Adolescent Mental Health Services (CAMHS) stated he was having an autistic mental health breakdown. They invited the Council to an early annual review of Y’s EHC Plan.
15. Mr X also contacted the Council on 26 September to report that Y was struggling and no longer able to attend his mainstream school placement. Mr X told us Y had become largely non-verbal and unable to cope.
16. On 28 September the Council contacted School A to find out what Y’s attendance was and what work was being provided. School A set out various adjustments and approaches it had taken to try and enable Y to continue attend school. It stated CAMHS had stated not to ‘stress [Y] out with work’ at that time because of his autism regression. CAMHS had not stated Y could not attend school.
17. An early annual review of Y’s EHC Plan took place on 11 October. The annual review report stated the content of Y’s EHC Plan was no longer appropriate and it should be amended. It was noted that Y would not be eligible for a medical school placement because he had an EHC Plan. In the short term, the plan was to provide tuition for Y at home. This would initially be 5 hours per week, with the intention to build this up to 25 hours per week. This would be with specialist teachers with experience of children with communication needs, autism and sensory overload.
18. On 17 October, 5 hours per week of tuition began.
19. On 11 January 2024 the Council sent its formal response to the annual review, agreeing to amend the EHC Plan.
20. In January Mr X told the Council that Y was struggling with the tuition.
21. On 23 January the Council sought advice from CAMHS about Y’s fitness to attend any school.
22. In February the tutoring company changed Y’s tutors. School A stated they had concerns about Y’s tuition and they were considering ceasing the provision because of Y’s behaviour. As Y was not attending school, School A asked the Council to discuss Y’s placement and suitable provision with his family. School A later told Mr X it received no reply to this request.
23. At the end of February, the Council chased CAMHS for advice.
24. In May School A sent the Council feedback about Y’s presentation in tutoring sessions. The tutors explained that Y was struggling to engage and the tutors were finding it hard to deal with his behaviours. I understand the company continued to provide work for Y to do, but as of 8 May 2024 the tutoring itself had ceased as it was no longer considered appropriate.
25. In May the Council proposed alternative education provision for Y. Mr X considered the proposed location was too far away and he expressed concern that the placement may not manage Y’s communication needs.
26. It was not until June that the Council began the consultation process to find Y an alternative long-term placement. As part of the consultation exercise, School A confirmed to the Council that it could no longer meet Y’s needs.
27. Various schools were considered and discussed with Mr X in the months that followed. A further annual review of Y’s EHC Plan took place in November 2024.
28. On 3 February 2025 the Council issued a new EHC Plan naming a special school which Y began attending.

Mr X’s complaint

29. In early May 2024 Mr X complained about the Council’s failure to update Y’s EHC Plan following the October 2023 annual review and the lack of communication and progress updates. He noted Y was missing education as a result.
30. The Council acknowledged the EHC Plan review had not been completed in the statutory timescales and apologised. It stated this was due to an unprecedented increase in demand for EHC Plan assessments and linked to the national shortage of Educational Psychologists (EPs). It stated all its SEND services were affected. The Council stated a draft plan had been prepared and the matter was in hand.
31. In August, following a further complaint from Mr X in July, the Council stated the relevant team was continuing to look for a suitable school place for Y and a revised EHC Plan would be issued when one was found. The Council apologised that it had not yet found Y a new school placement but it did not uphold the complaint as Y still had a school place and education was being provided while a special school placement was being found.
32. The Council acknowledged it had not always responded to Mr X’s contacts and queries and upheld his complaint about the lack of communication. It arranged for the relevant case officer to provide Mr X with an update.

Was there fault by the Council

EHC Plan Review Timescales

33. There was considerable delay in the Council taking the required action following the annual review of Y’s EHC Plan in October 2023. Statutory guidance requires councils to confirm whether they intend to amend an EHC Plan within four weeks of the review meeting and, if so, to issue a new final EHC Plan within a further eight weeks. So, if a new EHC Plan is required, it must be issued within 12 weeks of the review meeting taking place.
34. In Y’s case the Council should have confirmed if it agreed to amend the EHC Plan by early November 2023 and it should have issued a final plan by 8 March 2024. It did not confirm agreement to amend the plan until January 2024 and it was not until June 2024 that it began consultations to find Y a new placement. It took over a year to issue a new EHC Plan, until February 2025. There was considerable delay in the council’s actions and long periods of inactivity and avoidable drift. This was fault.
35. The annual review in Y’s case was an emergency review due to a deterioration in Y’s health and ability to continue to attend his mainstream school placement. In these circumstances, the aim of an emergency review is to consider what support or placement changes may be needed to help the child continue to take advantage of their education. The considerable delay and failure to adhere to the Council’s statutory duties meant that Y remained out of school for longer than he should have. This caused distress to Y and his family.

Alternative Education

36. When a child is not attending their school placement, we would expect a council to consider the individual circumstances of each case and consult all relevant professionals involved. The Council should choose (based on all the evidence) whether it should require attendance at school or, if it accepts the child is unable to attend, it should ensure the child is receiving suitable alternative provision elsewhere.
37. When a child is on a part-time timetable or not in school we would expect a council to keep their case under review and work towards reintegrating them to full-time or mainstream education as soon as possible, also reviewing and amending EHC plans as necessary.
38. It seems evident Y could not attend School A. There is evidence the Council did seek to understand what education was being provided by School A in September when it became aware Y was absent. Some tuition was put in place with a view to increasing this. There is evidence CAMHS advice not to overload Y was taken into account. So, I found the initial approach taken was appropriate.
39. However, in January 2024 the Council was made aware that the tuition was not suitable as Y was unable to engage. In May further feedback was provided about the problems with the tuition sessions. From that time work was provided but no tuition took place. There is no evidence the Council responded to the feedback that the sessions were not effective and I found the Council did not keep Y’s alternative education provision under review to decide if the work being provided was sufficient. I found, on balance, Y did not receive a suitable alternative education from May 2024 as a result. In reaching this decision I have taken account of the alternative education (Creativity Session) suggested by the Council in May. However, based on the issues Y was presenting with, and his parent’s comments, this was not suitable. I also note work was sent home which Y largely completed with assistance from his parents. However, work set by a school to be done at home does not represent teaching and we do not consider this to represent provision of full-time education.
40. Due to the delay in finding a full-time special school placement, and the lack of alternative education, Y was not provided with a suitable education between May 2024 and his new EHC Plan naming a new placement in February 2025.
41. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as the severity of the child’s SEN, whether some provision was made available and whether the school year was a significant one for the child. I understand Y received no educational provision (other than being sent work to complete and return) from May 2024. Based on this and Y’s circumstances overall, I have recommended a remedy based on £1,800 per term, for two terms. This is a total of £3,600.
42. The delays and accepted issues with communication also caused distress to Mr X.

Back to top

Action

43. Within four weeks of my final decision:
44. The Council should apologise to Mr X and Y in writing for the fault we have found. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
45. To recognise that Y was not provided with a suitable education between May 2024 and February 2025, the Council should make a payment to Mr X, for Y, or £3,600.
46. To recognise the distress caused by the delay in reviewing and issuing a new Education Health and Care Plan for Y and for the issues in communication, I recommended the Council pays Mr X £300.
47. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

48. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman