Summary: Mrs X complained about the Council’s handling of her son, Y’s, educational placement and the specialist provision outlined in his Education Health and Care (EHC) Plan after he stopped attending school. The Council was at fault as it failed to review Y’s EHC Plan within statutory timescales. It also failed to ensure Y received the specialist provision in the Plan after deciding the school named in the Plan could not meet his needs. It also failed to provide Y with suitable alternative educational provision. The Council has agreed to apologise and make a payment to Mrs X to recognise Y’s missed education as well as the distress frustration and uncertainty caused. It has also agreed to issue Y’s final amended EHC Plan without further delay.

The complaint

1. Mrs X complained of the Council’s handling of her son, Y’s, education and the specialist provision outlined in his Education Health and Care (EHC) Plan after he stopped attending school. This included the Council’s failure to:
• hold Y’s annual review and issue his final amended EHC Plan within timescales
• provide Y with the specialist provision outlined in his EHC Plan after deciding the school named in the Plan could not meet his needs
• provide Y with suitable alternative educational after he stopped attending school
2. This caused Mrs X’s distress frustration and uncertainty as Y has missed out on educational provision. It has also delayed Mrs X’s appeal rights.

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The Ombudsman’s role and powers

3. 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).
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). Some of Mrs X’s complaint is late as she says Y has not received an education since December 2022 but Mrs X did not complain to us until January 2025, over two years later. I have exercised discretion to investigate from March 2024. This was when the annual review should have taken place invoking Mrs X’s appeal rights. It was reasonable for Mrs X to have complained to us earlier about matters before March 2024.

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council 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

Relevant law and guidance

EHC Plan

9. 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.
10. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement. 
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.

SEND tribunal

13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
14. There is a right of appeal to the SEND tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.

Annual review

15. 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) 
16. 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.
17. 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.

Alternative provision

18. 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.
19. This 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)
20. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017) Another case (R(R) v Kent County Council [2007] EWHC 2135 (Admin)) established how an education authority’s duty to offer alternative education is determined where the reason for absence is “other” rather than illness or exclusion. This stated the duty is determined by “the objective consideration of whether the education offered is reasonably possible or reasonably practical to be accessed by the child in question…”

What happened

21. Mrs X has a son (Y) of secondary school age. Y has special educational needs. In March 2023, the Council issued Y with an EHC Plan which outlined the specialist provision he is entitled to. The school named in the EHC Plan was a mainstream school (school A). The provision Y was entitled to included but was not limited to the following:
• Structured group sessions at least once a week focused on developing social skills and group working skills
• Regular check-ins throughout the school day from trusted adults
• Mentoring at least once a week for thirty minutes with a member of staff with mental health expertise
• Access to a withdrawal space
• Additional adult support in lessons
• Weekly mentoring to explore sensory-based strategies to manage his emotional regulation in school
22. Y stopped attending school and it was agreed by a panel in September 2023 that Y required a special school placement. Consultations with special school settings have been ongoing but the Council has not found a placement for Y.
23. In September 2023, the Council provided Y with 15 hours a week alternative provision for him to access education whilst he waited for a placement at a special school. The 15 hours took place over three days a week. This included Maths, English and Food Technology lessons.
24. In March 2024, the Council should have held an annual review of Y’s EHC Plan. At this point, it had not received any school placement offers so it extended the alternative provision for the summer term.
25. The Council said Y engaged well with the alternative provision until the summer term of 2024. Then his attendance dropped to 45%. The Council put in another request to extend the alternative provision.
26. In July and August 2024, the Council consulted more special schools with no success.
27. In September 2024, the school met with Mrs X and Y to discuss the drop in his attendance. Y did not provide a reason for disengaging but Mrs X felt might be linked to the lack of success with getting a special school placement. They agreed Y would return to the alternative education provider for one day a week with a view to increase this whilst also completing work at home.
28. In December 2024, the alternative education provider issued their termly report which said Y’s attendance for the autumn term was 20%. Following this Mrs X complained that Y had not been in full time education since May 2022. The Council issued a final complaint response in December apologising for frustrations caused by Y not having a school placement.
29. The Council held Y’s annual review the following month in January 2025. All attendees in the meeting agreed Y had not had the opportunity to work towards any of his targets because he was not in the correct educational setting to be able to do so. The attendees agreed the Council would continue to look for a school placement and change alternative education providers.
30. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us.
31. Since then, in March 2025 the Council issued Mrs X with a notice to amend the EHC Plan. The Council has not issued the final EHC Plan to date.
32. In April 2025, Y started attending a new provider for alternative educational provision. If Mrs X remains dissatisfied with the new provider, she will need to make a new complaint to the Council.

The Council’s response to our enquiries

33. The Council said it accepts Y has not received the full provision, as specified in his EHCP. It said the Council is working with the family to move things forward for Y.
34. In response to the delays holding the annual review, the Council said as Y was on roll with a school setting it would have expected the school to arrange this. It said it does not know why the annual review was not held until January 2025. The Council said it accepts that whilst it delegated responsibility to the school, it ultimately remains responsible for the delayed annual review.
35. The Council said it initially considered three days a week alternative education provision to be suitable to allow Y to build up his attendance and relationships. However, he continued to struggle with attending for 3 days. The Council said it reviewed this in his Annual Review meeting in January 2025, when it considered other providers and agreed a change for Easter 2025.

My findings

Annual Review

36. Y’s final EHC Plan was issued in March 2023 so the Council should have held the annual review of Y’s Plan by March 2024 at the latest. This included issuing the amendment notice and Y’s final amended EHC Plan. The Council did not hold the annual review meeting until January 2025 and has failed to issue the final amended EHC Plan to date which was fault. This caused Mrs X distress, frustration and uncertainty and significantly delayed her appeal rights.
37. We have found similar fault with the Council on a separate case. Following that case, the Council agreed to share the final decision statement with the Council’s special educational needs officers and remind them of the Council’s requirement to carry out and complete annual reviews in accordance with the Code of Practice. Therefore, it does not require a further service improvement.

Lack of educational provision

38. By March 2024, the Council had confirmed school A was unsuitable and was actively looking for a special school placement for Y. Y has an EHC Plan in place and the Council has an absolute, non-delegable duty to secure to special educational provision set out in the plan. As Y was unable to attend the school named on the EHC Plan, the Council should have considered how to make the provision specified in Section F away from the school. The Council accepted Y has not received the provision as set out in his EHC Plan between March 2024 and July 2025 which was fault. As a result, Y has missed out on over three terms of special educational provision. This has caused Mrs X distress, frustration and uncertainty.
39. Y did have access to 15 hours per week alternative educational provision between March 2024 and December 2024. However, there was no specialist educational provision in place which might have helped Y to engage.
40. At Y’s annual review meeting in January 2025, it was agreed Y had not had the opportunity to work towards any of his targets because he was not in the correct educational setting to be able to do so. It was agreed the Council would continue to look for a school placement and change alternative education providers. However, the Council did not find an alternative educational provider for Y to attend until April 2025. Whilst there is no legal deadline to arrange alternative provision, we would expect the Council to arrange this promptly after deciding the current provision was no longer suitable. The Council took too long to arrange this which was fault. As a result Y missed out on suitable alternative provision for three months and their needs went unmet for longer than necessary. This caused Mrs X distress, frustration and uncertainty.
41. We have found similar fault with the Council on a separate case. Following that case, the Council agreed to review the mechanism/record-keeping it has in place to ensure those it owes a section 19 duty to are receiving an appropriate education and those who it maintains an Education, Health and Care (EHC) Plan for are receiving the provision as outlined in their EHC Plans. The Council also agreed to identify areas of improvement and take appropriate action to improve record keeping. Therefore, it does not require a further service improvement.

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Action

42. Within one month of the final decision the Council has agreed to take the following action:
1. Apologise to Mrs X for the distress frustration and uncertainty caused by the faults identified. 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.
2. Pay Mrs X £500 to recognise the distress frustration and uncertainty caused by the 16 month delay in progressing Y’s annual review and issuing an amended final plan which has in turn significantly delayed her appeal rights.
3. Pay Mrs X £900 per term between March 2024-July 2025 to recognise Y’s missed education and SEN provision.
4. Issue Y’s final amended Education, Health and Care Plan with no further delay and consider how it can implement the special educational provision he is entitled to for September 2025.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

44. 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