Summary: Miss X complained the Council has failed to provide suitable alternative provision for her son, or the provision specified in Section F of his EHC Plan since September 2023 when his school place broke down. Miss X also complains about delays in the annual review process and in issuing a final EHC Plan. We found the delays in the annual review process were fault. As was the failure to provide appropriate alternative provision and to ensure y received the provision in his EHC Plan. This fault has led to missed education and caused Miss X distress and frustration. The Council will apologise and make payments to remedy this injustice.

The complaint

1. Miss X complained the Council has failed to provide suitable alternative provision for her son since September 2023 when his school place broke down.
2. Miss X also complained the Council failed to ensure her son received the provision specified in Section F of his EHC Plan.
3. In addition Miss X complained the annual review process in 2023 was not completed before the annual review in 2024 began and that the annual review in 2024 was not completed within the statutory timeframe. She also complains she was given inaccurate and concerning information about an EHC plan reassessment and the Council failed to respond to her request for a personal budget.

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The Ombudsman’s role and powers

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. 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)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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)
9. 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

10. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
11. Miss 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

Education, Health and Care (EHC) Plan

12. A child or young person with special educational needs may have an Education, Health and Care 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 council can do this.
13. 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)
14. 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 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)
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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Alternative provision

16. 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.
17. 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)

What happened here

18. Miss X’s son Y has had an EHC Plan for several years. In June 2022 the Council issued a final EHC Plan naming School 1, a mainstream school.
19. In September 2023 Miss X contacted the Council as she had not heard anything further following an annual review in June 2023. She said that School 1 had said it could not meet Y’s needs. Miss X also told the Council Y had attended school each day since the start of term but had only attended a handful of lessons. She wanted to discuss funding for education that Y could access at home.
20. The Council told Miss X that as Y was on roll at School 1 the school had a duty to ensure he was accessing education. It also confirmed it would chase School 1 for the annual review paperwork.
21. School 1 then sent the Council the annual review paperwork on 27 September 2023. School 1 also requested a reassessment of Y’s needs as it believed his needs and the provisions to support him had changed. The Council asked for Miss X’s view on a reassessment as it required parental consent.
22. Miss X said that Y was currently receiving alternative provision for three days and questioned whether a reassessment would affect this. The Council confirmed a reassessment would not affect Y accessing support through the Teaching and Learning provision. It provided details of the re-assessment process and told Miss X that one of the possible outcomes of a reassessment was that the Council could decide an EHC Plan was not necessary. The Council could then decide to cease the current Plan.
23. Miss X says she did not want to risk losing the EHC Plan completely so did not consent to a reassessment. Instead she asked for input from an educational psychologist (EP) in the annual review.
24. Y stopped attending School 1 in September 2023. In early October 2023 Y began an alternative placement for 3 days a week. He attended until January 2024 when the placement was no longer suitable. Miss X says Y has been without any educational provision since February 2024.
25. School 1 arranged a further annual review in February 2024. The Council then wrote to Miss X on 5 March 2024 notifying her it intended to amend Y’s EHC Plan. It issued a draft amended Plan on 28 March 2024 and asked for Miss X’s comments and her preferred school.
26. Miss X asked for amendments and input from an EP in the annual review. The Council confirmed it would make a referral to the EP but advised Miss X there was a long waiting time. The officer suggested they could make some of the amendments without an EP.
27. On 1 May 2024 the Council issued a further amended draft EHC Plan incorporating Miss X’s comments. As Miss X asked for a change of placement to a specialist school, and a personal budget, the Council’s referred the case to its Panel. The Panel considered Miss X’s request on 18 June 2024 and decide the provision in Y’s EHC Plan could be met in a mainstream school. It did not agree to a specialist placement.
28. The Council issued a final EHC Plan on 20 June 2024 naming School 1. Miss X appealed to the SEND Tribunal. In December 2024 the Tribunal approved a consent order naming a specialist school. The Council then issued a final EHC Plan naming the specialist school on 16 January 2025.

Complaint

29. In October 2024 Miss X made a formal complaint to the Council. She complained the Council had failed to provide alternative educational provision for Y since the placement at School 1 broke down in September 2023. Miss X questioned why the Council did not support a change of placement when it was evident School 1 could not fulfil the provision specified in Y’s EHC Plan.
30. Miss X also complained about delays in the 2023 annual review process and the use of scare tactics and threats to cease the Plan to coerce parents into making decisions. Miss X was also unhappy the Council had ignored her request to involve professional in updating Y’s EHC Plan and to name a specialist school. In addition, Miss X noted she had requested a personal budget and although the Council had acknowledged the request she had still not received a response.
31. A month earlier, Miss X sent the Council a pre-action protocol letter for a judicial review claim. Miss X’s primary challenge was that the Council failed to secure suitable educational provision in accordance with Y’s EHC Plan. Her second ground of challenge was that the Council had failed to secure appropriate alternative provision.
32. The Council’s response acknowledged Y had not been receiving education or the provision set out in section F of his EHC Plan. Y’s attendance for September 2023 to 2024 was 41.05% and the Council acknowledged it had not secured sufficient alternative provision. Although Y had attended sessions with an external provider, the Council acknowledged this was not equivalent to the provision specified in his EHC Plan. The Council said it would take immediate action to secure a full time education and to ensure provisions were secured in line with Y’s EHC Plan, including the therapeutic interventions in section F.
33. The Council responded to Miss X’s complaint on 18 December 2024. It noted it had already addressed Miss X’s concerns about alternative provision and securing the provision in the EHC Plan through the Pre Action Protocol process. In relation to her other concerns the Council apologised for any confusion and distress caused by being told a reassessment could result in Y’s EHC Plan being removed. It confirmed a reassessment cannot result in an EHC Plan being removed and said this was a genuine misunderstanding by the officer.
34. The Council noted the 2024 annual review documentation showed the school had requested professional guidance from the SEND Placement Support Service and the Communication, Learning and Autism Support Service. It said it was unable to find a request from Miss X in the annual review paperwork to involve professionals in updating Y’s EHC Plan. The Council did not consider it had ignored or declined a request for professional involvement in Y’s 2024 annual review.
35. In relation to the 2024 annual review the Council accepted this was not concluded within the statutory timescales and apologised for the frustration this caused. The Council also apologised for not communicating its decision on Miss X’s request for a personal budget. It confirmed it had considered Miss X’s request but had not communicated the outcome. The Council noted this could now be considered by the Tribunal.
36. As Miss X was not satisfied with the Council’s response, she has asked us to investigate her concerns. In response to my enquiries the Council says School 1 did not raise concerns about Y’s attendance directly with the Council. It says it would expect the school to raise any significant concerns with it and access support from the Education Division services.
37. The Council notes that by the annual review in February 2024 Y’s attendance was at 72% albeit this was predominantly made up of alternative provision. It says it considered Y’s initial internal truanting and then increased school absence to be dysregulation and anxiety in line with his special educational needs. The Council considers the school’s decision to engage Y in alternative provision as part of reintegrating him back to a full curriculum was appropriate.
38. It says that as School 1 had put alternative provision in place there was no requirement for the Council to make arrangements.
39. However, the Council acknowledges it had insufficient oversight of Y’s attendance and the delivery of the provision in his EHC Plan from the point of the 2024 annual review.
40. The Council says it has improved its consideration of its section 19 duties. Under the current guidance the Council would explicitly consider its s19 duty and record and share this with the school and parents. It would also schedule a three month check to ensure sufficient oversight of the school’s actions and the young person’s progress to full time attendance. This would have meant that in Y’s case the Council would have known in May 2024 whether or not Y’s attendance had improved sufficiently and have enabled it to take action at that point.
41. As these practices were not in place, the Council says it was not aware of concerns about Y’s engagement until it received the pre action protocol letter in September 2024.
42. The Council also accepts there were delays in the annual review process. It states that 2023 and early 2024 was a period of significantly reduced staffing for the Council’s Assessment and Planning team. Although it did process annual reviews, it prioritised new EHC Plans. This meant there were challenges around oversight of annual reviews which led to some drift.

The Council says the team has been fully staffed since April 2024 and that since September 2024 there has been a strong focus on meeting the annual review statutory timescales.

Analysis

43. The Council’s failure to complete the EHC Plan annual review in accordance with the statutory timeframes is fault. The whole process should be completed within 12 weeks of the review meeting. The annual review process was not completed following the meeting in June 2023. The Council then took 19 weeks to complete the process following the annual review meeting on 7 February 2024. The Council should have issued a final Plan by 2 May 2024 but did not do so until 20 June 2024.
44. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the require timeframes here is fault.
45. The delay in completing the annual review and in issuing an amended final EHC Plan caused Miss X frustration and uncertainty and put her to unnecessary time and trouble. It also delayed her right of appeal to the SEND tribunal. I consider the Council should make a symbolic payment to recognise the frustration and distress Miss X has experienced.
46. The Council’s failure to ensure Y received the provision set out in his EHC Plan was also fault. As was the failure to provide appropriate alternative provision.
47. Although Y received some alternative provision and then provision from an external provider between October 2023 and January 2024, this was not educational provision and was not equivalent to the provision specified in his EHC Plan. Then from February 2024 Y did not receive any provision at all. This caused Y a significant injustice.
48. The Council did not commission alternative provision until November 2024. However we are unable to consider this full period of missed provision.
49. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
50. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
51. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
52. The Council issued a final EHC Plan on 20 June 2024 and Miss X exercised her right of appeal to the SEND Tribunal. We are therefore unable to consider any missed provision beyond 20 June 2024.
53. Our Guidance on Remedies says that when a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment. These payments would be between £900 to £2,400 per term to acknowledge the education they have missed and help them to catch up. In determining an appropriate level we will take account of factors such as:
• The severity of the child’s SEN as set out in the EHC plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
54. Given Y’s age, the stage of his education, and the provision he received, I consider a payment of £1100 for the failure to provide a full-time education and SEN provision between September 2023 and January 2024 would be appropriate. An additional payment of £2100 would be appropriate in respect of the missed provision between February and June 2024.
55. I do not consider it necessary to make recommendations for service improvements as the Council has already taken action to improve its adherence the annual review timeframes and its oversight of alternative provision and its section 19 duties.

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Action

56. The Council has agreed to:
• apologise to Miss X and Y for not providing a suitable full time education or the provision in Y’s EHC Plan between September 2023 and June 2024, and for the delay in completing the annual process and in issuing a Final EHC 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 I have recommended in my findings.
• pay Miss X £3,200 in recognition of Y’s missed education and SEN provision between September 2023 and June 2024. Miss X should use this for Y’s educational benefit as she sees fit.
• pay Miss X £350 to recognise the frustration, distress and uncertainty the Council’s actions have caused her.
57. The Council should take this action with one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Decision

58. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman