Summary: We have found the Council at fault for failing to issue a final amended Education, Health and Care Plan within statutory timescales. This delayed Mrs X’s appeal rights. The Council also failed to secure suitable alternative provision when Mrs X’s son was unable to attend school. The Council has agreed to apologise, issue the EHC Plan urgently and pay Mrs X a financial remedy.

The complaint

1. Mrs X complained that the Council delayed issuing her son’s EHC Plan following an annual review. She said this resulted in him missing out on education, SEN provision and a placement at a specialist school.

Back to top

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. 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.
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)

Back to top

What I have and have not investigated

5. I cannot investigate matters related to the content of Y’s EHC Plan including the naming of a school in Section I. Only the Tribunal can consider this.

Back to top

How I considered this complaint

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

Law and guidance

Education, Health and Care Plan (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.

Maintaining the EHC Plan

9. 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)
10. 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.

Reviewing EHC Plans

11. 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)
12. 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.
13. 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.
14. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

What happened

15. Mrs X’s son, Y has special educational needs (SEN). The Council issued his first EHC Plan in September 2023.

Annual review

16. In October 2024, Y’s primary school completed an annual review form which it sent to the Council in November.
17. The Council considered the report at panel In November. It did not agree to a personal budget, citing the school can build an alternative provision package, funded by the Council.
18. Mrs X complained to the Council in December 2024. She said that Y had missed education for 9 weeks and the school had told the Council this in November. She said the Council said it would hold a meeting to discuss her personal budget application. She said that Y began to receive alternative provision for less than 3 hours per week after he had been out of school for 7 weeks.

Proposed amended EHC Plan

19. In January 2025, the Council wrote to the school and agreed to increase Y’s funding band. It then wrote to Mrs X with a copy of a proposed amended EHC Plan. Mrs X said the additional funding did not lead to an increase in provision hours for Y.
20. The Council met with Mrs X, and representative from the school and therapy farm in February. They discussed Y’s needs and the school provision available. It was agreed that Y needed a specialist school. The Council said it would consult with council-maintained specialist schools before the independent sector. The Council agreed to take Mrs X’s request for a personal budget, back to panel.
21. At the end of February, Mrs X submitted requested amendments to the proposed amended EHC Plan. Mrs X said this reflected the need for an Education Other Than at School (EOTAS) package. The Council panel met twice in May 2025 but did not reach a decision on a school placement or Mrs X’s personal budget request.

Update

22. At a review meeting in June 2025, the Council confirmed that it will consult potential schools for Y but that he would remain on roll at his current primary school until a specialist placement is secured. Concerns were raised that a package was not already in place for Y. Mrs X confirmed that Y was only receiving 5.5 hours of education per week when he was entitled to 15 hours.

My findings

Delayed issuing of amended Final EHC Plan

23. In response to my enquiries, the Council acknowledged the delays in issuing a final amended EHC Plan for Y. It offered a financial remedy and an apology letter in recognition of the delays.
24. I have found fault with the Council for the delay in issuing the Plan which delayed Mrs X’s appeal rights. I agree with the Council’s offer of a symbolic payment of £500 in recognition of this and have recommended the Council pay this to Mrs X within 4 weeks of my final decision.
25. I have also recommended the Council issue Y’s amended final EHC Plan as soon as possible.

Missed education and SEN provision

26. The Council acknowledged that although Y remains on roll at his primary school and the Council offered Y alternative provision, this was not fully suitable to meet his needs. The Council offered £700 in recognition of the missed provision. I disagree with this amount.
27. I have found fault with the Council for failing to secure suitable alternative provision for the 15 hours per week of education that Y is entitled to.
28. Y was out of school for 7 weeks before the Council secured 3 hours per week of alternative provision. This provision increased to 5.5 hours per week from April 2024. Y was entitled to 15 hours per week. In total (deducting the alternative provision sessions Y received), Y missed approximately 2 terms of education between October 2024 and present.
29. In line with our guidance on remedies, I have taken into account that Y missed out on education and SEN provision and the significant effect this had on his family. I have recommended the Council pay Mrs X £1500 per term (£3000 in total) in recognition of the missed provision.

Back to top

Agreed action

30. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X for the delay in issuing a final amended EHC Plan and for the missed provision Y experienced.
2. Issue a final amended EHC Plan.
3. Pay Mrs X £500 in recognition of the delayed Plan and delayed appeal rights.
4. Pay Mrs X £3000 in recognition of the missed provision.
5. Pay Mrs X £500 for the distress caused by the delayed Plan and missed provision.
31. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

32. I have found fault with the Council for failing to issue a final amended EHC Plan within the statutory timescale. I have also found fault with the Council for failing to secure suitable alternative provision when Mrs X’s son was unable to attend school.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman