Summary: Ms X complains about the way the Council dealt with her child’s special educational needs causing distress and uncertainty. We found fault by the Council as it delayed issuing a final amended Education Health and Care Plan following an annual review. We have ended our investigation into the complaint as the Council has offered Ms X a suitable remedy for the injustice caused.

The complaint

1. Ms X complains about the way the Council dealt with her child Y’s special educational needs. In particular Ms X says:
• The Council delayed issuing a final amended Education Health and Care Plan (EHC Plan) for Y following an annual review in March 2024.
• Y has been on a reduced timetable since January 2024 and been unable to attend school full time. When Y does attend it is usually for three hours each morning.
• Y has received no suitable educational provision since January 2024, and the Council should have put alternative provision in place for them until it found a suitable school placement.
2. Ms X says the Council’s failings have caused them distress and uncertainty about Y’s educational provision and placement.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. While the Local Government Act 1974 sets out what we can investigate it also explains what we may not consider.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
8. 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

9. I have investigated Ms X’s concerns from the date of the annual review on 25 March 2024 to 6 February 2025. The Council then issued a final amend EHC Plan giving Ms X the right of appeal to the SEND Tribunal. Ms X has now submitted an appeal to the SEND Tribunal so we cannot investigate Ms X’s concerns after she has appealed as paragraph five explains.

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How I considered this complaint

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

Legal background and statutory guidance

EHC Plan

12. 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

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. 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

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. 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

17. 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.

Key transfers pre-16

18. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. This includes primary school to secondary school.

What happened in this case

19. What follows is a brief chronology of key events. It does not include all the information I reviewed during my investigation.
20. Y has Autistic Spectrum Disorder, attended a mainstream primary school in year 5 and had an EHC Plan for their special educational needs. In January 2024 Y was struggling to attend school due to anxiety. Y was placed on a reduced timetable doing half days to help them attend.
21. The school and Council held an emergency annual review on 25 March 2024. The meeting considered Ms X’s request to change Y’s placement to a special school although it was not thought Y needed this due to their current learning level. The meeting looked to update and amend the EHC Plan and to discuss Y’s difficulties in attending school. The meeting noted the review was in addition to the year 5 transfer review meeting due in July 2024 as Y would be moving to secondary school in September 2025.
22. In May 2024 the Council agreed to amend the EHC Plan after the annual review. It wrote to Ms X and the school on 10 June 2024 saying it would be amending the EHC Plan. The Council accepts it delayed in responding effectively to the early annual review held in March 2024 and did not meet the statutory response time after the annual review date.
23. The Council received new information in the review including Y being assessed by an educational psychologist (EP) due to concerns about wellbeing and anxiety attending school. The Council considered it useful to include the EP advice with the annual review information. The Council received the EP report in April 2025. The Council’s SEN Panel did not consider Y had Moderate Learning Difficulties (MLD) and was working at broadly age-related expectations, so special schools would not be appropriate. The SEN Panel did not agree to a change of placement but agreed to amend the EHC Plan.
24. The Council consulted with the special schools named by Ms X at the annual review for Y. The special schools did not offer Y a placement as they did not consider Y had MLD.
25. The school and Council held the year 5 transfer review meeting on 12 July 2024 to discuss Y moving on to secondary school in September 2025. The Council says the meeting helped gather information to support updating the EHC Plan for secondary school transition. It noted there was improvement to Y’s attendance, engagement and attainment progress.
26. The Council sent Ms X an updated proposed amended EHC Plan on 24 September 2024. It left the placement section blank and asked Ms X for her parental preference for a school for September 2025. The Council would then consult with her preference and other schools.
27. Ms X complained to the Council in January 2025 about the delayed EHC Plan, lack of provision for Y and uncertainty about the placement for September 2025. Ms X said mainstream provision could not meet Y’s needs and they needed a placement at a school for pupils with MLD.
28. The Council responded its SEN Panel considered Y’s placement further but did not consider they met the profile for a MLD placement. So, it had not agreed a change of placement. It accepted it did not update Ms X about this after the annual review meeting, and it delayed after the annual review in March 2024. The Council apologised.
29. The Council confirmed it was consulting schools again about Y’s secondary school placement for September 2025. This included mainstream provision and those consulted after the annual review in March 2024. But had received responses Y was too academically able for special school settings. The Council said it would “amend in time for the transition deadline on 15 Feb 2025”. And include its decision on Y’s placement in the EHC Plan for September 2025 as it had not yet been confirmed.
30. Ms X says she contacted the Council during September to December 2025 several time about progress as it did not update her on Y’s school placement. Ms X complained to us in January 2025.
31. The Council issued a final amended EHC Plan on 6 February 2025 to come into effect for September 2025. It named a mainstream secondary school as Y’s placement. Ms X appealed to the SEND Tribunal as she wanted Y to attend a special school with smaller class sizes. The Council did not consider the school suitable for Y’s age, ability, aptitude or special educational needs. The SEND Tribunal did not uphold Ms X’s appeal and considered the school named in the EHC Plan was appropriate for Y. The Council says Ms X chose not to send Y to the school in September 2025.
32. The Council says it ensured there was suitable provision for Y at school. An officer attended meetings with Ms X, her advocates and the school in February 2024. The officer also contributed to the annual review in March 2024 where alternative provision was raised.
33. The Council says Ms X agreed to the reduced timetable in January 2024 being all Y could manage. The school held regular meetings with Ms X to work on increasing the timetable. Y had an adapted and individually supported timetable at school with a broad and balanced offer from teaching and non-teaching staff. There was also signposting for online learning materials for Ms X to use if Y could do home learning i.e. not too fatigued. The Council considers Y was provided with high quality individual support at school. This was through a learning support assistant Y had a positive relationship with and the class teacher who was also the school SENco. This meant Y became able to go into school for full days more regularly.
34. The Council confirms it did not receive a request to support Y with alternative provision by the school at the March 2024 annual review. But did agree in principle to provide the school with additional funding with a view to it increasing Y’s time at school.
35. It recorded that the agreed action after the March 2024 review was for Ms X to consider what type and whether alternative provision would be useful, for Y. It noted Y enjoyed time at school and achieved well. Y found transitions difficult so the Council was concerned introducing an alternative provider could hinder any possible increase in time at school. It noted Y did attend school for full days when residential and other trips were organised where there was a reduced learning demand. The Council noted some of Y’s absences were due to fatigue and anxiety and it did not consider it supportive to introduce a different dynamic for them.
36. The Council says despite the part time timetable Y made continued learning progress and the special educational provision was in place since January 2024. The school however had not been able to put in place access to sensory ‘brain breaks’ outlined in EHC Plan in year 5 for Y as it had been able to in year 4. The Council and school felt it needed to be in place and was implemented with greater emphasis in January 2024 so Y could have extra breaks and this continued. The Council considered the high-quality teaching provided Y with positive outcomes in English and Maths at the end of KS2.
37. The Council has offered a remedy payment of £300 to Ms X for the delay in making its decision following March 20 24 annual review. And issuing a proposed amended EHC Plan following the review, although has explained its reasons for this.

My assessment

38. The Council has accepted that it delayed in issuing the amended EHC Plan following the annual review in March 2024. The statutory timescales required the Council to notify Ms X of an intention to amend the plan within four weeks of the review meeting. So, this should have been about 23 April 2024. The Council did not advise Ms X until 10 June 2024, a delay of seven weeks. The Council should then issue the amended Final EHC Plan after a further eight weeks from the date it informed the parent of the intention to change the EHC Plan. This should have been about 17 June 2024. The delays are fault by the Council.
39. The fault has caused an injustice to Ms X and Y through distress and uncertainty over Y’s placement and a delayed appeal right if Ms X disagreed with the placement named in the EHC Plan.
40. The Council has already apologised to Ms X. And it has now offered a remedy payment of £300 for the delay after the March 2024 annual review to be paid on conclusion of our investigation. I consider the offer is sufficient in this case to remedy the injustice caused. And so, I intend to discontinue my investigation into the complaint. This is because the evidence provided by the Council shows it was keeping the arrangements for Y under review and was thinking of the best interests of Y. The Council says that although it agreed to make amendments following the March annual review it coincided with the year 5 summer term transfer review. The Council used both to inform amending the EHC Plan in readiness for Y’s transition to secondary school.
41. The documents also show the Council was actively consulting with special schools which shows it was keeping an open mind about an appropriate placement for Y. While the delayed appeal right caused distress and uncertainty, I consider on the balance of probability that even if there had been no delay the Council would have named the mainstream placement in any event. And it is clear from subsequent events; Ms X would not have sent Y to the placement.
42. The evidence provided shows the Council ensured Y was receiving the educational provision specified in their EHC Plan albeit through a reduced timetable. This was in agreement with Ms X, and the school and Council maintained a dialogue with Ms X. The Council noted Ms X’s request for alternative provision. But consider the provision being made by the school was sufficient and it was concerned that introducing an alternative provider could hinder any possible increase in Y’s time at school.

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Decision

43. I have ended my investigation and uphold Ms X’s complaint. The Council has taken action which has resolved the outstanding issue and no further action by the Ombudsman is needed.

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Investigator's decision on behalf of the Ombudsman