Summary: Miss X complained the Council failed to follow statutory guidance when completing an Education, Health and Care (EHC) needs assessment and delayed issuing an amended final EHC Plan. Miss X also complained the Council failed to provide suitable alternative provision for her child and failed to secure the special educational provision in her child’s existing EHC Plan. We have found the Council acted with fault by failing to adhere to statutory timescales and failing to properly consider its relevant duties. We find these faults led to missed educational provision, frustrated appeal rights, and avoidable distress and uncertainty. The Council agreed to apologise and pay a financial remedy to recognise the injustice caused. The Council also agreed to review Z’s EHC Plan and then issue an amended final EHC Plan within statutory timescales.

The complaint

1. Miss X complains the Council:
1. Failed to follow statutory procedures and timescales when assessing her child’s needs;
2. Failed to issue final EHC Plans within statutory timeframes, including after an emergency review;
3. Failed to secure the special educational provision within her child’s EHC Plan; and
4. Failed to provide suitable alternative education provision for her child.
2. Miss X says the Council’s faults have had a significant impact on her child’s mental health, wellbeing and educational attainment. The Council’s faults have also significantly affected Miss X’s health and wellbeing, as well as having a financial impact.

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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. 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)
5. 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)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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(1), as amended)

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What I have and have not investigated

9. Part of Miss X’s complaint concerned the Council refusing to complete an EHC needs assessment for Z, as well as delays in completing the assessment and issuing Z’s first EHC Plan. These events took place in 2022 and 2023.
10. Miss X appealed against the Council’s decision not to assess Z’s needs, though I understand the Council changed its decision before the SEND Tribunal heard the appeal. The Ombudsman cannot consider a decision that comes with a right of appeal to the SEND Tribunal. The restriction set out in paragraphs 5 and 25-28 applies.
11. Other events from this time are brought late. Miss X approached the Ombudsman in January 2025 and so events leading up to the Council issuing Z’s first EHC Plan, in July 2023, occurred more than 12 months before this. I have not identified a good reason a complaint about these matters could not have been brought to the Ombudsman sooner. The restriction set out in paragraph 4 applies. I have not investigated these matters for these reasons.
12. Although the 12-month time bar begins in January 2024, I have exercised discretion to consider matters from September 2023 onwards. This is because this marks the start of Z’s first academic year with an EHC Plan in place. Events during this period are directly relevant to Miss X’s complaint to the Council. I need to consider the Council’s actions during this period to reach a view on the injustice claimed during the 2023/24 academic year.
13. I have not investigated the Council’s actions from September 2024 onwards. This is because this marks the start of a new academic year for Z, with the Council implementing a form of alternative provision. I note Miss X says the Council has continued to act with fault during this period, affecting Z’s education provision and wellbeing. However, these actions occurred after the Council issued its final complaint response and Miss X has not yet complained about these actions. As the Council has not yet responded to a complaint about this period, the restriction set out in paragraph 7 applies. It is open to Miss X to complain about the suitability of Z’s education provision during the 2024/25 academic year and to bring her complaint to the Ombudsman if she is dissatisfied with the outcome.
14. The Council’s delay issuing an amended final EHC Plan falls within the scope of this investigation. This is because this delay began during the 2023/24 academic year and the Council should have issued the plan before Miss X approached the Ombudsman. I can therefore consider this extended delay.

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How I considered this complaint

15. I considered evidence provided by Miss X and the Council, as well as relevant law, policy and guidance.
16. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
17. 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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Relevant legislation, guidance and policy

Education, Health and Care (EHC) Plan

18. 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.  
19. 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 

20. 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.
21. 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)

Reviewing EHC Plans

22. 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) 
23. 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.
24. 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.

Appeal rights and Ombudsman’s jurisdiction

25. There is a right of appeal to the Tribunal against a council’s 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 in their EHC Plan.
26. 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)
27. 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.
28. 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.
29. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

Alternative provision

30. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
31. 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)
32. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
33. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
34. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
35. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school, out of sight? published July 2022)
36. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

37. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.
38. There is no absolute legal deadline by which local authorities must start to arrange education for children with additional health needs. However, as soon as it is clear that a child will be away from school for 15 days or more because of their health needs, the local authority should arrange suitable alternative provision. The 15 days may be consecutive or over the course of a school year.

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What I found

Key events

39. Miss X’s child, whom I refer to as Z in this statement, is a child diagnosed with autistic spectrum disorder, who has special educational needs and an EHC Plan. The plan in place at the time of the matters complained of was issued by the Council in July 2023.
40. In September 2023, Z started School J. Shortly after starting, Z stopped attending, owing to the impact of his health conditions. School J told the Council it needed to have a meeting about Z’s attendance.
41. In January 2024, the Council held an emergency review of Z’s EHC Plan. The Council, School J, professionals from Child and Adolescent Mental Health Services (CAMHS), as well as Z and his parents, attended the meeting. The record of the meeting showed:
• Those present agreed the focus then needed to be on supporting Z, rather than making Z engage with subjects he was not interested in.
• Miss X advocated for stability. She said short term alternative provision intended to try and reintegrate Z to a mainstream setting would not be helpful. All parties agreed Z would not return to a mainstream education setting.
• Nobody had identified specialist settings that might be suitable for Z.
• There was discussion around Z’s mental health and support for Z, and what suitable education would look like. This included hypothetical alternative provision, specialist settings, education other than at school (EOTAS) and elective home education (EHE). Those present said it was difficult to know what steps to take.
• The meeting resulted in a decision to amend Z’s EHC Plan. The notes also said Z’s parents would consider next steps, though Z’s parents said they needed to know what options were available to decide what to do.
42. Following the review, School J circulated proposed amendments to Z’s EHC Plan. By the end of February 2024, Miss X, CAMHS and School J had returned comments and suggestions on the proposed draft amended EHC Plan.
43. In April 2024, Miss X asked the Council for an update. The Council apologised for the delay. It said the lack of availability for educational psychologists (EPs) was causing delay in assessing Z. The Council said School J would be arranging an EP appointment as soon as possible. The Council said it might be best to await the outcome of the EP’s assessment, so this could be included in any paperwork sent to its decision panel. Miss X agreed with the Council’s suggestion.
44. In May 2024, Miss X told the Council there had been no update from the EP. Miss X said Z showed increasing interest in learning. She said she was concerned they were halfway through the summer term, with no progress made towards securing suitable education for Z. The Council told Miss X an EP would visit School J and Z in June 2024.
45. On 29 May 2024, Miss X complained to the Council. She complained the Council breached statutory timeframes for updating Z’s EHC Plan following review, failed to provide Z with a suitable education, and breached legislation around reviewing Z’s EHC Plans. Miss X said she had submitted proposed amendments to Z’s plan, but was unclear what the Council accepted. She said the Council had offered no education or support in the interim, and there were no arrangements for September 2024. Miss X said Z’s mental health had been severely affected, as had her own wellbeing.
46. In early June 2024, the Council began consulting with sports-based alternative provision settings.
47. The Council responded to Miss X’s complaint:
• It accepted a delay and apologised. It highlighted the wider shortage of EPs and an increase in requests for EHC needs assessments. The Council explained the steps it was taking to improve response times, such as using locum staff and reviewing its procedures.
• It said there had been uncertainty at the review meeting about what was best for Z and the notes said Miss X needed time to decide what to do.
• The Council said given the EP delays, it had sent Z’s paperwork to the decision panel without the EP advice. It said the panel had agreed a specialist setting would be suitable for Z and, once it received the EP’s advice, the Council would consult with settings.
• The Council said if Miss X felt Z was ready for alternative provision, it would consult on this.
• The Council said it would not award compensation.
48. Miss X escalated her complaint:
• She said Z was out of education, with no plan for the future.
• Miss X said she did not know Z’s paperwork had gone to panel. She said Z’s preferred setting had said it could not meet Z’s needs and the Council had not followed this up.
• Miss X said the Council had frequently said there were no suitable alternative provision options for Z. She wanted to know what referrals the Council had made.
49. In late June, Z’s EP assessment took place. The Council told Miss X it would review alternative provision options and provide an update. The sports-based alternative provision confirmed its availability for Z.
50. In July 2024, the Council set out to secure funding for the sports-based alternative provision. It also responded to Miss X’s stage two complaint. It largely reiterated its previous response, stating delay issuing an EHC Plan after the annual review was consciously anticipated, due to awaiting the EP report. It said the delays were due to focussing on Z’s wellbeing. It did not propose a financial remedy, or set out any further proposed actions.
51. In August 2024, the Council agreed funding arrangements, allowing the alternative provision to start in September 2024. Miss X asked the Council about consultation for specialist settings.
52. In September 2024, the Council said it had received the EP’s report and would begin amending Z’s EHC Plan. It said it understood it would not seek specialist placements for Z yet, as the focus was on Z engaging with the alternative provision. It sent some proposed amendments to Miss X, who provided comments and advice she had obtained.
53. In November 2024, the Council issued a first proposed draft amended EHC Plan.
54. In January 2025, Miss X brought her complaint to the Ombudsman.
55. As of July 2025, the Council had not issued Z’s amended final EHC Plan.

Analysis

Did the Council act with fault?

Alternative provision

56. School J told the Council on 13 September 2023 it needed to have a meeting about Z, mentioning Z’s absence and CAMHS’s involvement. I consider this is the point the Council was notified of Z’s absence.
57. I consider it was clear then that Z would be absent from school for more than 15 days. The threshold for the Council to consider its section 19 duty was engaged, as per paragraph 38. I have seen no evidence the Council turned its mind to this question at the time. The Council delayed any form of consideration until the emergency review in January 2024, some four months later. I have found the Council at fault for this delay.
58. The Council’s consideration of its section 19 duty during the emergency review is unclear. The record shows the Council broadly conflated discussion about alternative provision arrangements with discussion about longer term options in specialist settings. The Ombudsman would expect clear discussion and decisions on both Z’s longer term options, such as specialist settings or education other than at school (EOTAS), and on whether the Council’s section 19 duty applied then. It is unclear whether the distinction between alternative provision and longer-term arrangements was properly understood. The Council seemed to place the onus on Miss X to decide next steps, rather than deciding whether it needed to act. I have found the Council at fault for its consideration at the review meeting.
59. Though it did not make a clear decision, the Council appears to have accepted its section 19 duty applied. However, it did not consult with providers – in this case a sports-based mentoring provision - until June 2024, around nine months after Z’s absences from School J met the threshold for the Council to consider its section 19 duty. I have found the Council at fault for this delay.
60. I have seen no evidence to show the Council made a clear, evidence-based decision about why it believed sports-based mentoring was then the equivalent of suitable education for Z, as per our guidance in paragraph 36. However, the correspondence from the time shows there was a focus on Z’s gradual re-engagement and improving his mental health, in turn increasing Z’s capacity to engage with academic study. I understand this provision focused primarily on engagement, rather than education. The correspondence shows all parties understood this. While the Council did not then demonstrably consider and record its decision-making, I think it is likely it would have found the provision suitable then, if it had.

Review of EHC Plan

61. Given that Z’s placement quickly broke down during a key academic transition year, I would expect the Council to swiftly act to convene an emergency review meeting. The Council did not hold an emergency review until around four months after School J asked for one. I have found the Council at fault for this delay.
62. The decision at review was to amend Z’s EHC Plan. This decision does not come with a right of appeal. Paragraph 24 sets out the timescale for amending an EHC Plan following review. The Council should provide written notification of the decision to amend the EHC Plan, and a copy of the proposed draft, within four weeks of the review meeting. The Council should then issue the amended final EHC Plan within a further eight weeks. There should therefore be 12 weeks from the review meeting to the amended final EHC Plan being issued. This means the Council should have issued Z’s amended final EHC Plan on or around 11 April 2024.
63. The Council had not issued a final amended EHC Plan as of July 2025, and I understand it still has not issued an amended final plan. The Council highlighted the limited availability of educational psychologists as part of the reason, which I note. However, this appears a small part of the overall picture in this case, accounting for around five months of the 15-month delay up to July 2025, with the delay ongoing. This is a significant delay and I have found the Council at fault for this.

Special educational provision

64. Paragraph 21 sets out the Council’s absolute duty to secure the special educational provision in Section F of Z’s existing EHC Plan. This duty remains engaged even while a child is out of school. The Council must consider ways to secure any provision that can be delivered in alternative settings. It must also have regard for the provision in Section F in delivering alternative provision.
65. I have considered section F of the EHC Plan issued for Z in July 2023. Section F of the plan largely comprised of strategies teachers and staff should use, rather than clearly quantifiable provision. It would therefore be difficult to separate delivery of much of Section F from Z’s attendance at School J. However, there are some examples of quantifiable provision, such as weekly interventions in language and social skills, which could potentially be delivered in other settings.
66. I asked the Council how it considered this. The Council referred to discussions at the emergency review and general delay arising from the lack of educational psychologists. The Council did not explain how it considered its duty, or what steps it took to secure Z’s special educational provision while Z was out of school. I have seen no evidence the Council turned its mind to this question at the time. I have found the Council at fault for this.

Did the Council’s faults cause an injustice?

67. The Council’s section 19 duty should have been first engaged around September 2023. At that time, the Council should have facilitated discussions around Z’s capacity to engage and considered what would constitute suitable alternative provision, with a view to implementing this as soon as possible, if reintegration was unsuccessful. In the event, alternative provision arrangements did not start until around a year later in September 2024.
68. On the balance of probabilities, I believe it is likely this provision could have been put in place sooner. Given the Council consulted with the provision in June 2024 and finalised it in August 2024, we can say it would likely have only taken around two months to arrange. I accept the Council would have required some time to potentially explore whether reintegrating Z to School J was possible, likely up to the October 2023 half term. Beyond this, the alternative provision could potentially have been proposed and agreed as early as December 2023 or January 2024. This means on the balance of probabilities, Z missed two terms of alternative provision, the spring and summer terms of the 2023/24 academic year.
69. I note concerns for Z’s wellbeing throughout the period subject to investigation. Z’s capacity to engage would likely affect the amount and type of provision in place at different times. It would therefore have been crucial to quickly consider Z’s needs, identify what provision was suitable and action it in a timely manner. It would also have been important to keep any provision under regular review, adapting the provision based on Z’s capacity. Effective planning would ensure there was no significant delay or time lost when Z was able to increase engagement. For example, in May 2024, Miss X told the Council Z was again beginning to show increasing interest and ability to engage with learning. If the Council could have met Z’s increasing capacity with correspondingly suitable alternative provision, this might have developed over time.
70. Because the Council did not properly consider its duty, we do not know whether the provision Z likely missed could have been adjusted or increased over time. This causes an element of uncertainty as to the extent of the provision Z missed during these two academic terms. This uncertainty compounds Z’s injustice.
71. I find the Council did not turn its mind to securing the special educational provision in Z’s EHC Plan throughout this period. As noted, this provision largely comprised of strategies, rather than quantifiable provision. However, some specific interventions could potentially be delivered outside of a school setting, and the Council did not consider this. I also find, on the balance of probabilities, Z missed some special educational provision interventions during this period. This loss of provision is an injustice.
72. The decision to amend Z’s EHC Plan confirms all parties agreed the currently specified provision was not suitable for Z. However, the Council’s significant delay in issuing an amended final EHC Plan has caused prolonged uncertainty, with no new provision or settings finalised. It has also meant Miss X had no way to challenge the Council’s decisions, as she has not received her right to appeal to the SEND Tribunal, which she should have received in April 2024. This significant frustration and uncertainty, and loss of appeal rights over a prolonged period, is an injustice.

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Action

73. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Miss X and Z for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our published Guidance on Remedies.
2. Pay Miss X and Z a symbolic financial remedy totaling £3500. This is broken down as follows:
1. £1000 per term for two academic terms, the spring and summer terms of the 2023/24 academic year, recognising Z’s missed education provision during this period. In proposing this figure, I have considered Z was a young person with an EHC Plan, who, on the balance of probabilities, missed suitable alternative provision and special educational provision during a key academic transition year, due to the Council’s faults. I note Z’s capacity to engage causes some uncertainty about the level of provision that would have been in place throughout. I have accounted for this in my recommendation.
2. £1500 to recognise the distress, uncertainty and loss of appeal rights caused by the 15-month delay in issuing Z’s amended final EHC Plan, between April 2024 and July 2025. This is a figure of £100 per month for each month of delay during this period.
74. The Council has also agreed to:
1. Hold an annual review meeting of Z’s EHC Plan in January 2026, in accordance with the existing annual review schedule. The Council should then ensure it complies with the timescales set out in statutory guidance for drafting and issuing an amended final EHC Plan, by issuing an amended final EHC Plan within 12 weeks of the review meeting. Depending on the date of the annual review meeting in January 2026, the latest date by which the Council should issue Z’s amended final EHC Plan is 24 April 2026. The Council should provide the Ombudsman with a copy of Z’s amended final EHC Plan and the cover letter, setting out Miss X’s relevant right of appeal.
75. The Council should provide us with evidence it has complied with the above actions.
76. Over the last year, the Ombudsman has recommended numerous service improvements to the Council around how it manages requests for alternative provision, conducts annual reviews and secures the provision set out in EHC Plans. To avoid duplication, I have not made the same recommendations here. The Council accepted these recommendations and the Ombudsman will monitor the ongoing quality of the Council’s services through our casework.

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Decision

77. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman