Summary: The Council has acknowledged that it took too long to complete a review of an Education Health and Care Plan for Miss X’s daughter. This caused distress and frustration and meant that the child missed education for four terms. In response to our investigation, the Council has offered Miss X a remedy, and this is appropriate to address the impact on her and her daughter.

The complaint

1. Miss X says the Council:
• failed to make the provision set out in her daughter’s Education Health and Care (EHC) Plan or make alternative educational provision for her when she could no longer attend school; and
• failed to communicate properly or stay in touch.
2. Miss X says as a result, her daughter, K, has missed education. She has not been able to attend school at all since January 2024, has had no educational provision. Miss X says K’s mental health has deteriorated significantly and she has started to harm herself. Miss X says the Council’s failings have also caused her distress.

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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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. 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

6. 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)
7. 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.
8. 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.
9. 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.
10. However, in this case, it is not clear that it was reasonable for Miss X to appeal the contents of the final plan. The Council named the school that all parties had agreed could not meet K’s needs. The Council’s plan here was to consult with other schools to find a more suitable place for K. In these circumstances, it may not be reasonable to expect Miss X to appeal the school named in the Plan because at that time the plan of action was agreed and there was not a dispute to be settled by the Tribunal.
11. For this reason, I have decided to investigate the Council’s actions even after Miss X had the final EHC Plan and her right to appeal this.
12. In addition, we can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

13. Miss X complained to the Ombudsman in February 2025 and we would normally only investigate matters up to that date. However, the impact on her daughter is ongoing. I have investigated the matters complained about and their impact from September 2023 to July 2025.
14. I have not investigated any issues with the annual review of the EHC Plan which the Council started in June 2025, as this was not part of Miss X’s complaint to the Ombudsman. However, the information I have suggests that the Council is taking too long to complete the current review. The Council should continue its work to complete this as soon as possible. Miss X can make a new complaint about this to the Council and then to the Ombudsman. If the Council issue the final EHC Plan and Miss X does not agree with the contents, including the school named, she can appeal to the Tribunal to change this, as well as complain to the Ombudsman about any lost provision and delays.

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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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What I found

The law and guidance

EHC Plan processes

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. 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. 
19. 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)  
20. 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) 
21. 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 educational provision

22. 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). I have refereed to this as alternative provision.

Child in Need

23. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
24. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

25. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.

What happened

26. Miss X’s daughter, K, has special educational needs. The Council issued an EHC Plan in August 2022 setting out her educational provision. K was also a ‘child in need’ and as such had a social worker, a care plan, and regular meetings to monitor the plan.
27. K started a new school in September 2023. By October 2023, K was having difficulty attending school. The school set up regular meetings with Miss X to discuss K’s support and attendance.
28. Notes of the meetings between October 2023 and January 2024 show that K had very low attendance. She was struggling to engage, even with support, and from October 2023 the school reduced her timetable. She continued to have the support of a dedicated member of staff, she had 1:1 support, her own area in the school, and access to sensory break rooms. By November, K would not go into the classroom and her attendance further reduced.
29. The Council, K’s social worker, and the school met to discuss the situation in November. The notes say there are concerns the school is not able to meet K’s needs, as she refuses support that will keep her safe. The Council suggested another school that might be more suitable and sought a place for K starting in September 2024. However, that school was full and did not have a place for K.
30. The Council held an emergency meeting to review her EHC Plan in February 2024. By this time, K’s attendance was down to 33% and it was agreed that the school could not meet her need. The Council had completed a risk assessment that showed K was at high risk of harming herself and absconding. The Council again asked the preferred school if there would now be room for K, however, it still had no capacity.
31. In March 2024, the Council decided to end the Child in Need plan and said that K could be supported by a team around the family. The school expressed concern at the plan ending while K was still out of school, but the Council explained that a child in need plan would not help her with this, and that the Council’s special educational needs service would be working with Miss X, K, and the school to resolve the issue.
32. By law, the Council should have issued a notice of whether it intended to maintain, cease, or amend the EHC Plan by 14 March. This deadline passed and Miss X complained to the Council.
33. The Council sent Miss X a notice that intended to amend the EHC Plan on 19 April. This was 5 weeks late.
34. The Council responded to Miss X’s complaint. It apologised that there had been different caseworkers and said it was implementing a transformation scheme to improve how it deals with EHC Plans. It acknowledged that it had taken too long to issue the notice to amend. The Council needed to find a new school for K, and it would need to take the case to a panel for a decision on how to proceed.
35. The Council should have issued the final EHC Plan by 9 May. It again missed this deadline, and sent the final EHC Plan to Miss X six weeks late, on 19 June. The Council named the same school in the EHC Plan despite it being agreed that the school could not meet K’s needs. Once the final Plan was issued, Miss X had the right to appeal the school and any parts of the Plan to the tribunal.
36. In September 2024, Miss X complained that K had now been out of school for eight months with no provision. She said there had been little contact from the school about this, and that Miss X tried to speak to someone there frequently but could not because her case worker keeps changing.
37. In November, the Council had a meeting with Miss X and the school to discuss what alternative provision might be suitable for K.
38. The Council responded to Miss X’s complaint. It said it had consulted some schools and was awaiting a response. In the meantime, K was not receiving the education set out in the EHC Plan, nor alternative educational provision. The Council told Miss X that the school remains responsible for overseeing the provision and it can commission alternatives.
39. The Council carried out a further review of the EHC Plan in April 2025. The Council proposes to amend the EHC Plan, but has not yet issued the final Plan. It is consulting with an alternative educational provider that K could attend while she waits for a place at a more suitable school.

Findings

40. In response to our investigation, the Council has acknowledged that it took too long to complete the annual review process, and K has missed out on education as a result. The delays also caused Miss X distress and frustration and delayed her right to appeal against the contents of the Plan.
41. The Council named a school in the Plan, knowing that it could not meet K’s needs. It tried to organise alternative provision but this was not successful. The Council tried to find an alternative school but when it could not this was service failure.
42. The Council has offered to make a payment Miss X as set out below. This is proportionate to the impact on Miss X and K, and is generally in accordance with our guidance on remedies. There is no basis for me to investigate further or make further recommendations.
43. The Council has explained why it ended K’s child in need plan. There is no fault in how it decided this. It had maintained the plan and made sure it understood the issues facing K and Miss X, including that she was not in school.

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Action

44. The Council has agreed that within one month of the date of this decision, it will make a symbolic payment to Miss X totalling £9,050. The Council has arrived at this total as follows:
• £600 in recognition of the frustration and distress caused to her by delay in the annual review process;
• £200 in recognition of the frustration it caused by delaying her right to appeal;
• £600 in recognition of the distress it caused when her daughter was without education; and
• £7,650 in recognition of the impact on K of missed educational provision over four terms from Easter 2024 to July 2025.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman