Summary: There was fault by the Council, because it delayed completing an annual review of an education, health and care plan, did not consider whether its duty to arrange alternative educational provision applied while a child was not attending school, and did not ensure she received specialist provision she required during this time. The Council has agreed to apologise and offer a financial remedy to address the injustice these faults caused. It has also agreed to consider how best to ensure its staff understand the Council’s responsibilities to provide education for a child not attending the school.

The complaint

1. I will refer to the complainant as Mrs M.
2. Mrs M complains the Council:

• delayed completing the annual review of her daughter, W’s, education, health and care (EHC) plan;
• did not make arrangements for alternative educational provision for W while she was not attending school; and
• did not secure the provision set out in section F of W’s EHC plan during the same period.

Back to top

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)

Back to top

What I have investigated and what I have not investigated

4. I have investigated Mrs M’s complaint as set out at paragraph 2.
5. In her complaint to us, Mrs M has requested the Council reimburse her for therapy she has funded for W herself. She says the Council has refused this because W’s EHC plan does not include this type of therapy. In other correspondence with the Council, Mrs M has also sought backdated funding for a different type of therapy W has been receiving.
6. However, I have not investigated these points because they did not form a substantive part of Mrs M’s complaint to the Council. This is a legal requirement before we are able to accept a complaint for investigation.

Back to top

How I considered this complaint

7. I considered evidence provided by Mrs M and the Council as well as relevant law, policy and guidance.
8. I also shared a draft copy of this decision with each party for their comments.

Back to top

What I found

Legal background

EHC plans

9. A child or young person with special educational needs may have an 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.
10. 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)  
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. 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

13. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. We refer to this as councils’ ‘section 19 duty’.
14. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))

Mrs M’s complaint

15. W has been diagnosed with learning and developmental disorders. She has an EHC plan, and until December 2024 was on roll at a specialist school, which I will refer to as School 1.
16. After a period of declining attendance at school by W, on 14 May 2024 it held an annual review of her EHC plan. Mrs M says around the same time W stopped attending school entirely.
17. On 9 July Mrs M emailed the Council. She said it had not yet completed the annual review or issued an amended EHC plan for W. She also highlighted that W was no longer attending School 1, and asked the Council to consult with another specialist school (School 2) with a view to W transferring there.
18. The Council replied to confirm it would investigate the situation. On 7 August, it wrote to Mrs M again to say it had not yet received the annual review paperwork from School 1, which it needed to complete the review. The Council said it was chasing the school for the paperwork, and would consult with alternative placements once it had issued a draft amended EHC plan.
19. It is unclear what date the Council received the annual review paperwork from School 1, but on 30 September it issued a draft amended EHC plan for W. On the same date, Mrs M submitted a stage 1 complaint. She reiterated that W had not attended school since May, and complained the Council had done nothing to address this situation. She also complained about the ongoing delay in issuing an EHC plan following the annual review.
20. On 15 October the Council sent consultations to School 2 and several other possible placements. On 28 October, it replied to Mrs M’s complaint. The Council said it had received the annual review paperwork from School 1 in June, but acknowledged it had not completed the review on time. The Council said it had recruited new staff to its SEND team and taken other steps to improve the timeliness of its processes.
21. On 29 October the Council issued a final EHC plan for W, naming School 1 as her placement on an interim basis while it awaited the outcome of its consultations. Then, on 8 November, School 2 replied to the Council’s consultation to confirm it could offer W a place.
22. On 16 November Mrs M escalated her complaint to stage 2. She said the Council had still not addressed the fact W was receiving no education or any of the support set out in her EHC plan. Mrs M also complained there had been a series of changes in W’s case officer and that she was finding it very difficult to get a response when she contacted the Council.
23. On 20 November the Council contacted Mrs M to confirm School 2 had offered a place, and that it would now seek approval from its panel to agree this placement. The panel agreed to the proposal on 27 November, and the Council then contacted Mrs M to confirm this, explaining W’s placement would begin on 8 January 2025. The Council then issued an updated final EHC plan on 2 December, naming School 2 as W’s placement.
24. The Council responded to Mrs M’s stage 2 complaint on 19 December. It acknowledged and apologised for the delay in completing W’s annual review, but explained the difficulty it faced when specialist placements, such as that at School 1, were unsuccessful. The Council also apologised for the difficulty Mrs M had experienced in contacting case officers, and said it was working to improve its handling of the large volume of correspondence its SEND team received.
25. In January, Mrs M referred her complaint to the Ombudsman.

Back to top

Analysis

26. I will address each point of Mrs M’s complaint in turn.

Delay in completing the annual review of W’s EHC plan

27. From the date of an annual review, and assuming they decide to do so, the law gives councils 12 weeks to issue an amended final EHC plan. W’s plan was reviewed on 14 May, meaning the Council should have issued her final plan by 6 August. But the Council did not issue W’s initial final plan until 29 October, meaning it missed this deadline by a substantial margin; and the Council then went on to withdraw this and issue an updated final plan on 2 December.
28. On 7 August – the day after the statutory deadline – the Council informed Mrs M it had not received the review paperwork from School 1, and explained it could not complete the review without this. The Council’s notes say it had requested the paperwork three times from the school at this point.
29. The Council’s notes also contain a copy of an email Mrs M sent at the end of September, which says she is aware the school had originally submitted the paperwork on the wrong form, contributing to the delay. Mrs M’s email does not indicate how she was aware of this, nor when this is supposed to have happened, but I infer this is something the Council informed her.
30. However, both the Council’s stage 1 and stage 2 responses say it received the paperwork from School 1 in June. Neither response refers to the Council having to repeatedly chase the school, and nor is there any mention of the school submitting an incorrect form.
31. The Council’s records also do not record what date the school actually provided the paperwork. The Council has provided a chronology which implies this was at the end of September, but given it then issued W’s draft EHC plan only a few days later on 30 September, this seems unlikely.
32. It is difficult, therefore, for me to piece together exactly what happened here, as the evidence is contradictory. But, taking everything together, I consider it most likely the Council did receive some paperwork from the school in June, but in the wrong format. The Council then went back to the school to ask for the proper paperwork, but did not receive this until sometime between mid-August and mid-September.
33. Even assuming this is correct though, I am not satisfied this means the Council was not at fault. First, there is no indication what the Council actually meant by the ‘wrong form’, but it is difficult to perceive why this meant it could not at least begin working on the review in the meantime. Second, it is implied by the timeline that, despite receiving the initial paperwork in June, the Council did not go back to the school to request the proper form for at least several weeks.
34. On the balance of probabilities, therefore, and although I cannot quantify what how much delay the Council was actually responsible for, I consider it was at fault for the delay in completing the annual review.
35. To consider the injustice caused by the delay in issuing the plan, Mrs M told the Council in her email of 9 July that School 2 was her preferred placement, and so it appears reasonable to assume the Council would have consulted with it sooner had there been no delay. However, I am conscious the review deadline was during the summer holidays, which often introduces its own delay when schools are asked to consult on placements around this time.
36. The Council has informed me that W’s placement at School 2 now also appears to be failing, and that, following another annual review, Mrs M has requested the Council provide her with education other than at school (EOTAS).
37. These more recent events fall outside the time period I am investigating. However, I cannot overlook that, even if W’s placement at School 2 had started sooner, it appears likely she would still not have consistently attended there.
38. Therefore, I do not consider I can reasonably say the injustice here is that there was a delay in providing a placement which suited W’s needs. Instead, I consider the injustice caused to Mrs M, and W, of the Council’s fault was more generally that of distress and frustration. I will consider what the Council should do to remedy this injustice towards the end of my decision statement.
39. I find fault causing injustice in this element of Mrs M’s complaint.

Failure to arrange alternative provision

40. Under its section 19 duty, a council must make arrangements to secure suitable alternative provision for any child who, for one of several reasons, including illness, cannot attend school. Once it has accepted a section 19 duty, there is no statutory deadline for a council to implement alternative provision, but it should do as soon as possible.
41. It is unclear what, if anything, the Council knew of W’s deteriorating attendance at school before May 2024, but when she stopped attending entirely in May, Mrs M says the school informed the Council of this. Unfortunately I have no way to objectively confirm this. I have also noted it is unclear when the Council received the May 2024 annual review paperwork from the school; although, in any case, this simply describes W’s attendance as “low”, not that she was entirely absent.
42. Therefore, the earliest I can say for certain the Council should have been aware W was no longer attending school – at all – is 9 July 2024, the date of Mrs M’s email.
43. Whatever the facts about this though, I am concerned there is no contemporaneous evidence the Council gave any thought to its section 19 duty. There is nothing in the chronology the Council has provided which shows it considering, or trying to implement, alternative provision for W. And, despite it being a key point of Mrs M’s complaint, the Council did not address it at all in either its stage 1 or stage 2 responses.
44. I asked the Council to explain what consideration it had given to its section 19 duty for W. It replied (emphasis my own):

“The [Council] did consider its responsibilities under S19, as [W] was in a Non-Maintained Specialist Provision it was understood that key parts of the plan should remain to be provided by the setting. This was the [Council’s] view of how S19 should be discharged and was to my understanding discussed with the setting.”

45. This misses the point. The Council’s section 19 duty is not about ensuring the continued implementation of an EHC plan (although this is also important, and a matter I will consider in the next section). Rather, it is about ensuring the continuation of core education – in particular English, Maths and Science – while a child is unable to attend school.
46. Therefore, whatever discussion the Council may have had with School 1 about implementing W’s EHC plan, this does not show the Council gave any consideration to its section 19 duty. This is fault.
47. I will note at this point a council can legitimately decide its section 19 duty does not apply, if it is satisfied there is no valid reason for the child in question not to be in school. Under such circumstances, it may decide to treat the matter as an attendance issue instead. It is not for me to make my own decision which was appropriate in W’s case.
48. But equally, I am conscious the Council did not suggest W should return to School 1, and that it accepted, without argument, Mrs M’s request it consult with other providers. On balance, therefore, I consider it most likely the Council would have accepted the section 19 duty for W, had it considered it.
49. While there is clear fault here, it is difficult to say how effective any arrangements the Council made would have been. Again, I note W’s placement at School 2 has also been unsuccessful, and for this reason Mrs M has now asked the Council to arrange an EOTAS package instead. And, elsewhere, Mrs M also mentions W will not engage with any visitors to their home, which would presumably include tutors.
50. For this reason, I will not conclude that the Council could easily have arranged effective and suitable alternative provision, had it given proper consideration to its section 19 duty. I accept there may have been significant obstacles to doing so, even if the Council had not been at fault. But the fact it did not give proper consideration creates an uncertainty about what might have happened, which is an injustice in its own right. Again, I will consider what the Council should do to remedy this injustice towards the end of my decision statement.
51. I find fault causing injustice in this element of Mrs M’s complaint.

Failure to secure section F provision

52. Under section 42 of the Children and Families Act 2014, the Council has a duty to secure any specialist provision and support set out in section F of a child’s EHC plan. This duty continues to apply when a child has stopped attending school.
53. Section F of W’s EHC plan is extensive and complex. However, I do note the vast majority of the support it sets out is not ‘standalone’ specialist provision, but rather steps the school should take to ensure a suitable and amenable learning environment for her. Therefore, while the Council’s duty to secure section F continued during her absence from school, it is difficult to see how this could be practically implemented if she was not attending.
54. But there is one clear exception to this, which is a requirement for W to have fortnightly one-to-one therapy sessions. There is no obvious reason why this could not be implemented outside the school environment.
55. Again, I asked the Council to explain how it had considered its section 42 duty. It replied:

“[The] only part of the plan that was identified other than the S19 requirements was access to some therapeutic support on a fortnightly basis. We would have hoped that this was still on offer to [W], even in a remote fashion by the commissioned school who we continued to fund highly for this work.”

56. Under normal circumstances, it would be for the school to make the day-to-day arrangements to implement section F provision, and as an organisation we accept it is not practical for councils to maintain constant supervision over schools to ensure they do so. However, these were not normal circumstances: W was entirely absent from school, and the Council should not simply have assumed it had arranged to continue the section F provision in her absence. The fact the Council was giving School 1 significant funding does not alter this.
57. This is also fault, therefore, and I am satisfied it caused further injustice because W did not receive this element of her provision. I will consider how the Council should address this in the next section.
58. I find fault causing injustice in this element of Mrs M’s complaint.

Conclusions and remedy

59. The Council was at fault because it:

• delayed completing W’s annual review and issuing her amended EHC plan;
• failed to consider whether its section 19 duty was applicable; and
• failed to ensure W continued to receive the provision set out in section F of her EHC plan.

60. These faults caused an injustice to Mrs M and W. They experienced distress and frustration because of the delay in completing the annual review and issuing the EHC plan; an uncertainty because of the Council’s failure to consider its section 19 duty; and W missed out on her therapy because the Council did not secure this provision while she was not attending school.
61. Our published guidance on remedies says:

“Our recommendation for a remedy [for distress, frustration and uncertainty] needs to reflect all the circumstances including:

• the severity of the distress;
• the length of time involved;
• the number of people affected (for example, members of the complainant’s family as well as the complainant);
• whether the complainant or other persons affected are vulnerable and affected by distress more severely than most people; and
• any relevant professional opinion about the effects on any individual.

“Where we decide it is appropriate, we will normally recommend a remedy payment for distress of up to £500.”

62. Taking account of all the factors here, I consider a remedy of £500 to be appropriate for the distress, frustration and uncertainty caused by the delay in the annual review and the failure to consider section 19.
63. I also consider the Council should provide an additional remedy of £250 to reflect the therapy set out in W’s EHC plan, which she did not receive.
64. The Council should also send a formal letter of apology to Mrs M to acknowledge its faults and the impact on her and W.
65. I am also concerned of the implications of the Council’s failure to properly understand its section 19 duty. In November 2024 we investigated another complaint against the Council, in which we raised similar concerns. At our recommendation, the Council agreed to remind its staff of its responsibilities under section 19, and to circulate a copy of our focus report (‘Out of school, out of sight?’) of 2022 about the same matter. It then provided evidence it had done so.
66. However, the Council’s response to my enquiries in this case implies an ongoing failure by staff to grasp the basics of section 19.
67. Instead of recommending a further reminder, therefore, I consider the Council should now consider and decide itself what will be the most effective way to ensure its staff understand section 19, and have confidence in applying it.

Back to top

Action

68. Within one month of the date of my final decision, the Council has agreed to:

• write a formal letter of apology to Mrs M, acknowledging its fault in this case and the impact this had on her and W. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings;
• offer to pay Mrs M a total of £750 for the same reason;
• consider and decide a plan to ensure relevant staff properly understand its responsibilities under section 19, and are confident in applying it. The Council should provide the Ombudsman with a copy of the plan once it has done so.

69. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

70. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman