Summary: The Council was at fault for delays issuing a child’s Education, Health and Care Plan following a reassessment and for not considering whether it should provide alternative education. This meant the child did not have an up to date Education, Health and Care Plan for a significant period. To remedy the injustice caused the Council agreed to apologise to Ms X and make a payment to her for the uncertainty and frustration she experienced.

The complaint

1. Ms X complains the Council did not provide her child with education when they were out of school and delayed finalising their Education, Health and Care Plan following an annual review.
2. Ms X said her child missed out on education they were entitled to and did not have an up to date Education, Health and Care Plan which reflected their needs.

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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 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)
5. 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)
6. 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

7. I have not investigated any concerns Ms X has about alternative provision dating back to 2021 as too much time has passed. Ms X could have complained to us sooner about these issues.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
10. 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

Law and guidance

11. 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. 
12. 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) 
13. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.
14. For young people moving between post-16 institutions, the council should normally complete the review process by 31 March where a young person is expected to transfer to a new institution in the new academic year.
15. 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))
16. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
17. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
18. 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))
19. 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)
20. 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’)

What happened

21. Ms X’s child, Y. has special educational needs and has an EHC Plan. In June 2023, an annual review meeting was held for Y’s EHC Plan.
22. In August 2023, the Council received the annual review paperwork from Y’s school and decided to reassess Y’s needs.
23. In June 2024, the Council became aware Y was not attending school and held an emergency review of Y’s EHC Plan.
24. The Council issued a draft amended EHC Plan for Y in early July 2024.
25. In late July 2024 Ms X provided her comments on the draft EHC Plan. The Council agreed to meet with Ms X in early August 2024 to go through the draft EHC Plan and discuss amendments.
26. On 5 August 2024, the Council met with Ms X and Y’s school. The school said it did not have an up to date EHC Plan for Y. The school also said it had put in place educational options for Y but Y had not engaged with these.
27. During August 2024, the Council and Y’s school were in communication about how to help Y as they were not engaging with provision or school. In late August 2024, the Council and school put together a package of education and support for Y to try to re-integrate them back into school in the Autumn term of 2024.
28. In September 2024, Y’s school told the Council Y was not engaging with the package of education and not attending any provision.
29. In September 2024, the Council was trying to arrange input from an Educational Psychologist as it needed this to update Y’s EHC Plan.
30. In November 2024, Y’s school contacted the Council as it had not received an updated version of Y’s EHC Plan. The school also said Y was struggling to attend English and Maths tuition and the other provision in place.
31. In February 2025, Ms X asked the Council for an emergency annual review as she did not have an updated EHC Plan for Y’s college applications.
32. The Council held an annual review meeting in May 2025 and issued a draft EHC Plan in early June 2025. Following this the Council received input from the educational psychologist on 5 June 2025. The Council told Ms X it could issue a final EHC Plan, however Ms X asked the Council to wait until Y’s diagnosis of autism was confirmed before issuing the final EHC Plan.
33. The Council issued a final EHC Plan on 30 July 2025. Y was accepted at a mainstream college on 28 July 2025 and started their placement in September 2025.

Ms X’s complaint

34. Ms X complained to the Council in early July 2024. Ms X complained she had received no decision from the June 2023 annual review and Y’s EHC Plan was very out of date. Ms X also complained Y had been out of school and she had told the Council about this but it took no action.

The Council responded to Ms X’s complaint in late July 2024. The Council said once it received the paperwork for the June 2023 annual review, it decided to re-assess Y’s needs but it took some time to begin this work due to issues arranging input from an Educational Psychologist.

Findings

Delays issuing Y’s EHC Plan

35. In August 2023, the Council received the annual review paperwork from Y’s school and decided to carry out a re-assessment of Y’s needs. The Council should have issued a final EHC Plan for Y within 14 weeks, so by sometime in November 2023. Failure to do so was fault.
36. The Council did issue a draft EHC Plan in July 2024 but it was not clear why it took nearly a year to do this. The Council did mention there were challenges arranging input from an Educational Psychologist. After it issued the draft EHC Plan in July 2024, the Council decided to get updated advice from professionals dealing with Y given the time which had passed. This included input from an Educational Psychologist. It took the Council until June 2025 to receive input from an Educational Psychologist and issue a further draft EHC Plan. After this it was ready to issue a final EHC Plan. The further delay in issuing the final Plan from June to late July was down to Ms X wanting to wait for Y’s autism diagnosis.
37. Overall there has been a 20 month delay issuing Y’s final EHC Plan since the Council agreed to reassess Y’s needs. Although the final month of delay was as a result of Ms X wanting to wait for an autism diagnosis for Y. This has meant Y did not have an up to date EHC Plan for a significant amount of time. It also meant Ms X could not challenge the content of Y’s EHC Plan as she had no final EHC Plan to appeal.
38. As Y was starting post-16 education in September 2025, they should have had a final EHC Plan in place by the end of March 2025. As Y did not have this Ms X and Y were unable to share an updated EHC Plan with prospective colleges Y wanted to attend.

Alternative provision

39. The Council said it became aware Y was not attending school in July 2024. I do not have any other information to suggest this was not the case. After becoming aware Y was out of school the Council met with Ms X and Y’s school in early August 2024. The Council worked with Y’s school to put together a package of education for Y and this was finalised in late August 2024. I am satisfied the Council considered whether it owed Y a section 19 duty to provide alternative provision but decided an appropriate package of education was in place.
40. In September 2024 and November 2024, email correspondence from Y’s school to the Council showed it told the Council Y was not engaging with the package of education and struggling to attend school. It is not clear what action the Council took here. As the Council had agreed a package of education with the school following reports of Y’s non-attendance, it should have kept this under review or considered whether it owed Y a duty to provide alternative education at that stage.
41. I cannot say on balance whether the Council would have decided it owed Y a section 19 duty to provide alternative education. This will have caused Ms X uncertainty about what may have happened had the Council considered its section 19 duty at this time.

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Agreed Action

42. Within one month of my final decision, the Council agreed to carry out the following:
• Apologise to Ms X for the injustice caused by the above faults.
• Pay Ms X £1,900 to recognise the frustration and uncertainty caused to the family by the delay issuing a final EHC Plan. This is calculated at £100 per month for each month outside the of statutory timescale. 
• Pay Ms X £300 to recognise the uncertainty caused as a result of the Council, not taking any action following Y’s school reports that they were not engaging.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice. The Council agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman