Summary: Miss X complained about the Council’s failure to provide her child (Y) with the provisions in his Education, Health and Care Plan and its failure to provide him with suitable alternative provision when he stopped attending school. Miss X also complained about the Council’s delays with completing the annual review of Y’s Plan. There were some faults by the Council which caused injustice to Y and Miss X. The Council will take action to remedy the injustice caused.

The complaint

1. Miss X complained about the Council’s:
1. failure to provide her child, Y, with all the provisions set out in Section F of his Education, Health and Care (EHC) Plan
2. delays with issuing Y’s final EHC Plan after an early annual review of his Plan was held in November 2024
3. delays and failure to provide Y with suitable alternative provision when he stopped attending school.
2. Miss X said as a result Y lost out on education and the specialist support set out in his EHC Plan, the matter caused him trauma and affected his mental and physical health. Miss X also said the matter caused her distress, worry, affected her health, and that she had to change her job to be at home to support Y.

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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 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. 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.
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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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)
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share a copy of the final report with Ofsted.

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What I have and have not investigated

10. I have investigated matters from October 2024 to May 2025. This covers the period from when Miss X requested an early annual review of Y’s EHC Plan to when the Council issued the final Plan.

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How I considered this complaint

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

Education, Health and Care Plans

13. 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.
14. The council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person. The Courts have said this duty to arrange provision is owed personally to the child and is non delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
15. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The review process includes a review meeting, and the subsequent decision, which have appeal rights.
16. Councils can delegate the holding of the review meeting to a school, but councils remain responsible for the overall review process.
17. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan. Where the decision is to amend the EHC Plan, the council must then issue any final amended Plan within eight weeks of the ‘amendment notice’. Therefore, a final EHC Plan must be issued within 12 weeks of the review meeting.
18. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final plan is issued.

Alternative Provision

19. Section 19 of the Education Act 1996 (the Act) says each local authority will 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. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
20. Councils must provide suitable full-time education/alternative provision under section 19 of the Act when a child of compulsory school age cannot attend school for 15 days or more days due to illness or other reasons.
21. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
22. Local authorities are expected to obtain data from all schools, regardless of governance, up-to-date and accurate data on all children not accessing full-time education.

The Council’s complaint procedure

23. The Council has a two-stage complaint procedure, and its responses are issued within 15 working days and within 20 working days at stage 1 and stage 2 respectively.

Background

24. Y has some health conditions and special educational needs (SEN).
25. Y has an Education, Health and Care (EHC) Plan and he attended School 1.
26. Some of the provisions in Y’s final EHC Plan which was issued before his November 2024 early annual review included:
1. designated key workers to work closely with Y on a 1:1 basis throughout the school day (to help Y settle at the beginning of each school day, at transition times and other times he finds it difficult to manage) and to provide a 10 minute debrief at the end of the day to resolve any issues.
2. direct teaching, 1:1, twice a week for 30 minutes, designed to improve Y’s emotional regulation skills in individual sessions, covering topics including recognising his emotions.
3. a minimum of three activity and sensory breaks to be scheduled per day, as well as introduced flexibly to support Y’s calm and productive engagement across the school day.
4. 30-minute literacy intervention sessions on a 1:1 basis, designed to improve his reading, spelling and writing skills, delivered by a suitably qualified member of staff at least 3 times a week.
5. an adult led programme with direct teaching focused on social skills delivered for 30 minutes once per week. To be initially delivered individually on a 1:1 basis, and over time as part of a group of up to 3 students.
6. a scheduled session to socialise with, and use/learn social skills alongside 5 peers of a similar age. This is to be delivered at least twice weekly for 30-45 minutes with a teaching assistant or member of pastoral staff.

Key events

27. In October 2024, Miss X informed the Council that School 1 was not meeting Y’s SEN and that it was not providing Y with all the provisions in his EHC Plan. This was mainly the 1:1 provision in his Plan. Miss X requested an early annual review of Y’s EHC Plan and a new school.
28. On 6 November, an early review of Y’s Plan was completed. Miss X said she had to gather relevant reports from Y’s professionals before the review meeting because School 1 failed to do so.
29. On 21 January 2025, the Council issued its decision letter, and it agreed to amend Y’s EHC Plan.
30. On 12 March, Y stopped attending School 1 due to a mental breakdown after an incident that happened at School 1. Few days later, Miss X informed the Council that Y had stopped attending school.
31. The Council contacted School 1 to discuss Y’s case. School 1 confirmed that sometimes Y did not require 1:1 provision/support because he was developing his independence and that it had noticed improvement in this area. School 1 also confirmed that Y did not receive some of the provision in his EHC Plan on 12 March (the day he stopped attending school).
32. On 19 March, the Council spoke with Miss X, and it was established that Y would not be returning to School 1. Miss X made a parental preference of a specialist school (School 2) for Y. The Council agreed to refer and provide Y with alternative provision (AP) pending when it consulted with School 2. Miss X and the Council discussed and agreed on what alternative provision would be suitable for Y. The Council consulted with some AP providers and School 2.
33. In early April, the Council received positive consultation responses from the AP providers and School 2.
34. On 9 April, Y started receiving 23 hours of AP per week. This included home tuition, therapeutic support, mentoring and outdoor education.
35. On 22 May, the Council issued Y’s final amended EHC Plan with School 2 named in the Plan.
36. Y started School 2 the following month. Y continued to receive AP until he started School 2.

Miss X’s Complaint

37. In mid-December 2024, Miss X made a complaint to the Council about its failure to provide Y with all the provisions including the 1:1 provision in his EHC Plan. Miss X also complained that School 1 and the Council failed to properly conduct the November 2024 early review. She complained about the Council’s delays with issuing Y’s final EHC Plan and its poor communication with her.
38. In early February 2025 and in mid-April 2025, the Council issued its stage 1 and stage 2 responses to Miss X’s complaint. The Council:

• said School 1 should have gathered information from Y’s professionals before the review meeting.
• accepted it failed to challenge School 1 during the review meeting about Miss X’s concerns that Y was not receiving the 1:1 provision in his EHC Plan.
• accepted it poorly communicated with Miss X
• upheld Miss X’s complaint.

39. The Council’s stage 2 complaint response was issued after Miss X complained to the Ombudsman.
40. In its response to our enquiries, the Council said:
1. between October 2024 and March 2025, it had discharged its duty under Section 42 of the Children and Families Act 2014. The Council said it provided Y with a placement at School 1 and with funding for the provision in Y’s EHC Plan to be provided to him.
2. from April 2025 to when Y started School 2, he was provided with AP.
3. the contents of the AP were mutually agreed by the Council and Miss X on 19 March 2025 to be suitable to meet Y’s needs and that the AP provided was also linked with the provisions set out in Section F of his EHC Plan.
4. it issued three drafts of Y’s EHC Plan before it could consult with other placements and before the final Plan was issued.

Analysis

Annual Review process

41. School 1 arranged and completed the early review meeting on behalf of the Council. However, the Council remained responsible and should have kept an oversight of the review process. For instance, the Council should have ensured relevant information/reports had been obtained before 6 November 2024. This was fault and it caused Miss X uncertainty, distress and the time and trouble gathering the professional reports needed for the review.
42. The Council should have issued its decision letter to Miss X by 4 December 2024 (within four weeks of the review meeting) about its decision to amend Y’s EHC Plan. The Council issued its decision letter on 21 January 2025, this was a delay of approximately 7 weeks. This was fault and not in line with statutory guidance. It caused uncertainty to Miss X.
43. Similarly, the Council should have issued Y’s final EHC Plan by 29 January 2025 (within 12 weeks of the review meeting) but the final Plan was issued on 22 May 2025. This was approximately 16 weeks delay and not in line with the statutory timescale. This was fault. Y was left without an up-to-date EHC Plan to reflect his needs. It also caused distress and uncertainty to Miss X, and her right of appeal was delayed.
44. I note the Council said it issued three drafts before Y’s final EHC Plan was eventually issued in May 2025. I find the Council should have issued a draft Plan, obtained parental comments and then issued the final EHC Plan within the 12 weeks statutory timescale to have engaged Miss X’s appeal right.
45. The Council already accepted it was at fault for the delays with the review process in Y’s case.

Provision of Section F of Y’s EHC Plan

46. I note the Council said it provided Y with a school placement (School 1) and that the school had funding to provide him with the provision in his EHC Plan from October 2024 to March 2025. However, on balance, I find the Council failed to discharge its legal duty under Section 42 of the Children and Families Act 2014. This is because School 1 did not always provide Y with all the agreed provision (mainly the 1:1 provision) in his EHC Plan as set out in paragraph 26. This was fault.
47. I find Y would have been disadvantaged as he missed out on some 1:1 support / specialist provision he needed to meet his SEN between October 2024 and March 2025. It also caused worry, distress and frustration to Miss X. But I find the injustice caused to Y was mitigated because he attended School 1 during this period and received education and some of the provision in his EHC Plan.
48. From April 2025 to May 2025, the Council provided Y with AP during this period, and I am satisfied that it simultaneously provided him with the provisions in his EHC Plan, towards meeting his SEN. This was not fault.

Provision of alternative provision to Y when he stopped attending school

49. There was a four-week period from when Y stopped attending School 1 to when he started receiving the commissioned AP (12 March 2025 – 9 April 2025).
50. There is no legal deadline to start provision, but councils should arrange AP as soon as it is clear a child will be absent for health reasons from school for more than 15 days. In this case, I find the Council acted promptly and took reasonable steps to arrange AP for Y after it became aware he had stopped attending School 1 in March 2025. This was not fault.
51. The Council secured and Y received 23 hours of AP per week from 9 April 2025 until his final EHC Plan was issued in May 2025 and when School 2 was named in his Plan. This was not fault. I find the Council discharged its duty under Section 19 of the Education Act 1996 in Y’s case.

Council’s complaint handling and poor communication

52. Miss X made a formal complaint to the Council in mid-December 2024. There were delays with Council issuing its responses to her complaint. The Council issued its stage 1 and 2 responses in early February 2025 and mid-April 2025 respectively. I also note the Council did not issue its stage 2 response until the Ombudsman got involved. I find fault by the Council for not adhering to its complaints procedure timescales and it caused distress to Miss X.
53. The Council already accepted it poorly communicated with Miss X in its responses to her complaint. This was fault and caused her distress.
54. We have recently made service improvement recommendations in other decisions that the Council should remind staff of the need to complete annual reviews of EHC Plans within statutory timescales, staff training about the need to check special educational provision is in place and for the Council to evidence how it has discharged its duty under Section 42 of the Children and Families Act 2014. We are continuing to monitor the actions the Council takes to ensure compliance with those and similar recommendations. For this reason, I have not made service improvement recommendation about the same identified issues in this case. These identified issues are already being addressed through other cases we have investigated.
55. But I have made further service improvement recommendations as regard other faults identified in this case in the ‘action’ section below.

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Action

56. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following actions within one month of the final decision:

• apologise to Miss X and make her a symbolic payment of £100 to acknowledge the distress, uncertainty and the time and trouble caused to her by the Council’s complaint handling and poor communication. The apology should be in accordance with our guidance, Making an effective apology
• apologise to Y and make him a payment of £2,000 to acknowledge the loss of specialist provision and support caused by the Council’s failure to discharge its duty under Section 42 of the Children and Families Act 2014 between October 2024 and March 2025. This is calculated at £1,000 per term (considering the mitigating factors) in line with our guidance on remedies. The apology should be in accordance with our guidance, Making an effective apology
• review the information the Council sends to schools about the requirements needed for an annual review process of an Education, Health and Care Plan. This should include the requirement to gather information/reports from a child or young person’s professionals and circulate all information gathered two weeks before the review meeting.

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

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Decision

58. I find fault by the Council causing injustice to Y and Miss X. The Council will take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman