Summary: Miss X complained about annual review delays and a failure to put alternative provision in place for her child Y when they stopped attending school in April 2024. The Council delayed ensuring Y had alternative provision in place between June and October 2024 and it issued an amended Education, Health and Care (EHC) Plan without holding a fresh annual review or issuing a decision letter. The Council agreed to make a payment to Miss X to acknowledge the distress and uncertainty caused. I cannot consider Y’s education and provision after October 2024 because Miss X has appealed to the SEND tribunal.

The complaint

1. Miss X complained the Council failed to put suitable alternative provision in place for her child, Y after they stopped attending school in April 2024. She also complained about annual review delays and miscommunication about an Education, Health and Care (EHC) needs assessment decision.
2. Miss X said Y missed out on education throughout 2024 and this continued into 2025 which is causing distress and uncertainty.

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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. 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)
5. 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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How I considered this complaint

6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. 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

Relevant law and guidance

EHC Plans

8. 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.
9. 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.

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

Annual Reviews

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. Where the council proposes to amend an EHC Plan following a review, 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.

SEND tribunal

12. 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.
13. 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.
14. 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.
15. 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.
16. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

What happened

17. Miss X has a child, Y who is of secondary school age and has special educational needs including a diagnosis of autism and social and communication needs. Y has an EHC Plan which named a mainstream secondary school in 2023 for their transition to secondary education.
18. Records show Y struggled with the transition to secondary school and started on roll at an independent special school (School 1) from October 2023. Y struggled to attend during a 12 week transition period which records show was attributed to anxiety and mental health difficulties.
19. In February 2024 case notes show Y was attending School 1 for 1.5 hours a day with a view to slowly increasing attendance week by week.
20. In April 2024 the Council met with Miss X about Y’s school attendance. Miss X said Y was refusing to attend School 1. She said various techniques had been attempted without success. Case notes show School 1 would attempt for Y to attend for 10 hours a week and then review it again in May. Miss X said Y required some therapeutic input.
21. Records show Y stopped attending School 1 all together in April 2024.
22. Y’s annual review was held in June 2024. Notes of the review meeting show Miss X wanted Y to have an Education Otherwise than at School (EOTAS) package. Following the annual review the Council sent Miss X a list of alternative provision providers.
23. A couple of weeks later the Council wrote to Miss X with a letter saying it intended to amend Y’s EHC Plan and included a draft EHC Plan.
24. In early July 2024 Miss X emailed the Council asking for some additional time to make changes to Y’s draft Plan. Miss X wanted content related to a ‘school setting’ removed from the Plan and for Y to receive EOTAS from September 2024. Miss X also asked for an update about an EHC needs-reassessment for Y. There is nothing in the case records which show Miss X made a formal request for a reassessment of Y’s needs.
25. At the end of July 2024 the Council’s SEN panel decided not to carry out a re-assessment of Y’s needs. The Council send Miss X a letter notifying her of this decision in early August 2024.
26. The panel also reviewed the annual review records and decided no changes were required for Y’s EHC Plan as there was no change in Y’s needs. The Council sent Miss X a new decision letter stating it was maintaining Y’s EHC Plan. It sent a final EHC Plan which continued to name School 1 in section I.
27. Miss X contacted the Council questioning the decision to maintain Y’s EHC Plan as she believed it did not meet their needs. The Council proposed an alternative provision package for Y from September 2024.
28. Y began receiving alternative provision for two hours a week in September 2024 which Miss X arranged at Provider 1. At the start of October the Council agreed to commission the alternative provision, making payments to Provider 1 directly. This provision allowed Y to work towards increasing their hours and included animal therapy.
29. Miss X complained to the Council. She said no final EHC Plan had been issued following the June annual review and said the Council had incorrectly then issued a decision to maintain Y’s EHC Plan. Miss X said Y had not attended school since April 2024 and no alternative provision was in place. She also raised she never asked for an EHC needs reassessment.
30. The Council issued another final EHC Plan in October 2024 which named ‘specialist setting’ in section I.
31. The Council responded to Miss X’s complaint. It said:
• It apologised about incorrect letters being submitted after the June 2024 annual review. It further apologised for sending the amended EHC Plan in October 2024 without providing Miss X with a draft Plan.
• Although Miss X did not formally request an EHC needs reassessment it was implied she had requested one in her correspondence in July 2024. It apologised that the decision was not issued within 15 days.
• Staff pressures and inconsistencies meant Y’s alternative provision was not dealt with in a timely manner but said funding was now in place and it had processed back payments to 1 September.
• It would look to increase Y’s alternative provision going forward.
32. Miss X was unhappy with the complaint response but the Council declined to respond at stage two as it had nothing further to add.
33. Miss X appealed the content and named placement in Y’s EHC Plan to the SEND tribunal in December 2024 with a hearing set for November 2025.
34. Miss X remained unhappy and complained to us.
35. Following our enquiries the Council said it had rolled out training to its staff at the end of 2024 about the annual review process and timescales to issue decision notices. It carried out refresher training in mid-2025. It had also recruited additional SEND caseworker staff.
36. Also, since the scope of this complaint we have made recommendations following the conclusion of other investigations, for the Council not to let alternative provision cases drift to ensure children out of school who require alternative provision receive it without delay.
37. Given the above I have not made further service improvement recommendations and we continue to monitor the Council’s compliance through our casework.

My findings

Annual review

38. The Council’s handling of Y’s annual review was confusing. It issued an amendment notice and draft Plan and then without adequate communication with Miss X it decided after that to maintain the current Plan. It then issued another final Plan in October 2024 without carrying out a new review, providing Miss X with a decision letter or a draft EHC Plan. All of this was fault and caused Miss X frustration and uncertainty.

Needs reassessment

39. Miss X did not make a formal request for an EHC needs reassessment although her communication in July 2024 asked for an update about a reassessment. Therefore it is not fault that the Council took her implied request forward to panel. The Council has apologised for the slight delay in notifying Miss X about the decision not to reassess which is suitable to remedy any injustice caused.

Alternative provision

40. Although Y stopped attending school in April 2024 there is evidence at the time of the school working with Miss X in an attempt to help them access it. This included a reduction of hours and other techniques to help them enter the building.
41. However, the records show the Council accepted Y required alternative provision from at least June when the annual review took place. It failed to put provision in place between June and July 2024. Although Y started receiving alternative provision in September 2024 the Council delayed ensuring funding was in place until October 2024. That was fault. It meant Y missed out on the opportunity to receive provision during June and July 2024 and caused uncertainty to Miss X between September and October 2024.
42. Y remains out of school receiving limited alternative provision. The final EHC Plan Miss X received in October 2024 came with a right of appeal which Miss X used in December 2024. The core of Miss X’s appeal to the tribunal was about the Council’s decision to name a ‘specialist school’ in Y’s EHC Plan, as she feels Y needs an EOTAS package. The consequence of which meant Y is not attending a school setting. Therefore, I cannot investigate the period after October 2024 as it would result in me looking at the Council’s decision and reasoning to name a school setting in Y’s EHC Plan. Investigating would therefore trespass on the tribunal’s jurisdiction. In line with the reasons explained in paragraphs 14-16 this period falls outside of our jurisdiction and is therefore not something I can investigate.

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Action

43. Within one month of the final decision the Council agreed to apologise to Miss X and pay her £500 to recognise the distress, frustration and uncertainty caused by the alternative provision faults and its handling of the annual review process during 2024. 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.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. I found fault causing injustice and the Council agreed to my recommendation to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman