Summary: Mr X complained the Council delayed issuing his child Y’s final amended Education, Health and Care (EHC) Plan naming a new school and failed to arrange suitable alternative education while Y was out of school. We found fault because the Council delayed completing the EHC Plan review process, failed to consider its section 19 duty once it became aware Y was out of education, and delayed responding to Mr X's complaint. These faults caused Y to miss education and special educational provision, and caused Mr X and his family distress, uncertainty and avoidable frustration. The Council has agreed to apologise and make a payment to Mr X.

The complaint

1. Mr X complains about the time taken by the Council to issue Y’s final amended Education, Health and Care (EHC) Plan naming a new school, and its failure to arrange suitable alternative education while Y was out of school.
2. Mr X says these failings resulted in Y missing education, a deterioration in their mental health, and the development of severe school avoidance. He also says the situation had a wider adverse impact on the family.

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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 Mr X and the Council as well as relevant law, policy and guidance.
7. Mr 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 legislation and information

EHC Plan 

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. 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. 

Maintaining the EHC Plan

9. 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)  

Reviewing EHC Plans

10. 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. Following the review meeting the council must issue a decision to either amend, maintain or cease to maintain 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) 
11. 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.

Section 19 duty

12. Section 19 of the Education Act 1996 says that the council must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.

Establishing a section 19 duty

13. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this, and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.

What happened

14. Y has special educational needs and an Education, Health and Care (EHC) Plan.
15. In September 2024, Y's school (School A) held Y's annual review meeting. The review recorded Y's poor attendance and the impact this was having on their education. It recommended the Council amend the EHC Plan. The review also recorded that Mr X wanted the Council to consult School B.
16. In October, the Council received the annual review paperwork.
17. After this, Mr X contacted the Council asking it to consult School C, an independent school. The Council explained that the process for naming an independent school differed from that for maintained and mainstream schools, and said Mr X should first establish whether School C had a place available for Y.
18. In November, Mr X told the Council Y had not attended school since April 2024.
19. Shortly afterwards, the Council issued an amendment notice and draft amended EHC Plan setting out the proposed changes. It invited Mr X's comments and incorporated some of his suggested amendments into the draft.
20. School C disputed the Council's view that Mr X needed to establish whether it had a place available and could meet Y's needs before the Council would consult it. Mr X and School A passed this information to the Council.
21. In December, the Council consulted four schools, including Schools A and B. Later that month, all four schools responded that they could not offer Y a place.
22. In January 2025, the Council consulted School C. School C confirmed it could meet Y's needs and offered them a place.
23. Before agreeing to fund the placement, the Council considered whether another school would be more appropriate. Once it concluded this was not suitable, around two weeks after first considering School C, it agreed to fund the placement. It then issued Y's final amended EHC Plan naming School C, and Y started there shortly afterwards.
24. In May, Mr X complained to the Council. He said Y had been without education between April 2024 and starting at School C, and that the Council had taken too long to resolve matters. He also said he had complained twice in February but received no response.
25. In July, the Council responded. It apologised for the delay in naming School C.
26. Mr X escalated his complaint. He said he had been advised not to complain until the placement issue had been resolved. He explained that, now it had been resolved, his complaint concerned the Council's handling of the matter, the delay involved, and the stress and anxiety this had caused his family.
27. In October, the Council issued its final complaint response. It accepted there had been delays, acknowledged it should have acted more promptly and communicated more effectively, apologised, and offered Mr X £300 in recognition of the distress caused.
28. In response to my enquiries the Council said:
• it has no record of receiving earlier complaints from Mr X;
• it has no record of telling Mr X he could not complain while decisions about Y's placement were ongoing;
• it accepts there were delays in issuing the amendment notice and sending consultations to schools; and
• it accepts that, once it received the annual review paperwork in October 2024, it should have considered its duties under section 19 of the Education Act 1996 and arranged suitable interim education and special educational provision for Y.

My findings

Delay in issuing the final amended EHC Plan

29. Following an annual review, the Council must notify the parents of its decision whether to maintain, amend or cease the EHC Plan within four weeks of the review meeting. Where it decides to amend the Plan, it should issue the amendment notice within that period and then issue the final amended EHC Plan within a further eight weeks. In total, the process should normally be completed within 12 weeks of the annual review meeting.
30. The Council did not issue the amendment notice until around nine weeks after the annual review meeting. It then took a further 14 weeks to issue the final amended EHC Plan. Overall, the Council delayed the process by around 11 weeks. This was fault.
31. I acknowledge part of the delay arose because School A did not promptly send the annual review paperwork to the Council. However, the Council remains responsible for ensuring annual reviews are completed within the statutory timescales and for progressing the review once it becomes aware it has taken place.
32. Once Mr X identified School C as his preferred placement, the Council should have considered whether to consult it without unnecessary delay. It was the Council's responsibility to carry out consultations as part of the EHC Plan review process. By delaying consultation with School C while expecting Mr X to establish whether the school had a place available, the Council introduced further avoidable delay. This was fault. However, I have not recommended a separate remedy because I have already taken the resulting delay into account when considering the overall delay in issuing the final amended EHC Plan.
33. The delay caused Mr X and his family avoidable distress and uncertainty while they waited for Y's educational placement to be resolved. The Council has already acknowledged this and offered Mr X £300. Having considered our Guidance on Remedies, I am satisfied this is an appropriate remedy for this element of the complaint.

Alternative education and special educational provision

34. The annual review paperwork received in October 2024 clearly identified Y's poor attendance. Mr X then explicitly informed the Council in November 2024 that Y had not attended school since April 2024. At that point, the Council should have made enquiries about the education Y was receiving and considered whether its duty under section 19 of the Education Act 1996 had arisen. It failed to do so. This was fault.
35. The Council accepts it should have considered its section 19 duty and arranged suitable interim education, including Y's special educational provision. Because it failed to do so, Y missed suitable education and provision between October 2024, when the Council became aware of the situation, and February 2025, when they started at School C. This caused Y a significant injustice.
36. Where council fault results in a child missing education and special educational provision, we normally recommend a symbolic financial payment to recognise that loss. Taking account of Y's age, their individual circumstances, the provision specified in section F of their EHC Plan and the period of approximately 1.2 school terms, I consider £2,000 is an appropriate remedy.

Complaint handling

37. Mr X says he complained in February 2025, but neither he nor the Council has been able to provide evidence that those complaints were received. On the balance of probabilities, I cannot conclude earlier complaints were made.
38. The Council's complaints policy says it will respond within 20 working days. It took 54 working days to provide its stage one response and a further 66 working days to respond at the next stage. These delays were fault and caused Mr X avoidable frustration and distress.

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Action

39. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to:
• Apologise to Mr X in line with our guidance on Making an effective apology; and
• Pay Mr X a total of £2,400, inclusive of the £300 already offered. Comprised of:
1. The £300 previously offered to recognise the distress and uncertainty caused by the delay issuing Y’s EHC Plan;
2. £2000 to recognise the loss of education and special educational provision; and
3. £100 to recognise the distress caused by its poor complaint handling.
40. I have not made any further service improvements. This is because, since the period covered by this complaint, the Council has already provided relevant training and guidance to staff and is keeping the Ombudsman updated on the actions it is taking to strengthen staffing and improve its service.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. 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