Summary: Miss B complained the Council failed to complete the annual review procedure and issue an amended Education, Health and Care (EHC) Plan for her daughter, who I will refer to as C. She also complained the Council failed to secure C with education and provision detailed in her EHC Plan. The Council was at fault. It did not issue an amended EHC Plan within the statutory timescales following the annual review of C’s EHC Plan. It also did not ensure C received section F provision detailed in her EHC Plan and failed to arrange alternative provision for C when it was aware she was not attending school. Because of the fault, Miss B suffered distress and a delayed right of appeal. C also suffered a loss of education and provision. The Council has agreed to apologise to Miss B, make symbolic payments, and finalise and issue the amended EHC Plan without delay. It has also agreed to issue staff briefings and tell us what it will do to ensure it can meet statutory timescales and prevent future delays.

The complaint

1. Miss B complains the Council failed to carry out the follow-up procedure after the annual review for her daughter’s Education, Health and Care (EHC) Plan. She also complains the Council failed to provide her daughter, who I will refer to as C, with education and provision as set out in her EHC Plan.
2. As a result, Miss B says she has suffered stress and anxiety. She also says C has missed education and provision detailed in her EHC Plan.
3. Miss B would like the Council to put appropriate support in place for C, either through an education other than at school (EOTAS) package or a place at a specialist setting.

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The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
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 SEND Tribunal in this decision statement.
7. 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)
8. 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 this decision with Ofsted.

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What I have investigated

9. I have investigated matters in this case from September 2024 to March 2025. I reference matters outside of these dates for context.

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How I considered this complaint

10. I read Miss B’s complaint and spoke to her about it on the phone.
11. I considered evidence provided by Miss B and the Council as well as relevant law, policy and guidance.
12. Miss B 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

EHC Plan 

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 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 

Reviewing EHC Plans

15. 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) 
16. 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.

Maintaining the EHC Plan

17. 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) 

Alternative provision

18. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

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What happened

20. This is a summary of events outlining key facts and it does not cover everything that has happened in this case.
21. C has an EHC Plan. In mid-October 2024 she stopped attending school. Miss B believed the school could not meet C’s needs. She says C masks, which leads to burnout. The Council says Miss B informed it C was not attending school around a week later. Miss B asked the Council for an education other than at school (EOTAS) package for C, or a specialist setting.
22. In early November 2024, an annual review meeting was held. It was decided the Council would:
• go to panel with Miss B’s request of a specialist setting for C;
• work on getting C to return to school; and
• search for alternative provision for C as a supplement to C attending school.
23. Shortly after, Miss B told the Council she would like 15 hours of mentoring and 15 hours of tutoring each week for C. The Council told Miss B this would be EOTAS, which requires a panel decision. It told her it would search for alternative providers in the meantime. It began to consult with another placement for C.
24. In early February 2025, the Council sent its decision to Miss B following the annual review. It told Miss B her request for a specialist setting was considered by the panel and it did not agree C needs a specialist setting, and it needed more information. As such, it told Miss B it would not be amending C’s EHC Plan.
25. In late February 2025, Miss B’s request for a specialist setting was discussed again with the additional information the panel needed. It was agreed a specialist setting would be appropriate for C, with alternative provision in the meantime. Alternative provision was agreed with a mentoring support service for 15 hours each week alongside a tutoring provider for 10 hours each week. Alternative provision was instructed by the Council shortly after.
26. Miss B complained to the Council in March 2025 about the delay in provision starting for C. The Council responded to Miss B. It told her it understood Miss B’s frustration that there were delays in the provision starting, but it must follow processes.
27. C started at a specialist setting in September 2025.

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Analysis

28. In response to my enquiries, the Council acknowledged it needs to issue an amended EHC Plan for C, naming the specialist setting she now attends. The annual review meeting took place in early November 2024. Where the Council decides to amend the Plan, the final amended Plan must be issued within 12 weeks of the review meeting. The Council is yet to issue the final amended Plan, almost 12 months after the review meeting was held.
29. The 12-month wait has delayed, and continues to delay, Miss B’s right of appeal to the SEND Tribunal, until the Council issues the final amended EHC Plan. We take the view that councils must abide by statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timescales is fault and has caused Miss B distress and frustration.
30. The Council was aware in October 2024 C had stopped attending school. So, the Council knew C would not be receiving all the provision in section F of her EHC Plan while not attending. As outlined in paragraph 17, Section 42 of the Children and Families Act requires councils to secure provision in section F. We expect councils to provide as much of the special educational provision as possible in a home or alternative setting even where a child cannot attend school. The question is whether C’s school, where most of the provision was intended to be delivered, was available and accessible. In response to my enquiries, the Council says it was of the view C’s school was able to meet needs and offer the provision and support in section F of C’s Plan, meaning it remained suitable for C to access.
31. However, the school told the Council it was struggling to meet C’s needs around the time she stopped attending school. Miss B also told the Council this. The notes from the annual review meeting also raises concerns about the school no longer being a suitable setting for C; and the need for a plan to re-engage C and work with Miss B to get C to return to school. So, while attempts were being made to return C to school, the Council knew at this point C would not be receiving all provisions in section F of her Plan while she remained out of school. And I have not seen evidence the Council took sufficient action to meet its section 42 duty and ensure arrangements were in place for her to receive all the section F provisions. This was fault.
32. The law also requires councils to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. As outlined above, the Council was aware C was not attending school in October 2024. This meant C was not receiving education provision, as well as the provision outlined in section F of her EHC Plan. The Council should have considered if its section 19 duty was owed at this time when it knew of C’s non-attendance, which it did. It spoke with C’s school who confirmed it was struggling to meet need but would try and work with C. The Council then told Miss B it would look for alternative provision and discuss this at the annual review meeting, where it later confirmed it would search for an alternative provision provider, while attempts were being made to re-engage C with school. But it seems the Council accepted C’s school was not accessible for C as it also began to consult with other placements around this time. The alternative provision was also not immediately available. This was put in place in March 2025. And as the Council knew C was out of school, it knew she would not be receiving any education provision while it consulted with other placements or while it was arranging alternative provision. The Council’s failure to ensure C received an education provision was fault.
33. The fault caused an injustice to C. C missed education and provision because of Council fault from early November 2024 – when I consider the Council accepted C’s school was no longer accessible as it started to consult with other placements – to mid-March 2025, when the Council put alternative provision in place, through a tutoring provider and a mentoring provider.
34. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
35. We have published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
36. When a young person has missed education because of fault by a council, we may recommend the council make a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £900 and £2,400 each term to acknowledge the impact of that loss.
37. In determining an appropriate level we will take account of factors such as:
• The severity of the young person’s SEND as set out in the EHC Plan;
• Any educational provision that was made during the period;
• Whether educational provision can now remedy some or all of that loss; and
• Whether the period affected was a significant one in a young person’s school career, for example the first year of compulsory education, the transfer to secondary school or the period preparing for public exams.
38. Given C’s age, the stage of her education and the level of education and provision that was provided, I consider a payment of £900 each term of missed provision would be appropriate.

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Action

39. To remedy the outstanding injustice caused to Miss B and C by the fault I have identified, the Council will take the following actions within four weeks of my final decision:
• Apologise to Miss B for the delayed appeal right; and the failure to ensure C was receiving an education and section F provisions detailed in her Plan. This apology should be in line with our guidance Making an effective apology.
• Pay Miss B £500 to acknowledge the delayed right of appeal caused by the Council’s delay in issuing C’s amended final EHC Plan.
• Pay Miss B £955 for not providing education provision to C from early November 2024 to mid-March 2025.
40. Within three months of my final decision, the Council will also:
• Finalise and issue C’s amended EHC Plan without further delay.
• Consider what action it can take to enable it to issue amended EHC Plans following annual reviews within statutory timescales, to prevent future delays.
• Remind relevant staff of the statutory timescales for the issuing of amended EHC Plans following the annual review process, and the importance of meeting these timescales.
• Remind relevant staff of the Council’s statutory obligation to ensure a child receives a suitable education if they cannot attend school.
• Remind all relevant staff of the Council’s statutory duty to provide the provision set out in EHC Plans to children who are out of school.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. I uphold Miss B’s complaint and find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman