Summary: The Council was at fault as it delayed reassessing Mrs X’s child Y’s special educational needs following an annual review in 2024 and failed to ensure Y received suitable education provision. It has agreed to apologise and make a payment to Mrs X to acknowledge the distress and frustration and lack of suitable provision for Y caused by these faults. It has also agreed to provide us with an update of its action plan to address delays in its special education needs service.

The complaint

1. Mrs X complained the Council failed to ensure her child Y received a suitable education in line with their Education, Health and Care (EHC) Plan and delayed reassessing their needs. This has meant Y has not received appropriate provision and has caused them significant frustration.

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The Ombudsman’s role and powers

2. 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)
3. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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.
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. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
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(i), as amended)
9. Under our information sharing agreement, we will share the final decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

10. I have investigated what happened since January 2024, 12 months prior to when Mrs X first complained to us. Mrs X has raised issues about Y’s education provision over the last four years. If Mrs X was unhappy with Y’s education provision before January 2024 it was open to her to come to us at that time. There are no good reasons to investigate this now.
11. For background I have included information prior to this and have considered the content of Y’s EHC Plan from 2023 as that was in place during the time covered by the investigation. I have considered Mrs X and Y’s injustice up to September 2025 when the Council says it will finalise Y’s EHC Plan.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. I gave Mrs X and the Council an opportunity to comment on a draft of this decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

EHC Plans

14. 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 which include section F: the special educational provision needed by the child of young person and section I the name and/or type of educational placement. 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. 
15. 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)  
16. Case law (Derbyshire CC v EM and DM (SEN) [2019] UKUT 240 (AAC) sets out that where a child or young person requires full time ‘education otherwise than in school’ (EOTIS, sometimes known as EOTAS) at home, the special educational provision and EOTIS package should be set out in section F. Section I should be left blank, as there is no setting to be attended.

Annual reviews

17. 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.
18. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
19. When a council decides as a result of an annual review to reassess a child’s needs, the reassessment must follow the same process as for a first EHC needs assessment with the same timescales. Overall, the maximum timescale is 14 weeks from the decision to reassess. (SEN code paragraph 9.191)
20. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. The right of appeal is only engaged when the final amended Plan is issued.

Section 19 duty

21. 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.

Background

22. Mrs X and Y moved into the Council’s area in 2021.Y has autism and global developmental delay. Y has not attended a school setting since moving to the Council’s area. Mrs X says Y has received 15 hours a week of tuition from a tutor. Y is primary school aged.
23. The Council’s ‘out of school tuition referral form’ of September 2021 stated Mrs X “is requesting a special school placement. The LA are conducting a placement search but tuition is required whilst this placement search takes place until a suitable school can be confirmed”. It stated due to Y’s toileting needs they required two to one provision although Mrs X would be present initially.
24. The Council held an annual review in May 2022 which resulted in amendments to the EHC Plan in March 2023. It did not hold an annual review in 2023.

What happened

25. The Council provided us with a copy of Y’s final EHC Plan dated March 2023. This was therefore the Plan in place in January 2024. Under ‘the parent’s views’ the Plan said Y was accessing a tuition package and was not getting the chance to interact with children their age. Mrs X stated she wanted Y to attend a special school. In section I this listed the type of setting as “alternative package of education”. The Plan listed provision in section F which included:
• opportunities for individual and small group work with adult and peer models of social interaction.
• to be part of a language-rich environment, whereby they could socialise with children who are positive language models.
• a structured and predictable environment with warnings of changes and talking through a new event before it happens.
• use of a communication card to communicate key messages to the teacher through a visual means.
• a daily schedule or timetable providing information about what will happen and when.
• teach skills in carefully graded small steps with frequent repetition and reinforcement.
• Y’s learning programme to involve a great deal of practical activities, first hand experience and use of concrete materials and practical activities.
• mark making and letter writing in a range of media including pencil, sand, paint, letter magnets.
26. The Plan said this was to be provided by setting staff and the special educational needs coordinator (SENCO) at the setting. This would be provided daily and throughout the school day. It would be reviewed termly by the SENCO, setting staff, parent and Y. Mrs X did not appeal the March 2023 EHC Plan.
27. The Council held an annual review on 12 March 2024. It noted Y received 15 hours one to one tutoring at a community centre. The review noted Y’s reading had progressed well and his speech was good. Mrs X wanted him to have speech and language therapy support and two to one support in the community. The annual review noted Mrs X wanted Y in a school setting, in a small group. It noted any transition would need to be planned and supported to ensure success. The tutor report noted Y’s progress against six targets. Y was working hard on speech and was working on handwriting and grammar. Y had worked on measuring and had attended activity centres to engage with other children. Y required a set routine and if Y did not want to take part in an activity they would hide under the table. At the annual review, the Council agreed to reassess Y’s needs.
28. In early July 2024 Mrs X complained to the Council that Y had received alternative provision using a tutor and had not been in school for four years. She said Y was meant to receive two to one support but only received one to one tuition and had only had one annual review in four years. The Council responded later that month. It said:
• It could not find any obvious parental preference for a school for Y. Despite this it agreed that Y had been without a school place. It said the process to find a school place would follow the reassessment.
• Y’s EHC Plan did state they needed two to one support, but this was primarily written for the classroom context. The tutor had not requested two to one support. It would clarify if this was required.
• It did not hold an annual review for Y in 2023. One was held in March 2024 which agreed to reassess Y’s needs. It said there was a waiting list for an educational psychologist to be allocated. If after the reassessment it agreed to maintain Y’s EHC Plan, Mrs X would be invited to make representations for her preferred school.
• It apologised for the standard of service Mrs X had received.
29. In November 2024 Mrs X complained again. She complained Y’s EHC Plan was not being followed and raised specific concerns about the actions of the tutor over the past year. She said Y had no visual aids, no individual plan for social skills, no learning objective, no assessments of learning and the curriculum was not being followed. She said she had raised her concerns with the EHC Plan team but felt these were brushed aside.
30. In November 2024 the Council received the educational psychologist’s (EP) advice. This noted Y “has received just 15 hours of alternative provision support each week from [the tutor]. As a result [Y] has had limited access to learning opportunities across all areas of development and the curriculum”. The report noted areas for development as:
• Y was not motivated to engage with anyone unless it was on Y’s terms and for the purposes of getting Y’s needs met. Y displayed significant difficulties producing speech sounds and Y’s speech was not clear to an unfamiliar listener.
• Y displayed significantly delayed academic skills and was currently working at pre-key stage 1 levels for literacy and numeracy. Y’s academic potential was not currently known as Y had not had access to quality first teaching in an appropriate educational setting.
• Y was currently unable to infer meaning from language or interpret the meaning of other people’s behaviour in any context. Y would only interact with members of Y’s family or familiar adults on Y’s own terms and displayed total indifference to unfamiliar adults and peers.
• Y had complex physical and sensory needs and required 24-hour care and support.
31. The EP noted Y was not yet meeting pre-key stage standards in any areas and currently navigated the world by their own agenda and specific areas of interest. Y required long term specialist support over and above that ordinarily available in a mainstream setting. Y required a learning environment with a high staff to pupil ratio and the provision of dedicated key adults to provide at least one to one support across all aspects of Y’s day. Once Y was successfully attending a setting, it said it would be beneficial to expand the number of staff supporting Y as and when Y was able to tolerate this. The report recommended outcomes and provision to meet Y’s needs. The EP recommended Y should be referred to occupational therapy to explore Y’s physical, sensory, interception and self-care needs, and speech and language therapy to explore Y’s difficulty with speech, language and swallowing.
32. The Council responded to Mrs X’s complaint in December 2024. It upheld her complaint. It said:
• It upheld Mrs X’s concerns about the standard of provision from the tutor. It said the provider acknowledged they could no longer meet Y’s needs as set out in Y’s EHC Plan. It agreed to consult an alternative provider Mrs X had requested.
• It apologised Mrs X felt her concerns were not taken seriously by the statutory assessment team. It said it had significant challenges regarding staffing and an exceptionally high demand for services.
• It was sorry Y had been without a school placement for a prolonged period. It said responses were received to the most recent school consultations sent by Y’s previous case worker but Mrs X had indicated those approached were not suitable. It said if there were particular schools she wanted consulted then she should advise her case worker.
33. Mrs X remained unhappy, and the Council investigated her concerns at the second stage of its complaints’ procedure in January 2025. It reiterated that it upheld her concerns about the tuition provided to Y, her concerns were not always promptly responded to and that Y had been without a school place. It noted Y had attended taster sessions at an alternative provision setting. It was seeking agreement from its panel to fund this. It apologised to Mrs X for the worry and frustration she experienced.
34. In late January 2025 Y started attending the alternative provision setting.
35. Mrs X remained unhappy. In February 2025, the Council reviewed the complaint at the final stage of its complaints’ procedure. It advised that the Council’s commissioning team, who monitor the performance and compliance of alternative provision suppliers, were asked to investigate the tuition provider. Mrs X said she was not told about any school placement offers and so did not decline any. The Council accepted Mrs X did not decline any offers. It said as Mrs X did not feel the schools consulted were appropriate, they were not pursued and so alternative provision was commissioned instead. It apologised for the lack of clear communication.
36. It said it would prepare for the 2025 annual review. It said that although Y now had a placement and funding was in place, this did not take away from the delays incurred. It apologised. It said Mrs X was not given a clear explanation or timeframe around the statutory process where a child does not or is unable to engage with a mainstream school or a school-based package of alternative education.
37. The Council has not yet produced Y’s final amended EHC Plan following the annual review meeting in March 2024 and its decision to carry out a reassessment. In response to my enquiries, it said there was a delay drafting the Plan due to a significant backlog with the Council’s post assessment panel. It said the expected timescale for completion was late September 2025. It also confirmed it had not consulted any schools for Y since January 2024.
38. In July 2025 Y moved to a different alternative provision in a primary school setting.

Findings

Failure to provide a suitable education

39. Y’s EHC Plan in place since March 2023 stated “alternative package of education” at section I. Case law has established that section I should name a type of school setting or be left blank if ‘education otherwise than at school’ is agreed. A “package” is not a type of setting. Section F should set out how the provision will be delivered. In this case section F is confusing. It is written as if to suggest the provision would be provided in a school setting and reviewed by the setting’s SENCO. If this was the case, section I should have stated a type of school setting.
40. The reports from Y’s tutor suggested Y had made progress against set targets but it is very difficult to establish from the reports whether Y received the provision in section F of their EHC Plan. There is no evidence of any monitoring of Y’s progress against the curriculum. The report produced by the Educational Psychologist in late 2024 set out that Y “was not yet meeting pre-key stage standards in any areas and currently navigated the world by their own agenda and specific areas of interest”. In response to Mrs X’s complaint the Council accepted the tuition provided to Y in 2024 was not up to standard. It is also difficult to see how the Council could have ensured certain elements of Y’s section F provision could have been delivered by using a tutor, including working with and socialising with peers, as Y was taught alone.
41. Mrs X says Y needed two to one support which the Council accepted in its complaint response. However, the need for two to one support, although detailed in the out of school tuition referral form of 2021 is not detailed in the March 2023 Plan. This lack of clarity over what support Y was meant to receive is fault and added to Mrs X’s frustration.
42. On balance I consider the Council failed to ensure Y received a suitable education and most of their special educational provision between January 2024 and January 2025, when Y moved to an alternative provision centre. This was fault and meant Y missed out on suitable education provision.

Delay in amending Y’s EHC Plan

43. The Council carried out an annual review in March 2024 where it agreed to reassess Y’s needs. In line with the Code of Practice the Council should have issued Y’s new EHC Plan within 14 weeks of agreeing to reassess, so by June 2024. Due to a shortage of EPs, the Council did not receive the EP advice until November 2024. As there is a national shortage of EPs, this is service failure.
44. However, after the Council received the EP report, it should only have taken it around eight weeks to write the amended draft Plan, circulate it for comments and consultation before finalising the Plan. It has yet to produce the amended Plan, which it says should be produced by late September 2025, 10 months after it received the EP report. This significant delay is further fault which the Council says is caused by a backlog with its post EHC assessment panel.
45. The overall 15-month delay to finalise Y’s amended EHC Plan, assuming this is done by September 2025, is fault and has caused Mrs X significant frustration. It has also delayed Mrs X’s right of appeal should she disagree with the content of the EHC Plan. Without these significant delays, on balance, it is likely the Council would have found Y a place at an alternative provision setting much sooner and Y would have benefitted from any additional support the Council writes into the soon to be amended Plan. Given the details in the EP report, this extra provision could include therapies such as occupational therapy and speech and language therapy. The delay in finalising the EHC Plan has caused a significant injustice to Y as can been seen by the comments in the EP report about their needs.

Failure to consult schools

46. In its complaint response the Council said Mrs X was not given a clear explanation or timeframe around the statutory process where a child does not or is unable to engage with a mainstream school or a school-based package of alternative education. There is no evidence the Council sought to support Y and Mrs X in getting Y a school-based education. In any case, as section I did not name a type of school, for example mainstream or special, it would have been difficult for Mrs X to know which schools to approach. It has not consulted any schools since January 2024 or given Mrs X any advice or assistance in identifying a suitable school for Y. This was fault and caused Mrs X and Y significant frustration and distress.
47. In response to a separate complaint to us from another family in late 2024, the Council sent us its action plan for addressing the shortage of EPs and staffing issues in its SEND Department. This included funding for eight additional caseworkers and a significant spend on EP capacity. It had also implemented improvements to its consultation process with schools to ensure these were more timely and effective. However, given the findings of significant delay and failure to consult schools found in this complaint, these delays and faults appear to be ongoing. I have therefore recommended the Council provides an update on progress with the action plan.

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Agreed Action

48. Within one month of the final decision the Council has agreed to:
1. apologise to Mrs X for the frustration and delayed appeal rights caused by the delay between January and September 2025 in finalising Y’s EHC Plan; We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
2. pay Mrs X £3600 to acknowledge the impact on Y of a lack of a suitable education and special educational provision for three terms in 2024; and
3. provide us with a copy of Y’s final amended EHC Plan, and a letter to Mrs X confirming her appeal rights.
4. if Y’s amended EHC Plan has additional special educational provision in section F that Y is currently not receiving in his setting, the Council should calculate a remedy in line with our published guidance on remedies. This is to remedy the impact of its failure to ensure Y received this additional section F provision from June 2024 when the EHC Plan should have been finalised and the support in place.
49. Within three months of the final decision the Council has agreed to provide the Ombudsman with an update on its action plan to improve its SEND service, including:
• recruitment of SEND staff;
• the implementation of the new case management system;
• timescales for introducing a portal environment for casework; what improvements it has implemented to improve its consultation process with schools; and
• the actions it is taking to reduce the significant backlog with the Council’s post assessment panel.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman