Summary: Mrs X complained the Council delayed carrying out a review of her son’s Education, Health and Care Plan and incurred delays after the review was held. Mrs X also complained the Council failed to ensure her son received educational provision when he was unable to attend school. She says the Council’s actions caused avoidable distress to her and her son. We found fault by the Council. The Council has agreed to provide an apology and a financial remedy to Mrs X.

The complaint

1. Mrs X complained the Council delayed carrying out a review of her son’s Education, Health and Care Plan and incurred delays after the review was held. Mrs X also complained the Council failed to ensure her son received educational provision when he was unable to attend school. Mrs X says the Council’s actions caused avoidable distress and left her son with an outdated Education, Health and Care Plan and without suitable educational provision. She would like the Council to make sure it follows relevant legislation regarding Education, Health and Care Plans.

Back to top

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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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)
4. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
5. 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.
6. 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)

Back to top

What I have and have not investigated

7. I have investigated the complaint referred to in paragraph one for the period March 2024 (12 months before Mrs X brought her complaint to the Ombudsman) to February 2025.
8. I have not investigated the period prior to March 2024 because this period relates to a late complaint and there are no good reasons to exercise discretion. I have not investigated the period after February 2025 because this is when Mrs X appealed to the Tribunal.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs X and the Council had an opportunity to comment on a draft of this decision. I considered any comments before making a final decision.
12. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Education, Health and Care Plans

13. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
14. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision needed by the child or the young person
• Section I: The name and/or type of educational placement 

15. We cannot direct changes to the sections about the child’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
16. 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)  
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. 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) 
18. There is a right of appeal to the Tribunal against some decisions made by councils about EHC Plans, including:
• The 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 the EHC Plan, and
• A decision not to amend an EHC Plan following a review or reassessment.
19. 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)
20. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.

Alternative education provision

21. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or otherwise, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
22. The concept of being ‘otherwise’ unable to attend school is not defined in legislation or statutory guidance but has been explored as part of several judicial reviews. The commonly used definition is that a child is ‘otherwise’ unable to attend school in any situation where it is not reasonably possible for a child to take advantage of any existing suitable schooling. The acid test is whether educational provision offered by the local authority is available and accessible to the child. 
23. In practice, we would expect to see Councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. If, having considered all relevant evidence, a Council decides the school place remains available and accessible to the child, we would expect this to be clearly documented, and communicated promptly to the parents.

What happened

24. This chronology includes key events in this case and does not cover everything that happened.
25. The Council issued Mrs X’s son, Y, with an EHC Plan in March 2021. At that time, Y attended a mainstream school.
26. Some time after, Y’s educational setting changed and he started attending a specialist education school, School A.
27. On 9 September 2024, School A carried out a review of Y’s EHC Plan. Mrs X told the review meeting that Y experienced sensory overload in the classroom, and this had caused burnout. Mrs X said this had affected Y’s attendance at school. The review recommended significant educational outcome changes in addition to amendments to several sections of the EHC Plan.
28. In November 2024, Y stopped attending School A. Mrs X says this was due to a significant increase in anxiety which she says was caused by changes in the school environment.
29. In December 2024, Mrs X asked the Council to arrange a meeting to discuss the next steps for Y and his EHC Plan.
30. Shortly after, the Council highlighted Y’s case to the annual review team as a priority. At the same time, Mrs X told the Council she wanted a change of placement for Y. Mrs X asked the Council to consult with an alternative school, School B.
31. The Council held an annual review of Y’s EHC Plan on 9 January 2025. Mrs X said Y had been unable to attend School A for about 6 weeks as he found the setting too challenging and because he was struggling with his peers. Mrs X said staff changes at the school had removed most of the key adults that Y felt able to communicate with. Mrs X said these issues had caused Y to refuse to attend School A; she repeated her request for the Council to consider placing Y at School B.

Mrs X’s complaint

32. Mrs X complained to the Council on 24 January 2025. She said Y’s last EHC Plan no longer reflected him or his needs as it was issued in March 2021. Mrs X said the EHC Plan was reviewed twice, (in September 2024 and again in January 2025) but the Council had not provided a decision following either review. Mrs X also complained Y had received no educational provision while he was unable to attend school.
33. On 3 February 2025, the Council issued its decision letter following the review held on 9 January 2025. The Council decided to maintain Y’s EHC Plan; it said it considered no changes were required as the provision detailed in the plan was appropriate to meet Y’s needs.
34. Mrs X attended a meeting with the Council the following day. Following the meeting, the Council issued its complaint response. It apologised for the lack of communication with Mrs X and for the delays regarding the review of Y’s EHC Plan.
35. On 4 February 2025, Mrs X escalated her complaint to stage two of the Council’s complaints procedure; she said the stage one response did not address any of her concerns. Mrs X complained the Council had decided Y should stay at a school that he could not attend due to his severe anxiety and sensory difficulties. Mrs X said the Council had let Y down by not providing any education or provision for months.
36. On 6 February 2025, Mrs X appealed to the Tribunal regarding the Council’s decision to maintain Y’s EHC Plan. Mrs X disagreed with sections B, F and I.
37. The following day, the Council provided its stage two complaint response following a meeting with Mrs X. The Council said it had agreed to amend its decision to maintain the placement at School A and said it would send consultation letters to different settings, including School B. The Council said it would also take forward the amendments to Y’s EHC Plan. The Council apologised for the experience Mrs X had received and said it would work with her to rectify what was required for Y.
38. Mrs X remained dissatisfied with the Council’s response and brought the complaint to us.

What happened next

39. Y started a placement at School B in April 2025.
40. Mrs X says the contents of Y’s EHC Plan remains completely outdated.

Analysis – delays in the EHC Plan process

41. The Council issued an EHC Plan for Y in March 2021. The Council says it carried out an annual review of the plan in 2022 and acknowledges it did not carry out another review until 9 September 2024.
42. Statutory guidance, ‘Special educational needs and disability code of practice: 0 to 25 years’, (the Code of Practice), sets out the timeframes for EHC Plan reviews. The Code of Practice says reviews of EHC Plans must be reviewed by local authorities every 12 months as a minimum.
43. The Council has acknowledged delays in the EHC Plan process and says it has produced a tracking and monitoring system for all annual reviews. It is positive the Council has taken steps to improve its service. However, the failure to carry out a review of Y’s EHC Plan within the required timeframe is fault.
44. The Code of Practice also says local authorities must decide whether they propose to keep the plan as it is (to maintain it), amend or cease to maintain the EHC Plan within four weeks of the review meeting. They must also notify the parent or young person and school.
45. Mrs X says she did not receive a decision letter from the Council following the review on 9 September 2024, and I have seen no evidence to indicate the Council provided one. The Council’s failure to provide a decision letter is not in accordance with the Code of Practice. This is fault.

Educational provision while not attending school

46. Mrs X says Y was too unwell to attend School A due to sensory overload and because of severe anxiety caused by changes in the school environment.
47. Where a parent says a council should provide education other than at school, the test will be whether the child is too unwell to attend any school, not just the school where they are on roll. Councils must consider if the educational provision offered is available and accessible to the child. This is a decision for the local authority to make, taking account of all relevant evidence.
48. As part of my enquiries, I asked the Council to provide an explanation and evidence to demonstrate how it considered whether the placement at School A remained available and accessible to Y. The Council’s response stated it provided School A with the appropriate resources to ensure Y’s needs and provisions were met.
49. I acknowledge the Councils comments. However, I have seen no evidence to demonstrate how/if the Council considered its section 19 duties when Y stopped attending school, or how it considered if the placement at School A remained available and accessible to him. As previously stated, we would expect the Council’s consideration and rationale regarding this matter to be clearly documented.
50. In addition to considering its section 19 duties, section 42 of the Children and Families Act says local authorities have a duty to ensure a child receives the special educational provision specified by their EHC Plan.
51. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. However, we consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 
52. The Council carried out an annual review in January 2025; at that time, Y was not attending school. As stated above, we would expect the Council to demonstrate it checked the provision provided to Y at that time, as part of the review process.
53. I have seen no evidence to demonstrate how/if the Council ensured Y received as much section F provision as possible while he was not attending school. The Council’s response to enquiries simply states it provided School A with the appropriate resources.
54. The Council is therefore unable to demonstrate it maintained appropriate oversight to determine whether Y received the special educational provision set out in his EHC Plan. This, together with the failure to demonstrate how the Council considered its section 19 duties, is fault.
55. This fault caused an injustice to Mrs X, namely uncertainty as to whether the Council adequately considered its duties while Y was not attending school. I also acknowledge Mrs X’s comments that the Council’s actions caused avoidable distress to herself and Y.
56. The Council has acknowledged there were delays within the annual review process. It says it has identified significant areas for development and has put in place a focused plan to improve timeliness across the service. It says that since April 2024, it has worked to increase capacity within the team and has introduced new standard operating procedures to be implemented from September 2025. The Council says these steps will address the concerns around timeliness with annual reviews and consultations.
57. I acknowledge the Council’s comments and consider it is positive it has taken steps to improve its service, including creating a plan to improve timeliness, and the introduction of new operating procedures. As the Council has already taken this action, I have not recommended similar additional service improvements regarding the Council’s processes. I acknowledge the Council has only recently implemented the new standard operating procedure and acknowledge it will take time to determine the efficacy of the new process coupled with the increased team capacity.

Back to top

Action

58. To address the injustice identified, the Council has agreed to take the following actions within one month of the final decision:
1. Provide an apology to Mrs X and Y for the fault identified. 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 I have recommended in my findings;
2. Make a symbolic payment of £475 to Mrs X in recognition of the distress and uncertainty caused by the fault identified;
3. Provide a copy of the Council’s plan to improve timeliness across its special educational needs and Education, Health and Care Plan service;
4. Remind staff of the Council’s duty to carry out Education, Health and Care Plan reviews, and to issue decision letters within the statutory timeframes, and
5. Remind staff to ensure they retain evidence to demonstrate the service’s consideration of the Council’s section 19 and section 42 duties.
59. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

60. I have found fault causing injustice. The Council has agreed to take the above actions to remedy the injustice identified and I have therefore concluded my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman