Summary: Miss X complained about a failure to put alternative provision in place for her child, Y, between 2024 and 2025, delayed annual reviews and a failure to update Y’s Education, Health and Care (EHC) Plan. The Council failed to provide adequate oversight of Y’s provision between January and July 2024 and then failed to put any education in place for Y between September 2024 and January 2025 when they were not on roll at any school. It also delayed amending Y’s EHC Plan by five months following an annual review. The Council agreed to apologise and make payments to acknowledge the injustice this caused. It also agreed to provide us with updates of action it is taking to improve services under its SEND improvement plan.

The complaint

1. Miss X complained the Council failed to provide alternative provision for her child, Y between January 2024 and July 2025. She also said it had not reviewed or updated Y’s Education, Health and Care (EHC) Plan since 2019.
2. Miss X said Y had missed out on education and had an out of date EHC Plan which did not meet their needs. Miss X wanted the Council to arrange alternative provision and issue a new EHC Plan prior to Y’s transition to post-16 education in September 2025.

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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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What I have and have not investigated

6. 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)
7. Part of Miss X’s complaint is about the Council failing to carry out annual reviews and update Y’s EHC Plan since 2019. I have investigated matters from January 2024 onwards only which is just over one year before Miss X complained to us. This period includes how it handled Y’s annual review which took place in November 2024. It was reasonable for Miss X to have complained about concerns prior to this much earlier and I see no good reason as to why she did not.

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How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. 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

10. 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.
11. 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).
12. 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. 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.

SEND Tribunal

13. 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.

Annual Reviews

14. 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.
15. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.

What happened

Background

16. Miss X has a child, Y who at the start of 2024 was of secondary school age. Y was due to transition to post 16 education in September 2025. Y has special educational needs and has an EHC Plan. The EHC Plan in place for Y at the time was issued in May 2019 when they were on roll at a primary school.
17. Y moved to secondary school in 2020 and records show an annual review was next held in October 2022. It was decided following the review to class Y’s education as EOTAS (Education Otherwise than at School). However, the Council did not issue an amended Plan. The Council said from this point it commissioned an alternative provision provider (Provider 1) to provide maths and English for Y as well as practical work such as bricklaying.

January 2024 onwards

18. From January 2024 onwards the Council continued to commission Provider 1 as Y’s alternative provision. Invoice records show the Council paid Provider 1 for Y’s provision for the two terms between January and July 2024.
19. Miss X contacted the Council in September 2024 and informed it Y had not been attending the alternative provision during 2024. She said she tried to take Y back in September but Provider 1 said it had allocated the place to someone else. Records show Provider 1 had allowed Y some time off for personal reasons in early 2024 but it appears Y then did not attend again. There is no evidence of the Council being aware of this prior to Miss X telling it in September 2024.
20. The Council held an annual review at the start of November 2024. Records of the review show Y wanted to stay in education but to learn a trade such as plastering or building. The notes record that Y had been out of education for some time and all areas of the EHC Plan required amending.
21. Following the annual review the Council issued Miss X with a notice that said it intended to amend Y’s EHC Plan. This being the case the Council should have issued the final amended Plan by the end of January 2025.
22. Y remained without any education for the autumn term. Miss X complained to the Council in October 2024 about Y’s lack of education. The Council responded in November 2024. It noted Y had moved to an EOTAS package in 2023 which the Council commissioned but understood from the annual review that Y was not attending. It said it would help Miss X to look for other alternative provision providers.
23. Miss X escalated the complaint to stage two of the complaints procedure. The Council apologised for not addressing the lack of education in the previous response and noted the long period where Y’s EHC Plan had not been updated. It acknowledged Y had evidently not had full-time education and apologised. The Council said it would work to issue Y’s amended EHC Plan by the end of December 2024.
24. Records show the Council commissioned some more alternative provision for Y at two providers which they started attending in January and February 2025. Miss X said Y attended this provision for the remainder of the 2024/25 academic year.
25. Miss X remained unhappy and complained to us.
26. The Council issued Y’s amended EHC Plan in June 2025 naming Provider Z as the post-16 educational placement from September 2025. The Plan came with a right of appeal to the SEND tribunal if Miss X remained unhappy.

My findings

27. Although I have not considered fault or injustice prior to January 2024 it is important to note that at that point Y’s EHC Plan was significantly out of date and had not been amended since they were in primary school. Y was under an unofficial EOTAS package which appears to have started during 2022 but without any oversight from the Council.
28. Y was not attending Provider 1 between January and July 2024. Although there is no evidence of Miss X informing the Council of this there is also no evidence of any oversight, despite paying invoices during this period for Y’s provision at Provider 1. The lack of any oversight or involvement from the Council is fault and stems from the historic failure to review Y’s EHC Plan. This leaves uncertainty around whether more could have been done during this period to reengage Y into education.
29. The Council was aware from September 2024 about the issues at Provider 1 and that Y no longer had a place there. It has accepted fault in that it did not act and consider its duties around Y’s education until it put alternative provision in place in early 2025. It meant Y had no access to education between September 2024 and January 2025 when further alternative provision was put in place.
30. Following Miss X’s contact the Council appropriately held an annual review albeit not until November 2024. In line with statutory timescales and in what was Y’s post-16 transition year the Council should have issued the amended EHC Plan by the end of January 2025. It did not issue it until June 2025 which was a delay of five months and fault. The delay caused distress and uncertainty. Miss X had a right of appeal to the SEND tribunal if she was unhappy with either the content and/or named post-16 placement in Y’s amended Plan.
31. The Council currently has on ongoing SEND improvement plan in place following an improvement notice issued by Ofsted in 2024. This plan includes improving timeliness and quality of EHC Plans and annual reviews. It also includes strengthening its systems for monitoring attendance and identifying gaps in education and provision to ensure timely intervention. Given this I have not made any further service improvement recommendations. I have however recommended the Council provide us with a copy of the action plan and update us on its progress.

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Action

32. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Miss X and Y for the distress and uncertainty caused by the failure to provide proper oversight of Y’s education and for annual review delays between 2024 and 2025. 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.
2. Pay Miss X £2500 to acknowledge the uncertainty caused by the failure to have oversight of Y’s education between January and July 2024 and for Y’s loss of education between September 2024 and January 2025.
3. Pay Miss X £250 to acknowledge the distress, uncertainty and delayed appeal rights caused by the five month delay in issuing Y’s amended EHC Plan following an annual review.
4. Provide the Ombudsman with a copy of its SEND improvement plan and evidence of what it has already carried out to improve timeliness of annual reviews and oversight of school attendance and children/young people with Education Other than at School (EOTAS) packages.
33. Within three months of the final decision the Council should provide a further update of actions carried out under its SEND improvement plan.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman