Summary: The Council delayed issuing a final amended Education, Health and Care Plan after Mrs X’s child, Y’s, annual review. This left Y without an up-to-date Plan and caused them significant frustration. The Council’s communication with Mrs X was also poor which added to her frustration. The Council has agreed to apologise to Mrs X and make a payment to acknowledge the frustration the faults caused.

The complaint

1. Mrs X complained the Council delayed issuing a final amended Education Health and Care Plan after her child Y’s annual review of October 2024. This caused her and her child frustration and meant her child has been without appropriate provision.

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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. 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)
4. 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

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

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What I found

Relevant law and guidance

7. 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.
8. 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. 
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).

Annual Reviews

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. 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.

Alternative provision and the Section 19 duty

11. 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.
12. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017).

What happened

13. The following is a summary of the main events relevant to the complaint.
14. Mrs X’s child Y attended a special school, School A. Y has autism spectrum disorder and has difficulties with social communication, social interaction and flexibility of thought. Y was unhappy at the school, so Mrs X requested an early annual review with a view to Y moving to School B, a mainstream school. School A arranged the annual review for 17 October 2024. Mrs X asked someone from the Council to attend but nobody was available. The annual review set out changes required to section F of Y’s EHC Plan and a proposed change to section I. It noted Y was looking to move to School B, a mainstream school, in the new year due to the lack of social opportunities offered at School A and the lack of positive role models and like-minded peers.
15. School A sent the Council the annual review paperwork on 5 November 2024.
16. Mrs X contacted the Council in early December 2024 requesting an update. She said Y was struggling at School A and was not currently attending. Later that week she updated the Council that due to an incident at School A Y would not be returning to the school. Mrs X contacted the Council twice again the following week requesting an update. She said she had spoken to school B and it had not received any paperwork. The Council contacted Mrs X and advised the notice of amendment was waiting to be issued along with a request to consult school B.
17. In early January 2025 Mrs X submitted a formal complaint to the Council about the delays which she said were adversely affecting Y’s mental health. Around this time the Council sent out the notice of amendment and consultation to School A and School B. School A and Mrs X contacted the Council to advise the EHC Plan sent out for consultation had not been updated following the annual review and was an old version from 2021. School B did not agree to accept Y.
18. In mid-January 2025 Y returned to School A on a phased timetable of three mornings per week. School A reviewed this monthly.
19. The Council responded to Mrs X at stage one of its complaints’ procedure in late January 2025. It accepted it had exceeded statutory time limits. However, due to School B being closed for Christmas it did not consider that this unduly affected the consultation. It upheld the complaint. It explained it had a backlog due to the unprecedented demand for SEND services. It said it had implemented several initiatives to ensure it could provide appropriate support in a timely manner. This included working with schools to ensure pupils received the right support whilst waiting for an assessment and backdating payments for SEND provision to schools. In mid-February 2025, Mrs X asked that her complaint be considered at stage two of the Council’s complaints’ procedure.
20. Mrs X contacted the caseworker about the changes need to the EHC Plan and asked for a meeting. This meeting was held in early February. Two weeks later the caseworker said they would look at the proposed changes and then reconsult.
21. The Council responded at stage two of its complaints’ procedure in early March 2025. It upheld her complaints regarding poor communication which caused further unnecessary delays. It said the notice of amendment and draft EHC Plan would be sent that day.
22. Mrs X contacted the Council for an update in mid-March. The caseworker said they would look at the consultation response later that week but in the meantime School B advised Mrs X it would not accept Y. To do so it required additional funding for a member of staff to directly support Y. It also raised other issues about the support it could provide. Mrs X says she was not told what the concerns were.
23. In early April 2025 the caseworker asked the Council’s moderating panel for additional funding to support Y at School B. The panel agreed to this for one term to support Y’s integration back to a mainstream setting. School B raised further issues with the Council and said Y could not start until it had recruited a staff member and it required confirmation from the Council on exactly what funding it had agreed to.
24. Y’s phased return to School A continued and they returned full time in early May 2025.
25. In early May 2025 the Council told Mrs X that it had agreed funding, but School B needed to recruit staff. It said in the interim it could look at a different option such as naming School B and commissioning a tutor in the meantime or name School A until School B recruited and then issue an amended plan. Mrs X responded that she had lost faith in the Council and that its communication had been extremely disappointing.
26. Later in May Mrs X asked for an update. The caseworker said they had met School B to discuss funding. Mrs X responded that she was frustrated School B had not made her aware of the potential difficulties when she first visited it and asked if School C could be consulted.
27. The Council consulted School C in late May 2025. The Council updated Mrs X it had not received a response and agreed to contact the School. It said it could name School C but Mrs X was concerned it may not be able to fully meet Y’s needs. School C responded in mid June 2025. It said it would need additional funding to employ an additional staff member to support Y in all sessions to provide focussed support and catch up. The Council’s moderating panel agreed to the request for additional funding in early July.
28. The Council issued Y’s final amended EHC Plan naming School C on 17 July 2025.

Findings

29. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
30. The Council held an annual review of Y’s EHC Plan on 17 October 2024. It should have issued an amendment notice, with details of what the proposed changes to the EHC Plan were, within four weeks of the annual review meeting, so by 14 November 2024. It did not do so until early January 2025. It should then have issued a final amended Plan within eight weeks of the amendment notice, so by 9 January 2025. Y’s final amended EHC Plan was not issued until mid-July 2025. These delays were fault.
31. When the Council issued the amendment notice in early January 2025 it sent out an old version of Y’s EHC Plan which had not been updated since the annual review. This was fault and meant School B was not aware of Y’s current needs or the updated provision set out in section F of the Plan. When Mrs X and School A raised this, the Council then delayed making the amendments to the Plan so that School B could be reconsulted. This delay was fault and led to a significant delay in Y changing schools and caused Mrs X significant frustration.
32. The Council’s communication with Mrs X was poor. The Council failed to keep her updated and Mrs X had to repeatedly chase the Council for an update. This was fault and added to Mrs X’s frustration.
33. Councils must intervene and provide education under their section 19 duty if no suitable educational provision has been made, for example by their school, for a child who is missing education through exclusion, illness or otherwise. The Council also has a non-delegable duty to ensure a child receives the section F provision within their EHC Plan. This means that once the Council was alerted to Y's absence it should have considered its legal duties and whether it needed to take action. Y had difficulties at School A and was out of school during December 2024. Mrs X made the Council aware Y was not attending school. It failed to consider what provision Y was receiving and whether this was sufficient. This was fault. However, School A worked with Mrs X, and Y returned on a phased timetable in January 2025, increasing to full time in early May 2025. The Council may have concluded that was sufficient based on the circumstances at the time. However, the Council’s failure to properly consider its duties leaves Mrs X with a sense of uncertainty over whether it may have offered Y more support.
34. In late 2024 we issued a decision on a separate complaint from a different complainant about this Council relating to SEN provision and communication. As a result of that complaint, in March 2025 the Council provided us with an action plan which included:
• Termly meetings between SEND team and educational settings to allow for greater scrutiny regarding delivery of provision in section F.
• Improved communications with service users to ensure concerns can be addressed in timely manner.
• Changes to the moderating panel to make it easier for SEND staff to escalate requests for additional funding/resource where this is a barrier to delivery.
• Ensure complaints are responded to by suitably trained SEND officer. All SEND investigating officers trained in dealing with complaints and it provided evidence of this training.
35. Given this action plan which overlaps with the timeframe of this complaint, I have not made any service improvement recommendations. However, we will continue to monitor the Council’s performance through our casework.

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Agreed Action

36. Within one month of the final decision, the Council has agreed to apologise to Mrs X and pay her £700 to acknowledge the frustration and uncertainty she was caused by the Council’s faults. 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.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman