Summary: We found the Council failed to complete the annual review of Miss X’s child’s Education, Health and Care Plan since 2023. The Council has already provided a proportionate financial award and apology for this fault. We also found the Council failed to consider the suitability of Y’s access to education for three months from 2024 to 2025 and failed to provide Alternative Provision of education for Miss X’s child causing lost education for one and a half terms in 2025. The Council has agreed to provide a further financial award as a symbolic payment for the impact of its fault.

The complaint

1. Miss X complained the Council failed to update her child’s Education, Health and Care (EHC) Plan from 2022 until 2025.
2. Miss X says when the Council did amend her child’s EHC Plan, it refused to name specialist provision in the 2025 amended plan.
3. Miss X also complained the Council failed to ensure her child had access to suitable full-time education since 2023.
4. Miss X says the Council’s action have meant her child has not had access to suitable education, which in turn has impacted on her child’s mental health and welfare. Miss X says the Council’s actions have also caused her distress, uncertainty and impacted the family setting.

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The Ombudsman’s role and powers

5. 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)
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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
8. 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)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
10. 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)

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What I have and have not investigated

11. I have investigated Miss X’s complaint from November 2023 until October 2025.
12. I have not investigated matters before November 2023. This is because we cannot investigate matters beyond 12 months from a person bringing their complaint to the attention of the Ombudsman without good reason to do so. I have looked back slightly further than 12 months to November 2023 because this is the date the school held an emergency annual review and forms a good starting point for the investigation. However, there is no good reason Miss X could not have brought her complaint to us sooner to justify an investigation further back. I have included reference to some events before November 2023, but this is only for context.
13. I have ended my investigation from October 2025. This is because the Council started to provide Alternative Provision of education in October 2025 subject to agreement over a permanent placement at a specialist school. Since Miss X has not complained to the Council about the Alternative Provision of education itself, and all events after October 2025 are more than six months after the Council’s stage two complaint response, the Council has not had opportunity to consider this first.
14. I have not investigated Miss X’s complaint about the content of her child’s EHC Plan, including the Council’s decision not to name specialist provision. This is because the content of a child’s EHC Plan is appealable to the Tribunal as the appropriate body to consider any such complaints. 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.

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How I considered this complaint

15. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
16. Miss X and the Council had an opportunity to comment on my draft decision before I made a final decision.

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What I found

Rules and regulations

Education, Health and Care Plans

17. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. 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. 
18. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
19. 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 cease to maintain 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) 
20. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

Alternative Provision of education

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 Provision of education.
22. 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)
23. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
24. 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 Provision of 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)
25. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
26. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• consider (based on all the evidence) whether to require attendance at school or provide the child with suitable Alternative Provision of education:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

27. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.
28. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when a child is absent for non-medical reasons. Government guidance recommends for medical issues that a council considers its Section 19 duty to provide education where it is clear the absence is for more than 15 school days. When a council arranges Alternative Provision of education on medical grounds, that education should begin as soon as possible, and at the latest by the sixth day of a child’s absence.
29. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

30. In May 2022, the Council issued a Final EHC Plan for Miss X’s child, Y.
31. In March 2023, the Council held an annual review meeting for Y’s EHC Plan. The Council did not send a letter advising if it intended to maintain, amend or cease Y’s EHC Plan following this meeting. Miss X complained to the Council about this in October 2023.
32. Y’s school held an emergency annual review meeting for Y’s EHC Plan in November 2023. Miss X said she considered Y needed a specialist setting. Y’s school sent the annual review paperwork to the Council which highlighted both it and Miss X were waiting on an updated EHC Plan from the last annual review meeting.
33. At the start of 2024, Miss X sought consideration for an Educational Psychologist assessment of Y and a change of placement to a specialist setting. At this time, Y’s attendance for the year was just below 80%. In May 2024, the Council’s Multi Agency Team Discussion declined this request and said Y was engaging in their current setting and provided advice to Y’s school about how it could seek support.
34. In June and July 2024, Miss X contacted the Council to query why it had not finalised Y’s EHC Plan. Miss X reiterated her request for a specialist setting for Y.
35. In November 2024, Y’s school held an annual review meeting for Y’s EHC Plan. Y’s school confirmed Y was on a reduced timetable and Y was struggling with attendance with this at 35% for the academic year. Y’s school confirmed it had put in place online tutoring at home for two hours each week and Y was accessing some 1:1 sessions in school. Y’s school said the current provisions and interventions it was offering for Y were not working and the gap between Y and their peers was widening.
36. Following the annual review meeting, Y’s school discussed Y’s access to education with the Council. Y’s school agreed to put in place extra online sessions but said it needed extra funding and expected Y to attend in person in the long term. The Council’s notes state it advised the school to continue to closely monitor and regularly review Y’s access to education to ensure it was suitable for their needs.
37. Miss X complained to the Council in February 2025. Miss X said:
• The Council had not issued a Final EHC Plan for Y since 2022 despite holding annual reviews.
• Y needs Education, Otherwise Than At School (EOTAS) but ideally wants Y in a school setting and this needs to be a specialist school.
• The Council promised to take extra funding for tutoring sessions to panel but this has not been completed and the Council has not finalised the EHC Plan from the previous annual review.
38. The Council provided a stage one complaint response a week later. The Council said:
• It accepted it had failed to notify Miss X about the outcome of any annual review held since 2022 and apologised for this.
• It acknowledged Miss X contacted it in February 2025 to request a specialist placement because Y’s attendance was below 20%.
• It was in contact with Y’s school to discuss Alternative Provision of education to support Y into education.
• It would take Y’s case to a Multi Agency Team Discussion to request a specialist placement from September 2025.
39. Miss X declined an offer of Alternative Provision of education in February 2025 by the Council and sought consideration of her complaint at stage two in March 2025. The Council also held a further EHC Plan meeting for Y.
40. In April 2025, the Council issued a stage two complaint response and said:
• It maintained its finding of fault about not updating Y’s EHC Plan since 2022 and would look to offer a symbolic payment for the impact of its fault.
• The Multi Agency Team Discussion did not agree to a specialist provision in April 2024. But, the evidence shows a decline in attendance since September 2024 with Y now only attending 20% since the start of the school year.
• Miss X declined the Alternative Provision of education offer it made and only the EHC Plan review process can require a change of placement.
• There was an expectation the Council would monitor part-time timetables once they are aware and decide whether suitable education is available to a child. The Council said it had kept Y’s access to education under review and provided advice to Y’s school.
• It would provide an update to Miss X about the Multi Agency Team Discussion’s decision about a change to specialist provision and an amended final EHC Plan as soon as possible.
41. In April 2025, Y was sectioned under the Mental Health Act and Miss X told the Council. The Council did not consider Y’s access to education while they were sectioned in hospital.
42. In May 2025, the Council offered Miss X £1,500 as a symbolic payment for the anxiety and distress caused to Miss X and frustration and uncertainty caused to Y for the delays in the annual review process. The Council also said Y’s school was still offering a reduced timetable and flexi-schooling for when Y could access this.
43. The Council’s Multi Agency Team Discussion said in June 2025 the Council had no evidence of the level of support provided by Y’s school or what provision was currently in place so it could not agree to a change of placement. This was despite the Council advising the placement at Y’s school had broken down and the school confirming it could not meet Y’s needs.
44. The Council produced an amended final EHC Plan for Y in June 2025 and shared this with Miss X. The Council outlined Miss X’s appeal rights to the SEND Tribunal.
45. In July 2025, the Council completed a review of Y’s education and noted no changes from the previous reviews.
46. The Multi Agency Team Discussion agreed for a placement at a specialist school for Y in August 2025. Within this panel decision the Council confirmed in February 2025 that it decided Y’s school could not meet Y’s needs. The Multi Agency Team Discussion asked the Council to explore maintained options before naming a specified independent school.
47. In September 2025, the Council agreed to three days per week Alternative Provision of education for Y while a full-time educational placement was found. The Council put this provision in place in October 2025 and later increased this to include two days of tutoring.
48. In January 2026, the Council sent an amended Final EHC Plan to Miss X confirming Y’s placement at a specialist independent school.

Analysis

EHC Plan reviews

49. The Council produced the first EHC Plan for Y in May 2022. This meant it needed to complete an annual review meeting and confirm its intention to maintain, amend or cease Y’s EHC Plan by May 2023. Any time taken after this date to complete these actions would be delay outside the statutory timescales and would be fault.
50. As of the start of my investigation time period, in November 2023, the Council had not completed these actions. The Council failed to confirm the outcome of any annual review for Y with Miss X until June 2025. This delay is fault.
51. The Council has already acknowledged this fault in its stage two complaint response and identified the impact this fault has caused to both Miss X and Y. The Council has also apologised to Miss X and paid her £1,500 in recognition of the injustice caused by its fault. I consider this action is proportionate to the injustice caused and do not consider the Council needs to take further action to address this fault.

Provision of education

52. Miss X says Y has missed suitable education since 2023 because of the Council’s fault. In November 2023, Miss X told Y’s school during the annual review meeting that she considered Y needed a specialist setting for Y. However, the annual review meeting notes from the school do not show the school shared this position in November 2023 and Y was still accessing education in school with an attendance rate of about 80%.
53. While Miss X was in contact with the Council in the spring and summer terms of the 2023/2024 academic year to request a specialist placement for Y, Miss X did not raise with the Council that Y was experiencing significant attendance difficulties. Additionally, Y’s school had not identified Y for targeted support meetings or attendance issues with the Council.
54. The Council considered Miss X’s request in May 2024 and considered Y’s attendance at school and the support in place by the school. The Council decided Y could access education at the named school and that her attendance rate was not significant enough to justify intervention. The Council was entitled to make this decision and I do not find fault.
55. From November 2024, Y’s situation changed. Y’s school highlighted to the Council a significant decline in Y’s attendance and the education and provision it was offering was not suitable for Y. Y’s school also started to report Y’s attendance issues with the Council from December 2024 and continued to do this until the end of the academic year. While the Council discussed Y’s access to education with Y’s school in December 2024 and was aware of the part-time timetable and online tutoring on offer, it made no decision about whether this provision was suitable and accessible for Y. The only notes the Council has of advice it gave was for the school to continue to monitor Y’s situation. The failure to provide any meaningful input into Y’s educational provision or consider whether Y’s school was providing suitable and accessible education was fault. This fault caused a lost opportunity for the Council to decide whether it should put in place Alternative Provision of education from November 2024 to February 2025. I consider the Council should apologise to Miss X and provide a payment of £150 for the lost opportunity and uncertainty this fault caused.
56. The Council decided it should provide Alternative Provision of education for Y in February 2025. Miss X declined this Alternative Provision of education because she wanted a full-time placement at a specialist setting. I cannot find fault with the Council not putting in place Alternative Provision of education if this is rejected by a parent. In this instance, I would not find fault with the Council for its actions in February 2025.
57. However, I would expect to see the Council exploring other options with a parent, such as offering other Alternative Provision of education. The Council did not explore any other options with Miss X following her declining the Alternative Provision of education in February 2025. The Council’s notes confirm it knew Y’s school could not meet Y’s needs but did not offer any support or input about how the school could provide suitable and accessible education for Y. The Council was aware that Y was not accessing a suitable education and accepted it needed to provide Alternative Provision of education but did not put this in place from March 2025 until October 2025. This was fault.
58. The Council’s fault caused Y to miss suitable education from March 2025 to October 2025. During this time, Y was also sectioned meaning the Council should have considered provision of hospital education as Y would not have had access to school during some of this time period. Overall, Y missed about one and a half terms worth of education from March 2025 to October 2025 caused by the fault of the Council.
59. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
60. I have considered Y’s individual circumstances, including the impact on both Y’s access to suitable education and wellbeing, and consider the Council should pay Miss X a total of £2,600 as a symbolic payment for Y’s missed education from March 2025 to October 2025.
61. The payments of £150 and £2,600 are for separate fault and injustice compared to the £1,500 payment already made by the Council.

Service improvements

62. The Ombudsman is aware that Surrey Council is currently undergoing a significant transformation programme for its SEND services following previous recommendations from the Ombudsman. The Council has already implemented significant improvements to its adherence to EHC Plan review timescales and rules in 2025 compared to previous years. The ongoing actions by the Council directly cross-over with the issues identified in this case. For this reason, I am not making any service improvements.

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Action

63. Within one month of the Ombudsman’s final decision the Council will:
• Provide an apology to Miss X for the injustice caused by its failure to suitably consider Y’s access to education from November 2024 to February 2025 and for its failure to provide suitable access to education for one and a half terms from March 2025 to October 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 in my findings.
• Provide a symbolic payment to Miss X of £150 for the uncertainty and lost opportunity caused through its failure to consider the suitability of Y’s education from November 2024 to February 2025.
• Provide a symbolic payment to Miss X of £2,600 for Y’s missed educational provision for one and a half terms caused by the Council’s action from March 2025 to October 2025.
64. The Council should provide us with evidence it has complied with the above actions.

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Decision

65. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman