Summary: The Council accepts it delayed issuing an amended final Education, Health and Care Plan for Miss X’s child Y. It also accepts it failed to provide Y with an alternative education and delayed responding to Miss X’s complaint. This caused Y to miss out on an education and Miss X distress and avoidable time and trouble. The Council has agreed to apologise to Miss X, put tutoring in place and making a symbolic payment to Miss X.

The complaint

1. Miss X complained the Council delayed issuing an amended Education, Health and Care (EHC) Plan for her child, Y, following a review of the Plan in March 2024. Miss X says this meant the Council failed to secure the provision in Y’s EHC Plan and they have not received an education. Miss X wants to the Council to issue an EHC Plan which meets Y’s needs with a specialist placement.

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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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. There is a right of appeal to the Tribunal against a council’s 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 their EHC Plan.
8. The Council issued Y’s EHC Plan in January 2025. Miss X appealed the SEN provision and placement in the EHC Plan to the Tribunal. I have not investigated the suitability of Y’s EHC Plan as Miss X has appealed this to the Tribunal.

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How I considered this complaint

9. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance and our guidance on remedies published on our website.
10. Miss X and the Council have had an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

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What I found

Education, Health and Care (EHC) Plans

11. 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. 
12. 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.
13. 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). Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Alternative provision

14. 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.
15. 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).

What happened

16. Miss X’s child, Y, has an EHC Plan and was attending a mainstream school. Y struggled to attend and engage with the school. By March 2024 Y’s school noted their attendance had dropped to 13.5% and they were hardly attending school. An emergency annual review of Y’s EHC Plan took place. At the review the school said it was not an appropriate setting and Miss X wanted an Education other than at School (EOTAS) package to educate Y at home. EOTAS is a form of education where the child receives provision wholly outside of a school setting. It can be made up of several different kinds of provision.
17. In late March 2024 the school emailed the Council direct. It said Y’s complex needs were a barrier to them attending school. It said Y was “a vulnerable child missing from education”.
18. The Council issued Y’s draft amended EHC Plan in June 2024. In response to the draft Plan Miss X reiterated Y’s school was not an appropriate setting. The Council says it became aware Y had stopped attending school at this point.
19. Y’s school chased Y’s amended final EHC Plan in July 2024. On 28 August 2024 Miss X complained to the Council. She said it had delayed issuing an amended EHC Plan following the annual review and delayed her right of appeal to the Tribunal. There is no record of any response from the Council during the remainder of 2024. In November and December 2024 Y’s school repeatedly chased the Council for the EHC Plan.
20. On 14 January 2025 the Council responded to Miss X’s complaint at stage one of its complaint process. It apologised for the delay in issuing Y’s amended final EHC Plan and said it would issue their EHC Plan within the next week.
21. The Council issued Y’s amended EHC Plan on 16 January 2025. It named Y’s existing school as Y’s placement. Y remained out of school. Miss X entered mediation with the Council over Y’s placement.
22. In March 2025 the Council carried out another annual review. At the review it proposed changing Y’s placement to a specialist placement. Miss X completed mediation with the Council in April 2025 and appealed Y’s EHC Plan to the Tribunal on section I and section F. Miss X also asked the Council to consider her complaint at stage two of its complaint process. She reiterated it had delayed issuing Y’s EHC Plan and then named an unsuitable placement.
23. The Council began consulting with specialist settings in June 2025. It consulted with three special schools who all said they could not meet Y’s needs. The Council responded to Miss X’s stage two complaint on 2 June 2025. It accepted it had not completed the EHC process within the statutory timescales. It said its view at the time of issuing the EHC Plan was that Y’s school remained suitable. It apologised for the delay. Miss X remained unhappy and complained to the Ombudsman.
24. In response to our enquiries the Council accepted Y had failed to provide Y with a suitable alternative education for six terms and had caused Miss X distress and time and trouble pursuing her complaint. The Council said it will apologise to Miss X, put home tutoring in place and pay Miss X:
• £11,850 to recognise six terms of missed education for Y.
• £600 to recognise the distress Miss X faced during this time.
• £200 to recognise the further distress and time and trouble Miss X faced pursuing her complaint.
25. The Council also set out the details of an action plan it had established to address its failings. This included a review of its EHC Plan and annual review processes to improve its services within 12-18 months.

My findings

26. The Council accepts it failed to issue Y’s amended EHC Plan within the statutory timescales and failed to provide Y with a suitable alternative education for six terms. It also accepts it failed to respond to Miss X’s complaint within appropriate timescales. This was fault.
27. As a result of the Council’s failings Y missed out on an education causing Miss X distress. The delay responding to Miss X’s complaint also caused her additional distress and avoidable time and trouble. I am satisfied with the Council’s proposed remedy, which is in line with the Ombudsman’s Guidance on Remedies.
28. Because the Council is already taking suitable steps through its action plan, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Action

29. Within one month of the final decision the Council has agreed to complete the remedy it proposed in response to our enquiries. It will:
1. Apologise to Miss X for the impact of its failings. 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. Put home tutoring in place for Y as an interim measure.
3. Pay Miss X:
• £11,850 to recognise the impact of Y missing six terms of education.
• £600 to recognise the distress Miss X faced during this time.
• £200 to recognise the further distress and avoidable time and trouble Miss X faced pursuing her complaint.
30. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman