Summary: There was fault by the Council. The Council delayed issuing an EHC Plan after an annual review, an injustice which the Council remedied by a symbolic payment before the complaint came to the Ombudsman. The Council also failed ensure a child had transport to an alternative provision which was intended to be made by the provider. The Council failed to consider whether a child could manage more than the part time alternative educational provision made for three terms. A symbolic payment and reimbursing mileage costs remedies the injustice caused to the family.

The complaint

1. The complainant, who I shall call Miss X, complains the Council delayed sending a final EHC Plan after an annual review in March 2024.
2. Miss X says the Council did not provide full time alternative provision from April 2025 until March 2025 and has not provided transport to the alternative provision despite agreeing to fund it. Miss X says Y has missed education and the family have had to fund transport themselves.
3. Miss X also complain the Council has not responded to a request for a personal budget in accordance with its policies.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I have investigated events from March 2024, when the annual review of the EHC Plan was carried out up till February 2025 when the final EHC Plan was sent to Mrs X. Mrs X complained to the Ombudsman in March 2025 and so any matters after this date would be a new complaint for the Council to consider.

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How I considered this complaint

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

Annual Review

10. Y has an EHC Plan. The annual review was carried out on 27 March 2024. The Council said on 26 April 2024 it intended to amend the EHC Plan. The Council said the final EHC Plan should have been shared by 19 June 2024 but was not sent until 27 February 2025. The review recommended a change of placement from Mainstream to Specialist school. Y was no longer attending the mainstream school, but the school were funding alternative provision for 3 days a week.
11. The final plan should have been sent 12 weeks after the annual review meeting. Instead it took 48 weeks, a delay of 36 weeks or 9 months. This was fault and delayed Mrs X’s ability to appeal to the SEND tribunal.
12. The Council has already made a payment to Mrs X of £600 towards the delays in the annual review process. This is in line with the remedies that we would propose and so I do not propose a further financial remedy on this point.

Personal budget

13. Mrs X complains about her request for a Personal Budget for a Laptop, dictaphone and swimming. I have considered the swimming as part of the additional education that could have been offered to make up full time provision and so do not intend to consider this as part of the personal budget, as I have proposed a remedy for this as part of the failure to provide full time education.
14. I have looked at the EHC Plan for March 2024 until March 2025. I cannot see that a laptop or dictaphone is included in the EHC Plan provision so there is no fault on this point.

Transport costs

15. Y attends an alternative educational provision for 3 days a week. This provision is organised by the school, not directly commissioned by the Council.
16. Where a child is receiving education at an alternative placement other than where they are registered, before we can decide if a council has a duty to provide transport, we must consider who commissioned the placement. Section 508B of and Schedule 35 to the Education Act 1996 explicitly requires local authorities to provide transport to alternative provision made pursuant to section 19(1) of the Education Act 1996 where the relevant criteria are met.
17. However, if the evidence shows it was the school that commissioned the placement, then the council will not be under a duty to provide transport to that alternative placement. This is because the council will not have commissioned the placement under its duties under Section 19 of the Education Act 1996. Therefore, it follows the council is not required to provide transport arrangements as the child is neither attending the school at which they were registered, nor a place other than a school by virtue of arrangements made under Section 19.
18. The Council has said, in its response to my enquiries, that its transport team declined Miss X’s travel assistance claim on 20 June 2024 as the costs for transport provided by Provision A were already agreed as part of the provision.
19. The Council has said that a multi-agency decision making meeting held in September 2025 has confirmed that Provision A had offered transport and the Council recognises the importance of continuity in Y’s education.
20. While the Council may not have a legal duty to provide transport, its decision not to pay mileage does not appear to have been properly made. The multi-agency decision making meeting refused Miss X’s request as ‘transport provided by Provision A was agreed’ but Y has never had access to transport. So, the Council intended that Miss X would not have to pay for transport if it was included in the provision and there does not appear to have been any investigation into why the provision has not offered transport. I consider it reasonable for Miss X to expect transport or transport costs to be covered in the circumstances and to remedy the injustice, the Council should reimburse Miss X’s mileage costs for two return journeys per day that Y attended Provision A from March 2024 until the end of February 2025.

Education

21. Y received education for 3 days a week from March 2024 until February 2025. Mrs X complains that this education was not full time.
22. There was a meeting between the Council, the school and Mrs X on 28 March 2024 which agreed that:
• Y would remain on roll at their primary school until the end of year 6.
• The EHC Plan would be updated, with a clear indication that specialist provision was being sought for secondary school.
23. Notes of the Council’s multi-agency decision making meeting show the Council agreed to fund alternative provision at provider A on 22 May 2024. There is no consideration in the report on whether the provision should be anything other than full-time.
24. Notes of the Council’s multi-agency decision making meeting from 19 July 2024 record that the Council agreed to fund a place at a specialist school from September 2024. This would have been a full-time provision but did not have a place for Y by March 2025.
25. In response to my enquiries, the Council has said that ‘it acknowledges that Y’s educational provision between March 2024 and March 2025 was not full time, and that he could have accessed additional support beyond the three days per week at Provision A. The Council made efforts to offer a broader and more tailored educational package’. The Council said ‘while Y’s attendance at provision A was limited to 3 days per week, this was not due to a lack of available provision or unwillingness to offer more. Rather, it reflected his individual capacity to engage and the nature of the provision at that time’.
26. I have noted the Council’s response to my enquires, but the evidence from the multi-agency decision making meeting notes from March 2024 until March 2025 does not support the Council’s statement that it considered whether Y’s alternative provision should be full or part time. I am happy to consider any further evidence from the Council to support this, but if not I consider that it was fault for the Council to provide the funding for alternative provision but not to assess whether or not Y was capable of more than the 3 days offered.
27. Our guidance on remedies says that ‘where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the harm caused by that loss. The figure should be based on the impact on the child and take account of factors such as any educational provision – full time or part time, without some or all of the specified support – that was made during the period’.
28. Given that Y was attending alternative provision 3 days per week and he is only accessing an additional hour of swimming and 4 hours of mentoring currently, it is uncertain if Y would have managed full time provision. But I do consider the Council should have considered whether additional provision was possible earlier during the multi-agency decision making meetings. March 2024 to March 2025 is three terms. I consider a remedy at the low end of the remedy guidance is appropriate given that Y is not accessing full time provision at present. So, I propose the Council makes a symbolic payment of two-fifths of £900 per term, for three terms, which is £1080. The symbolic payment is intended to remedy injustice caused to the child from missing provision, as well as the normal range of consequential injustice also caused to the family due to this fault, for example; where there is significant additional caring responsibilities that occur from a child being out of education, and avoidable disruption to daily routine.
29. I have not made service improvement remedies, as the Council developed an action plan in January 2025 to improve and develop its service. So, the faults Miss X complains about will be addressed as part of that plan.

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Action

30. Within one month of the date of the decision on this complaint the Council should:
• Pay Miss X £1080.
• Reimburse Miss X’s mileage costs at a rate of 45 pence per mile for two return journeys per day that Y attended Provision A from March 2024 until the end of February 2025.
31. The Council should provide us with evidence it has complied with the above actions.

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Decision

32. I have completed my investigation and I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman