Summary: Mrs B complains she has been waiting for over three years for a new school placement for her son (X). During that time the Council has not provided him with suitable alternative education and has missed deadlines to review his Education, Health and Care Plan. We uphold the complaint and find X missed education and had an out-of-date Education, Health and Care Plan. The Council has agreed to provide an extra symbolic payment to what it has already paid. And to monitor its progress in finding suitable provision.

The complaint

1. The complainant (Mrs B) complains:
• she has been wating for over three years for a new school placement for her son (X), after his school said it could no longer meet his needs;
• there were considerable delays in revising X’s Education, Health and Care (EHC) Plan, including multiple missed decisions following statutory reviews.
2. Mrs B says the consequences of the faults are:
• X has missed years of education;
• the Council’s Special Educational Needs and Disabilities (SEND) Service have not kept X’s EHC Plan up to date, to reflect the progress he has made. This may affect his chance of finding an educational placement.
3. Mrs B wants X to have:
• a suitable educational placement;
• the speech and language and occupational therapy that he should have had;
• consideration of whether he needs transport when the Council finds a placement;
• compensation for the time he has been without education and therapy and for the trauma he has experienced.

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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. 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)
6. 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)
7. 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.
8. 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)
9. 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

10. Mrs B started to complain to the Council in October 2024, but its responses were delayed, meaning we did not accept a complaint from her until July 2025, after she had completed the Council complaints procedure. And the Council’s complaint responses looked at matters back to September 2023. Given this history, I have used our discretion to look back at matters from September 2023, ending my investigation in July 2025, at the time of Mrs B’s complaint to the Ombudsman.

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How I considered this complaint

11. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
12. Mrs B 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

Legal and administrative background

Education, Health and Care Plans

13. A child or young person with special educational needs may have an 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. 
14. 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.

15. 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. Following the review meeting the council must issue a decision to either 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) 
16. Where the council proposes to amend an EHC Plan, 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. With the revised EHC Plan, a council must advise the parent or young person of their appeal rights.
17. 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)
18. 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.

19. Outside of the annual review process, a council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.

Alternative provision – Section 19 duty

20. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
21. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
22. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.

What happened

23. The following is a summary of key events. It is not intended to be a detailed chronology of everything that happened.

Background

24. X has had an EHC Plan since early 2022. From May 2022 he has not been able to access school due to his anxiety around an everyday activity. He remained on the school’s roll.
25. X had a review of his EHC Plain at the end of January 2023. In a complaint response the Council accepted it did not make a decision following that review.

Events I have investigated

26. The Council says that in February 2024 it emailed the school to remind it that it needed to carry out a review of X’s EHC Plan, as he remained on its roll. The school held the annual review in March. Nobody from the Council’s SEND team attended; it says this was due to staff shortages. In the review, the school said it could not meet X’s increased needs, so the Council needed to find a new placement. In a complaint response the Council accepted it did not make a decision following that review.
27. An August 2024 note on the Council’s system says it:
• was working with the school to try to support X’s return;
• had considered alternative provision, but its view was the responsibility for this was with the school.
28. Mrs B complained. The Council’s response was delayed until February 2025. It apologised for this and offered £150 as a symbolic payment for that delay and Mrs B’s resulting time and trouble. It listed some work it had undertaken to overcome X’s anxiety that was affecting his ability to attend school.
29. The Council’s response to a later complaint says on 28 March it finalised a review of X’s EHC Plan. It named the school until July 2025, when X would be at the end of compulsory school age. The Plan said from September his provision was to be an, as yet to be identified, maintained specialist placement.
30. In May the Council responded at the second stage of its complaints procedure. It found:
• the school had offered X online learning. But it accepted the limits of such learning;
• where a child was on a school’s roll, the school was expected to make best endeavours to make education available with the funds provided to them by the Council. But it was not clear how the school had made best endeavours to make education opportunities available for X while he remained on its roll. That was something the Council would need to discuss with the school;
• it noted mention of a referral to the Council’s Access to Education Service in the school’s annual review report in 2023. But it had not found evidence the school made a referral. It accepted the Council seemed to have relied on the school to make that referral;
• it accepted missed opportunities to explore what other alternative provisions could have been made available, including after January 2024, when X’s anxiety started to improve;
• the Council appears to have seen its role as limited to providing “guidance and support”. But it should have been keeping the provision X was receiving under review, working with the school to increase provision as needed;
• the Council was aware of X’s problems through the involvement of its inclusion service and annual review reports. So it accepted it should have considered if there were any other options available that could have been explored for X. It said this should have happened from, at the latest, around September 2023 when it was clear that interventions from the school were not working.
31. As remedies for the faults it identified, the Council recommended its SEND Service:
• consider a symbolic financial remedy for X and Mrs B to acknowledge the frustration and uncertainty caused by the delays in it reviewing X’s EHC Plan leading to missed education opportunities from September 2023 to April 2025 (six terms), taking into consideration what X did receive;
• consider a symbolic financial remedy for X in recognition of any missed occupational therapy as identified in his EHC Plan;
• hold a meeting with all professionals involved to agree a plan on how best to support X and how it could make appropriate educational provision available to him, until it could find a permanent education setting;
• be reminded of its duties in regard to alternative provision under Section 19 of the Education Act.
32. After the complaint, the Council paid the family a remedy of £9255 for frustration and uncertainty caused by the delays (between September 2023 and April 2025), in the annual review process. And for loss of education and missed occupational therapy.
33. In August the Council held a Child in Need (a multi-agency) meeting, attended by its EHC Plan Coordination Officer. The Council notes the Officer then left the service, leading to a further delay in setting up any alternative provision for X.
34. X’s social worker chased an update from the Council’s SEND team in December 2025 and again in January 2026 asking someone from the service to attend X’s January 2026 Child in Need meeting. The Council says its current EHC Plan Coordination Manager became aware of the case with the social worker’s contact.
35. At the beginning of February the Council’s EHC Plan Coordination Officer met with the family. At that meeting Mrs B asked for a review of X’s EHC Plan. The Council’s decision-making panel refused that request. Instead it decided the Council should put in place a “robust” package of alternative provision, with a report and review after a term, to then review X’s EHC Plan.
36. Mrs B complained to the Ombudsman. In my conversation with her, she advised:
• contrary to what the Council said, the Council did not review the Plan in March 2025 and they did not receive a revised EHC Plan;
• X needed some time to “decompress” after he stopped attending school – maybe a year or so. But since then, he had been in a better position. But he had not received the education he needed;
• X needed a review of his EHC Plan. He was in a much happier place, due to work by him, his family and the Council’s social work team. But his EHC Plan did not reflect that. Mrs B worried that prospective education providers might be put off by what was in X’s out-of-date EHC Plan.
37. In my enquiries to the Council, I asked the Council about the following issues.

Evidence of the disputed March 2025 review

38. The Council sent me:
• a partially completed review form from February 2025;
• a revised EHC Plan dated 28 March 2025;
• evidence from its file that it held a review meeting on 27 March;
• a 28 March letter from the Council’s case officer to Mrs B. This noted what the Council’s decision was about a placement for X. It mentions a final EHC Plan, but has no indication one was sent with the letter. It also does not set out any right of review for a final EHC Plan.

Implementation of the remedies set out in the Council’s May 2025 complaint response

39. The Council did not have evidence that X’s then EHC Plan Coordination Officer met with Mrs B.

Provision in the time after the complaint response

40. The Council acknowledged further delays in making education opportunities available for X after its May 2025 complaint response. So it offered a further symbolic financial remedy to the family and X for the missed education opportunities and provisions from April 2025 until the end of March 2026 (the time of its response to the Ombudsman). It said its offer took account of its opinion that it was unlikely X would have been able to access full-time provision during that time, although without fault it would have monitored that and increased it in time. And, as X was now post 16, his family were supporting him and actively looking at further education settings. It also noted it had identified a possible provider. So it offered symbolic financial remedies of:
• £500 for Mrs B to recognise the frustration these further delays may have caused her;
• £4500 for X in recognition of any missed education opportunities from April 2025 to March 2026 worked out at £1500 per term;
• £255 for X in recognition of 3 x 1 hour missed occupational therapy as identified in his EHC Plan;
• £720 for X in recognition of 8 x 1 hour missed speech and language therapy as identified in his EHC Plan.
41. The Council advised:
• X’s current EHC Plan Coordination Officer was in the process of:
1. making a referral to the Council’s decision-making panel for referral to a named alternative provision provider;
2. issuing a draft amended EHC Plan;
3. following up on consultations, including about any therapies X needed as part of his alternative provision package;
• it had no active consultation with its SEND Placements Team. Its manager said she would be making a referral to them to look at a school placement with the updated EHC Plan.

Was there fault by the Council?

42. The Council allowed the case to drift, on multiple occasions. That was fault. It has accepted that. The key areas of fault were:
• delays in revising X’s EHC Plan;
• not working with the school to seek to ensure X received as much education as he could manage and keeping that under review.
43. I agree with that analysis but would add the delay in revising X’s EHC Plan continued after March 2025 (ie the date the Council says it issued a revised EHC Plan). The evidence the Council sent me leads me to conclude that, more likely than not, the Council did not send Mrs B the revised EHC Plan. I say that as the letter it did send in March does not confirm its officer attached a Plan and it does not set out Mrs B’s review and appeal rights, as it should have done if it was a covering letter for a revised final EHC Plan. It is also inconsistent with the stated review date and the lack of a draft Plan on the Council’s system.

Injustice

44. X has had several years without sufficient education. The Council’s May 2025 complaint response offered a remedy for identified missed education and missed therapies. In response to my enquiries it offered a further remedy.
45. The later response set out analysis of a lessened injustice to X. But my conclusion is X’s injustice worsened the longer he was out of education. Partly this was because, as Mrs B relates, X was in a better place to access education – she says this was after around a year. And the missed education will have likely had a cumulative effect on him. The longer he was without suitable education would likely lead to increased difficulties in reintegrating with his peers, when he had fallen behind with his academic work. So I recommended additional payments as set out below.
46. I also note that in the time this investigation considers, the Council has not reviewed X’s EHC Plan. This gives credence to Mrs B’s concerns that it is now out of date.
47. In response to my draft decision, the Council provided evidenced it did finalise a EHC Plan in May, and has sought alternative providers and consulted further.

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Action

48. I recommended that, within a month of my final decision, the Council should:
• apologise. 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 I have recommended in my findings;
• increase its symbolic payment for the later period to £6000 (£2000 per term) to recognise the likely cumulative impact of its ongoing delays in providing satisfactory educational provision for X.
49. And I recommended that, within a month of my final decision, the Council should
• agree to assign a manager to have, for at least the next six months, monthly oversight of the progress of the case, including reviewing X’s EHC Plan, educational provision at home and the search for a placement;
• report back to Mrs B progress in finding this provision.
50. The Council has agreed to these recommendations. It should provide us with evidence it has complied with the above actions.

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Decision

51. 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