Summary: The Council was at fault for failing to properly consider if it needed to arrange alternative education for Mrs X’s child, W, when they stopped going to school. It also failed to review and amend W’s Education, Health and Care Plan within statutory timescales. The faults caused Mrs X avoidable frustration, uncertainty and distress for which the Council will apologise and make a symbolic payment.

The complaint

1. Mrs X complained the Council failed to give her child, W, a suitable education for many years, after W was unable to attend school due to health reasons. Mrs X also complained the Council delayed reviewing and amending W’s Education, Health and Care Plan.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. 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)
5. 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

6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months from first having notice of something to complain to us about what a council has done. “First having notice” is the wording used in our legislation. It means the point in time when we decide the person should have known enough to complain. (Local Government Act 1974, sections 26B and 34D, as amended)
7. Mrs X’s complaint related to matters dating back to 2022. However, she did not complain to the Ombudsman until April 2025. That means the events between 2022 and April 2024 are late. I have seen no good reason why Mrs X could not have complained to us sooner, so I cannot investigate the late period.
8. 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)
9. The Council issued its stage two response to Mrs X’s complaint in January 2025 but I have chosen to investigate up to July 2025, taking into account that the Council issued a further response to Mrs X’s complaint about W’s education around June 2025, and to encompass the end of the school year

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How I considered this complaint

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

Relevant law and guidance

EHC Plans

12. 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.
13. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and/or type of educational placement.

14. 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)  
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. This is often organised by the child or young person’s school. The process is only complete when the council issues its decision to amend, maintain or discontinue 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. This means that councils must issue a final amended Plan within 12 weeks of the annual review meeting.
17. Parents and young people can appeal certain decisions made by councils, related to EHC Plans to the SEND Tribunal. This includes:
• The special educational provision in the Plan; and
• The school or placement named in section I of the Plan, or that no school or other placement is specified in that section;
18. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
19. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
20. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
21. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

Alternative provision

22. 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. (Education Act 1996, section 19). We refer to this as alternative provision.
23. 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)
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 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

25. W began having trouble attending their mainstream school in 2022. The Council issued W’s first EHC Plan in May 2024 and a further Plan in June 2024. The Plans named W’s current school. The provision in the Plan included that staff should use a toolkit for children with emotionally based school avoidance as part of the school’s reintegration plan, to support W into attending school at least 75% of the time.
26. Mrs X did not appeal the Plans to the SEND Tribunal because the school had said it would take action to help W reintegrate, which she hoped would be successful.
27. In late July, Mrs X told the Council W was not receiving a suitable education. The Council told Mrs X to request changes to W’s EHC Plan through the annual review process. Mrs X asked the school to hold an early annual review.
28. Mrs X complained to the Council about W’s education in September 2024. In response to her complaint, the Council said the school had confirmed it could meet W’s needs. It said that, as a result, it was satisfied the school was an appropriate educational placement.
29. In late October 2024, W’s school held an early annual review meeting on the Council’s behalf. The meeting heard the school’s efforts to support W had not worked and the school felt the Council should consider whether mainstream education was suitable for W. The school noted that it would continue to try and reintegrate W into class through a reduced timetable or online education, while the Council considered the annual review.
30. Mrs X asked the Council to consider her complaint at stage two in late November. She said she was unhappy W still did not have alternative provision and that the Council had delayed completing the annual review.
31. In early January 2025, the Council issued its decision following the October 2024 annual review meeting. It said it had decided to amend W’s EHC Plan.
32. The Council responded to Mrs X’s stage two complaint to say:
• W had an education on offer from the school;
• It was aware the Child and Adolescent Mental Health Service (CAMHS) had said W could not attend school. The Council said “where a pupil of compulsory school age is deemed medically unfit to attend school, the duty to provide education is suspended until the pupil is deemed well enough to re-engage with education”. It said if W was now well enough to engage with education, Mrs X should tell their school; and
• It accepted it had not sent its decision following the annual review meeting within the four-week deadline.
33. The Council considered if it should name a specialist school in W’s EHC Plan in late March. It decided W’s school should provide a reintegration programme for W alongside some off-site provision which was to be organised by the school. It said it would review that decision if it failed to work.
34. In July 2025, the Council asked W’s school whether the reintegration programme had worked. The school said W had been able to attend alternative provision two days a week, but it had not been able to reintegrate W.
35. The Council issued W’s draft amended EHC Plan in October 2025.
36. In response to my enquiries, the Council said:
• It accepted it had no evidence to show how the Council monitored whether the school’s attempts at reintegration had been properly implemented or whether they were successful;
• The fact the school had said W needed a different school setting during the October annual review meeting indicated the reintegration plan had not worked;
• It accepted the statement set out in paragraph 32 was incorrect. The Council said it recognised it must assess the individual circumstances of the child or young person in question and ensure they had access to appropriate education, suitable for their needs;
• It recognised it had taken too long to review and amend W’s EHC Plan. It said the delay happened because of staffing challenges and the fact the Council needed to consider new information it received on W’s needs after the annual review meeting.

The Council’s efforts to improve its service

37. In December 2024, the Council received an improvement notice from the government which required it to make significant improvements to services for children with SEND. The Council has created a ‘Priority Plan’ which sets out what it will do to improve its performance, including:
• The time it takes to carry out annual reviews;
• The oversight it has over annual reviews and EHC Plan amendments; and
• Its staffing issues.
38. In response to recent investigations by the Ombudsman, the Council told us it had:
• Agreed to carry out training for staff on its alternative provision duty;
• Recruited more case officers;
• Arranged for a scrutiny committee to consider the Council’s performance in relation to children and young people with special educational needs;
• Reviewed its systems for monitoring cases where a child is not attending school full-time; and
• Reminded officers of the need to keep suitable records of how it decided whether the Council owed a child or young person the duty to arrange alternative provision.

Findings

Alternative provision and special educational provision

39. I could not normally investigate Mrs X’s complaint about W’s education. The reason for this is set out in paragraphs 18-21. However, in this case Mrs X chose not to appeal because she was hopeful the school’s reintegration plan would be sufficient to reintegrate them back into class. Given that, it was not reasonable for Mrs X to appeal, which means I can investigate whether the Council should have arranged alternative provision for W, thereby securing the special educational provision in their EHC Plan.
40. The May and June 2024 EHC Plans named W’s school. This indicates the Council had decided the school was suitable for W at that time. However, the EHC Plan also noted W was on a reintegration plan to help them return to the school. The Council should have kept that plan and the wider circumstances of W’s education and reasons for not attending under review, to ensure it identified if and when it needed to arrange alternative provision for them. The Council accepts it failed to do that, which I agree was fault. I say this because:
• When Mrs X raised concerns in July 2024, the Council told her to ask the school for an early annual review. It explained that was the way to ask for changes to W’s EHC Plan. However, while an annual review was the appropriate way to ask the Council to consider if the school could meet W’s needs overall, the Council still needed to consider, in the meantime, if the school remained available and accessible to W;
• There is no evidence the Council considered whether the school was available and accessible to W when it received Mrs X’s complaint or the CAMHS advice it saw at around the same time. Instead, the Council focused on whether the school could meet W’s needs overall. The Council should have also considered if it should arrange for alternative provision until W was able to reintegrate back into class;
• Similarly, the Council failed to consider if it needed to arrange alternative provision for W when the annual review meeting minutes indicated the school’s reintegration plan had failed;
• The March 2025 panel decided the school should again try to reintegrate W. Given the reintegration plan the school had already put in place had not worked, the panel should have considered if reintegration was still feasible, and therefore, if the school was available and accessible to W. There is no evidence the Council did this; and
• The Council then failed to take any substantive action, including checking what provision the school had arranged off-site until July 2025, when it asked the school if reintegration had worked.
41. I cannot say, even on balance, that had the Council not been at fault it would have agreed it owed W the duty to arrange alternative provision. Therefore, the injustice is distress and uncertainty for Mrs X over what could have happened.
42. In addition, the Council accepts its stage two response contained inaccurate information about the Council’s duty to arrange alternative provision for children and young people in certain circumstances. This was fault and caused Mrs X further avoidable frustration and uncertainty.

Annual review and EHC Plan amendment

43. The Council recognises it took six weeks too long issue its decision to amend W’s EHC Plan, thereby finishing W’s annual review. The Council should have then issued W’s amended EHC Plan 12 weeks after the review meeting. This was by mid-January 2025. By the end of the period I have investigated, July 2025, the Council had not issued the Plan. This significant delay was fault. It caused Mrs X frustration and prevented her from being able to appeal the content of the EHC Plan to the SEND Tribunal, if she wanted to.

The Council’s services

44. As set out in paragraphs 37 and 38, the Council is taking and has taken steps to improve its services to children and young people out of education and who have special educational needs. Those steps are appropriate, so I have not made further recommendations to prevent the faults identified in this decision occurring again.

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Action

45. Within one month of the date of my final decision, the Council will take the following steps.
1. Apologise to Mrs X for the frustration she felt as a result of the Council’s failure to review and amend W’s EHC Plan within timescale and for the upset and uncertainty she felt because of the Council’s failure to properly consider if W needed alternative provision. 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.
2. Pay Mrs X £700 to recognise that injustice.
3. Issue W’s amended EHC Plan if it has not already done so. The Council should include information on Mrs X’s right to appeal the content of the Plan to the SEND Tribunal.
4. If the Council has not yet issued W’s EHC Plan, it will consider if it owes W the duty to arrange alternative provision. The Council should keep clear records of its decision-making and inform Mrs X of its decision.
46. The Council will provide us with evidence it has complied with the above actions.

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Decision

47. I find fault causing injustice. The Council has agreed actions to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman