Summary: Miss X complained the Council failed to help her child, Y, return to school and delayed issuing Y’s Education Health and Care (EHC) Plan after the annual review. She also complained communication from the Council was poor. Miss X says this distressed her and Y, and Y missed education. The Council was at fault. It did not provide education for Y and delayed issuing Y’s EHC Plan. The Council has agreed to apologise and make a financial payment.

The complaint

1. Miss X complained the Council failed to help Y return to school and delayed issuing Y’s EHC Plan after the annual review. She also complained communication from the Council was poor. Miss X says this distressed her and Y, and Y missed education.

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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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How I considered this complaint

5. I read Miss X’s complaint and spoke to her about it on the phone.
6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. Miss X and the Council had an opportunity to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

Background Information

8. 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. 
9. 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 
10. 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) 
11. 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.
12. 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;
• amendment to these elements of an EHC Plan; and
• decision not to amend an EHC Plan following a review or reassessment.
13. 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. 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. 
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)
16. 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)
17. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

What happened

18. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
19. Y has complex additional needs and has an EHC Plan. The Council issued Y’s EHC Plan in July 2023. Section I named a school for Y to attend. Following an incident, Miss X started electively home educating Y.
20. The Council carried out the annual review of Y’s EHC Plan in September 2024. The review recorded Y was being electively home educated.
21. In October 2024 Miss X told the Council Y wanted to return to school. A week later the Council said it would consider the request in Y’s annual review. Miss X then told the Council Y wanted to return to Y’s former school, but she would continue to home educate if this was not possible.
22. In November 2024 the Council told Miss X it agreed to amend Y’s EHC Plan following the annual review.
23. In December 2024 Miss X asked the Council for an update on Y returning to school. The Council told Miss X it would prioritise the case and start consulting schools. Two weeks later Miss X asked the Council for another update and said Y did not feel able to do exams in home education. The Council did not reply.
24. In January 2025 Miss X complained the Council had delayed responding to her request for Y to return to school. Miss X said the Council’s lack of support forced her to home educate Y. Three weeks later the Council upheld Miss X’s complaint. The Council said it could not find Miss X’s previous correspondence and staff shortages had caused it to miss some correspondence. The Council said there had been delays in amending Y’s EHC Plan following the annual review and it would complete the amendments by the end of January 2025.
25. Miss X was not satisfied with the Council’s response. She asked the Council to escalate the complaint to stage two in February 2025. Miss X stated her complaint was about the Council not helping Y to return to school.
26. Later in February 2025, the Council told Miss X it intended to uphold her complaint because she had been waiting too long for Y’s amended draft EHC Plan. Miss X replied saying her complaint was about the Council not consulting schools and not helping Y back into education.
27. The Council sent Y’s draft amended EHC Plan to Miss X a day later. The Council started consulting with schools.
28. The Council issued its stage two complaint response at the end of February 2025. The Council apologised for the delay issuing Y’s draft amended EHC Plan and offered Miss X a symbolic remedy of £50 for the inconvenience caused.
29. Miss X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Miss X said she wanted the Council to support Y back to a school setting.
30. In response to my enquiries, the Council accepted it delayed issuing Y’s EHC Plan, failed to provide education for Y from October 2024, failed to address all of Miss X’s complaint and did not have case records. The Council said it had acted to ensure staff record actions.
31. The Council issued Y’s final amended EHC Plan in July 2025

My findings

EHC Plan

32. Paragraphs 10 to 12 set out the timescales for the Council to complete an EHC Plan annual review. The Council must issue its notice of amendment within 4 weeks of the annual review meeting. The meeting was in September 2024. The Council should have issued Y’s notice of amendment by October 2024. The Council did not issue it until February 2025. This delay is fault.
33. The Council must issue a final amended EHC Plan within eight weeks of the notice of amendment and within 12 weeks of the annual review meeting. Y’s annual review was in September 2024. The Council should have issued Y’s final amended EHC Plan by December 2024. The Council did not issue it until July 2025, a delay of 31 weeks. This is fault. This delayed Miss X’s right of appeal to the Tribunal against the final amended plan.

Education Provision

34. Paragraph 13 says the Council has a duty to ensure a child or young person receives the special educational provision in their EHC Plan under Section 42 of the Children and Families Act. The Council knew Y wanted to return to school in October 2024. It also knew Miss X was no longer electively home educating Y because she told the Council she wanted Y to return to school. The Council should have ensured Y was receiving the special education provision in the EHC plan. The Council did not do this. This is fault. Y missed EHC Plan provision.
35. Paragraph 14 says the Council must arrange suitable education for children who are out of school. As stated in paragraph 34, the Council knew in October 2024 Miss X was no longer electively home educating Y. The Council should have completed an assessment to decide if it needed to provide alternative education provision for Y. The Council did not consider if a section 19 duty applied when it became aware Miss X was no longer providing Y with an education. This is fault.
36. The Council fault meant Y missed education and EHC Plan provision from October 2024. When the Council issued Y’s final EHC Plan in July 2025, this gave Miss X an appeal right. Miss X had no means of challenging the provision or placement if she disagreed with it until the Plan was issued. This caused further frustration. Y missed education and EHC Plan provision from October 2024 until July 2025, three academic terms. I have recommended a payment of £3000 in line with our guidance on remedies for injustice caused by missed education provision. This recommendation reflects that Y was due to start year 11 in September 2025 and the missed education and EHC plan provision impacted on Y’s preparation for year 11.
37. I would usually make service improvement recommendations in a case such as this, but I can see we have made that type of recommendations in recent cases. . We are actively monitoring the Council has fully complied with these recommendations.

Complaint handling

38. Miss X complained in January 2025 and February 2025. Both complaints said the Council had taken no action to support Y back to school. The Council’s responses focussed on the delays in Y’s EHC Plan. The Council did not address Miss X’s complaint about not helping Y return to school and Y missing EHC Plan provision. This is fault. This frustrated Miss X.

Communication

39. I have seen evidence of communications between the Council and Miss X. However, the Council has not provided copies and admitted it did not keep proper records. The Ombudsman expects a Council to keep accurate records of its actions. It has not done this. This is fault. The Council has provided evidence it has taken action to ensure proper records are now kept.

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Action

40. To remedy the outstanding injustice caused to Miss X and Y by the faults I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:

• Apologise to Miss X for failing to provide suitable education and EHC Plan provision for Y and failing to fully respond to complaints. We publish guidance on remedies which sets out our expectations to remedy injustice. The organisation should consider this guidance in making the apology.
• Pay £3,000 to Miss X for not providing education and EHC Plan provision for Y for three academic terms. This money should be used for Y’s benefit.

41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. I have completed my investigation. I have found fault by the Council, which caused injustice to Miss X and Y.

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Investigator's decision on behalf of the Ombudsman