Summary: The Council was at fault for failing to ensure two annual reviews of Y’s Education, Health and Care (EHC) Plan were carried out within statutory timescales. The Council was also at fault for failing to provide Y with a suitable education when they stopped attending school due to illness. The Council has agreed to apologise and make a symbolic payment to remedy the injustice caused.

The complaint

1. Mrs X complained of the Council’s handling of their child Y’s EHC Plan. Mrs X complained the Council failed to:
• Provide Y with a suitable education when they stopped attending school due to illness; and
• Ensure two annual reviews of Y’s EHC Plan were carried out within statutory timescales.

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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 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

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). Some of Miss X’s complaint is late as she says the Council failed to provide Y with a suitable education from September 2023 but she did not come to us until April 2025.
6. Mrs X’s complaint about matters between September 2023 and March 2024 is late. It was reasonable for Mrs X to complain to us earlier and there is no good reason to investigate those matters now. We have investigated matters between April 2024 and September 2025, when the Council issued the final amended EHC Plan.

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How I considered this complaint

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

9. 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.
10. 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. 
11. 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).

Annual review

12. 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 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) 
13. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
14. 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.
15. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Alternative provision

16. 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.
17. 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)
18. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
19. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

20. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

21. Mrs X has a child Y who has special educational needs and multiple chronic health conditions. Y requires medical intervention and specialist equipment to be able to attend school. Y has an EHC Plan in place which states they are entitled to the following section F provision:
• Y will have full-time 1:1 support in the setting who is trained and understands her health needs as well as their physical, sensory and social needs;
• Use of fatigue management strategies;
• Staff will do fine motor tasks with Y;
• Staff will work with an occupational therapist (OT) to provide Y with appropriate sensory activities which develop her physical skills;
• An OT will conduct one to three visits a year to help staff identify and understand Y’s physical and general sensory needs and how to regulate physical and sensory input;
• Physiotherapist to review Y’s clinical need four times a year minimum;
• Physiotherapist to provide advice and support to parents and school on implementing a daily therapy programme;
• School staff to complete physiotherapy exercise daily when Y is in good health;
• Y will have sessions with an ELSA;
• Use of social games such as Lego intervention;
• Y will be supported to develop her core and head strength by completing her physiotherapy programme on a daily basis up to 30 minutes a day; and
• Y will access interventions such as Circle of Friends to help Y form friendships and give Y’s peers an understanding of her physical needs.
22. In September 2023, Y was enrolled at a mainstream primary school but rarely attended due to her medical needs. The Council accepted it had a section 19 duty and put in place alternative provision for Y prior to the starting point of our investigation. This consisted of specialist equipment so Y could access teaching from home.
23. In February 2024, the Council held an annual review meeting for Y’s EHC Plan. The meeting record notes that Y was attending school twice a week for 1.5 hours and the specialist equipment is working well for Y to access school from home the rest of the week. There are no records to show the Council issued its decision to amend, maintain or discontinue the EHC Plan following the meeting.
24. By September 2024, Y had stopped engaging with the specialist equipment. After this, Mrs X got a home tutor to teach Y. The tutor was doing this for free. The tutor received no funds from the Council or the school as they were not Ofsted registered. There are no records to show how the Council considered this to be suitable, how many hours this was for and what lessons they were teaching Y.
25. There is a record from September 2024 that said the school could not manage Y’s severe, complex medical needs. It said Mrs X had to sit in the school car park so the school could call her in when they needed medical assistance. This is again reiterated in a record from January 2025.
26. In December 2024, Mrs X raised a stage one complaint about receiving no decision letter following the February 2024 annual review. The Council upheld the complaint the same month.
27. Mrs X escalated her complaint to stage two. She said as a result of not receiving the decision letter, she had no right of appeal. Mrs X also said Y had not received her section F provision and they have been left at home to do online work without any alternative being offered.
28. The Council issued a stage two complaint response partially upholding the complaint. The Council said it continued to consult with education providers, but the providers said they could not meet Y’s needs. It said it could not issue an amended final EHC Plan until it received the outcome of the remaining consultations. The Council also said it was the responsibility of the school to arrange alternative provision.
29. The Council held a further annual review meeting in January 2025. Following this, it decided to amend Y’s EHC Plan.
30. The Council issued a draft EHC Plan in March 2025. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us the following month.
31. In September 2025, the Council issued a final amended EHC Plan. If Mrs X is dissatisfied with the contents of the Plan or the school placement named, it is reasonable for her to appeal to the SEND tribunal.

The Council’s response to our enquiries

32. The Council said it accepts that due to increased demand, this has impacted the ability to manage casework effectively particularly in relation to annual reviews. It said it has a plan in place to increase the workforce with additional SEND keyworkers to ensure work following the annual review is completed within the 12-week statutory timeframe.
33. The Council has not been able to provide evidence of how it considered its section 19 duty when Y disengaged with the alternative provision. The Council has also not been able to provide evidence of the section F provision Y has received or any attempts to implement this outside of school.

My findings

Annual review

34. In February 2024, the Council held an annual review meeting for Y’s EHC Plan. Within four weeks of this meeting, the Council should have decided to amend, maintain or discontinue the EHC Plan and sent Mrs X notice of this. The Council failed to do this which was fault. This caused Mrs X distress, frustration and uncertainty and it frustrated her appeal rights.
35. In January 2025, the Council held another annual review meeting and decided to amend Y’s EHC Plan. The Council should have issued a final amended EHC Plan within 12 weeks of this meeting and by April 2025 at the latest. The Council failed to issue this until September 2025 which was five months outside of statutory timescales and fault. This caused Mrs X distress, frustration and uncertainty and it significantly delayed her appeal rights.
36. We have found fault with the Council on a similar case. Following this case, the Council created an action plan to work on delays in the annual review process and ensure these are completed within statutory timescales. Therefore, a further service improvement is not required.

Alternative provision

37. After Y stopped attending school due to illness, the Council decided it owed Y a section 19 duty and put in place alternative provision in the form of specialist equipment for Y to access learning online. This worked well until September 2024 at which point Y stopped engaging.
38. We would expect the Council to have reviewed its section 19 duty at this point and considered whether to put further alternative provision in place to replace the specialist equipment. The Council failed to do this which was fault.
39. A tutor then volunteered to teach Y at home for free which the Council was aware of. The tutor received no funding from the Council or school as they were not Ofsted registered. We would expect the Council to consider whether this amounted to a suitable education regarding content and duration. The Council failed to do this which was fault.
40. This has caused Mrs X distress, frustration and uncertainty about whether the Council could have offered Y further alternative provision between September 2024 and July 2025.

Special educational provision

41. Y also has an EHC Plan in place and the Council has an absolute, non-delegable duty to secure the special educational provision set out in the Plan. As Y was unable to attend the school named in the EHC Plan, the Council should have considered how to make the provision specified in section F away from the school. There are no records to show the Council did this. Therefore, on a balance of probabilities, the Council failed to ensure Y received the provision set out in their EHC Plan which was fault. As a result, Y has missed out on most of the provision between April 2024-July 2025.
42. Had the Council put in place further alternative provision after September 2024 and the special educational provision they were entitled to in their plan, it is unlikely, on balance that Y would have engaged with this fully due to their medical needs. I have taken this into account when recommending a payment for the lost provision.
43. We found fault with the Council on similar cases in relation alternative provision and special educational provision. Following these cases, the Council agreed to issue updated guidance to staff in relation to the Council’s statutory duties under S19 of the Education Act 1996 and S42 of the Children and Families Act 2014. Therefore a further service improvement is not required.

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Action

44. Within one month of the final decision, the Council has agreed to:
1. Apologise to Mrs X for the injustice caused by the Council’s failure to review its section 19 duty, provide Y with the specialist provision out of their Plan and carry out annual reviews within statutory timescales. 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 I have recommended.
2. Pay Mrs X £300 for the distress, frustration and uncertainty caused by its failure to review its section 19 duty and carry out the annual reviews of Y’s EHC Plan within statutory timescales.
3. Pay Mrs X £3600 to recognise Y’s lost provision between April 2024 and July 2025
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. 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