Summary: Ms X complains the Council did not provide suitable alternative provision for her child and delayed issuing the Education Health and Care Plan. Ms X says this caused her child to miss out on education and impacted their emotional wellbeing. We find no fault with the Council’s alternative provision offer. We do find the Council at fault regarding the delay in issuing the Education Health and Care Plan which caused injustice. The Council has agreed to make a payment to Ms X.

The complaint

1. Ms X complains about the Council’s handling of her child, B’s, EHC Plan. Specifically, she complains the Council:

1. did not arrange the needs reassessment she requested;
2. did not provide suitable alternative provision;
3. delayed providing the agreed personal budget; and
4. did not provide her with a finalised copy of B’s EHC Plan.

2. Ms X says this means B has missed out on education and has impacted their emotional wellbeing. She says it also caused her avoidable and unnecessary distress and financial strain and frustrated her right of appeal.

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The Ombudsman’s role and powers

3. 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)
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)

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How I considered this complaint

5. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
7. 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 found

What should have happened

Needs assessment (part a of the complaint)

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 council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
10. The 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.
11. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.

Alternative provision (part b of the complaint)

12. 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 section 19 or alternative education provision.
13. 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)
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
15. 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)

Personal budget (part c of the complaint)

16. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

Education Health and Care Plan review timescale (part d of the complaint)

17. 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) 
18. 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.

What happened

19. B had an EHC Plan. B’s previous Plan was issued November 2023.
20. In July 2024, the Council completed an annual review. Ms X requested another Educational Psychology assessment because she felt B’s needs had changed. She requested to amend the Plan and increase the provision detailed in the Plan. She requested an increased personal budget for the additional provision.
21. In late August, the Council discussed Ms X’s requests at its SEN panel. It agreed to provide B with an increased personal budget including weekly sports lessons and animal therapy. It agreed to begin consulting for suitable alternative provision. It declined Ms X’s request for an Educational Psychology reassessment.
22. In early September, the Council sent out referrals to alternative provision providers. The Council issued a personal budget agreement which told Ms X it would make a payment for the agreed activities within four days. B started weekly sports lessons and animal therapy.
23. In mid-September, the Council received responses from three alternative education providers. Ms X declined each provider and told the Council they did not meet B’s needs.
24. In early October, the Council issued B’s draft EHC Plan.
25. In late October, the Council increased the personal budget to include weekly online mentoring and issued a new agreement. It told Ms X it would make a payment in early November. B began the online mentoring.
26. In early November, the Council reimbursed Ms X for the costs of weekly sports lessons, animal therapy and online she incurred in September and October.
27. In February 2025, the Council agreed to fund a further term of weekly sports lessons, animal therapy and online mentoring via direct payments for B.
28. In March, the Council reimbursed Ms X for the costs of weekly sports lessons, animal therapy and online she incurred in February. The Council completed another annual review and issued B’s finalised EHC Plan. It gave Ms X her right to appeal. Ms X appealed to Tribunal.

Analysis

Needs reassessment (part a of the complaint)

29. The Council told Ms X it decided not to accept her request for a needs assessment because B had been assessed in September 2023, which was less than one year before her request. Statutory guidance says councils can refuse to complete reassessments in cases where it has been over six months since the previous if it decides the child’s needs have not significantly changed. The Council told Ms X it considered B’s needs had not significantly changed; however, it did not write to her with an outcome or show its rationale in its decision-making. This is fault. This fault caused Ms X some avoidable uncertainty.
30. The Council’s decision not to reassess is appealable to Tribunal. The Council did not provide Ms X with her appeal right to Tribunal. This is fault. I consider the injustice caused by this fault to be limited, because Ms X told the Ombudsman she is not pursuing a reassessment.

Alternative provision (part b of the complaint)

31. The Council provided Ms X with three options for alternative provision for B. I am satisfied the Council properly considered the alternative provision offered was suitable for B’s age, ability and aptitude and special educational needs. Ms X declined each provider. I do not find fault with the Council.

Personal budget (part c of the complaint)

32. Ms X complains the Council delayed reimbursing her for the costs of the weekly sports lessons, animal therapy and online mentoring. The Council made the first payment to Ms X in November 2024, which is two months after it said it would do so. This is fault. I consider due to Ms X’s financial position, the injustice caused to her is limited. I consider there to be no injustice to B, because they continued to access provision.
33. The Council made the February payment four days later than it said it would do, and the April payment two weeks later than it said it would do. I do not find these delays significant enough for a finding of fault.

Education Health and Care Plan review timescale (part d of the complaint)

34. Statutory guidance says councils must complete an EHC Plan review within 12 months of the first EHC Plan and within 12 months of any later reviews. The Council should have issued its finalised EHC Plan by November 2024. It issued a finalised EHC Plan in March 2025. This is four months later than the timescale allows, which is fault. This fault caused Ms X unnecessary and avoidable uncertainty and frustrated her appeal right.

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Action

35. Within four weeks of my final decision, the Council will make a payment of £200 to Ms X to remedy the avoidable and unnecessary uncertainty caused by the Council’s handling of her reassessment request and frustrated right of appeal caused by the four-month delay issuing the final EHC Plan. In arriving at this figure, I considered our published guidance on remedies. I consider this amount is appropriate and proportionate to the level of injustice caused.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. 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