Summary: Mrs X complains the Council delayed issuing her child’s EHC Plan and failed to provide suitable education for her child. She says this impacted her child’s education and emotional wellbeing and caused her avoidable uncertainty. We find fault with the Council which caused injustice. The Council has agreed to apologise to Mrs X and her child.

The complaint

1. Mrs X complains about the Council’s handling of her child, Y’s, Education Health and Care (EHC) Plan. Specifically, she complains the Council:

1. delayed finalising Y’s EHC Plan following an annual review;
2. did not provide suitable educational provision for Y;
3. named an inappropriate school in section I of Y’s EHC Plan; and
4. communicated with her poorly.

2. Mrs X said the matter caused her distress, uncertainty and frustration. Mrs X said the matter affected Y’s education and emotional wellbeing.

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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 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.

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What I have and have not investigated

9. Mrs X complained to the Ombudsman in April 2025. As I have said above, we cannot investigate late complaints unless there are good reasons. I consider Mrs X could have complained sooner, and there is no good reason to exercise discretion. I will therefore consider all matters from April 2024.
10. As I have said above, we also cannot investigate matters which could be considered by the Tribunal. Mrs X received her right to appeal in February 2025. She used her appeal right shortly afterwards. I have therefore ended my investigation in February 2025.
11. The placement named in an EHC Plan is appealable to the Tribunal. As stated above, we cannot investigate matters which are appealable to the Tribunal. For this reason, I have not investigated part c of the complaint.
12. I have investigated parts a, b and d of the complaint from April 2024 until February 2025.

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How I considered this complaint

13. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
14. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
15. 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

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

16. 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. 
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.

Suitable provision (part b of the complaint)

19. 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)  
20. 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.

21. 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.
22. 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)
23. 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.
24. Councils have a power, but not a duty, to provide support for example funding or therapy at home for children with SEN who are EHE. The SEN Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.

Communication (part d of the complaint)

25. Our published guidance ‘Principles of Good Administrative Practice’ says organisations should inform people who use services what they can expect and what the organisation expects of them. It says organisations should be open and clear about policies and procedures and ensuring information, and any advice provided, is clear, accurate and complete. It says organisations should take reasonable, timely decisions, based on all relevant considerations.

What happened

26. Y had an EHC Plan. The EHC Plan named a mainstream school for Y and the provision detailed strategies for the school to meet Y’s needs. The Plan was due for review by February 2024.
27. Prior to April 2024, the Council completed an EHC Plan annual review meeting. Mrs X requested the Council named a specialist school for Y because they had difficulty attending the mainstream school. The Council told Mrs X it had consulted with her requested specialist school. It also sought information regarding the cost of a bespoke package for Y at their mainstream school. Y stopped attending school completely.
28. In April 2024, Y remained on roll at the mainstream school.
29. In May, the Council told Mrs X it had not consulted with the specialist school and asked Mrs X for information regarding the bespoke package. Mrs X told the Council there was no update and Y was not accessing education.
30. In August, Mrs X asked for an update. The Council told Mrs X the named school offered a part time timetable for Y from September 2024 at a specialist SEN facility. The timetable offered 10 hours of English and maths tutoring per week. It said the aim of the part time timetable was to reintegrate Y into education and would increase to full time once they were settled. Mrs X declined this provision.
31. In September, Mrs X decided to home educate Y and deregistered them from school.
32. In November, Mrs X contacted the Council requesting an update. The Council called Mrs X who asked the Council to send the information by email. The Council did not do so.
33. In December, Mrs X contacted the Council and again asked for the information. The Council told Mrs X it was consulting with the specialist school she preferred.
34. In January 2025, the Council told Mrs X her preferred specialist school said they were unable to meet Y’s needs.
35. In February, the Council issued B’s EHC Plan and provided Mrs X with her right to appeal.

Analysis

Education Health and Care Plan delay (part a of the complaint)

36. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council should have provided a finalised copy of Y’s EHC Plan prior to April 2024. It issued the Plan after it issued the right to appeal in February 2025. This is a delay of more than ten months. This delay is fault which caused Mrs X injustice because it frustrated her right to appeal, which I am satisfied she would have used if she had the opportunity.
37. I do not consider the delay in issuing the EHC Plan resulted in a loss of educational provision for Y. This is because once the Council issued the finalised Plan, Mrs X used her right to appeal its contents and the educational provision it named. Therefore, I consider on a balance of probabilities, if the Council had issued the finalised Plan without delay it is likely Y would not have engaged with the provision it detailed.
38. The Council recently took service improvement action to address its EHC Plan delays as agreed with the Ombudsman in relation to another case. For this reason, I do not consider a further service improvement remedy is proportionate.

Suitable provision (part b of the complaint)

39. I am satisfied the Council was aware Y was not accessing education after April 2024. There is no evidence the Council properly considered its section 19 duty. This is fault. I consider the fault caused unnecessary uncertainty and frustration to Mrs X and Y. I do not consider the fault caused lost provision. This is because when offered, Mrs X did not consider the part time timetable at a specialist facility to be suitable for Y. Therefore, I consider on a balance of probabilities it is unlikely Mrs X would have considered other alternative provision suitable. For this reason, I consider it was also unlikely Y would have accessed other offered alternative provision, and so on balance, I consider the fault did not cause lost provision.
40. Mrs X made an informed decision to home educate Y from September 2024 until after February 2025. Therefore, Mrs X was responsible for providing Y’s education and ensuring Y received the provision set out in their EHC Plan between September 2024 and the end of the scope of my investigation.
41. The Council recently took service improvement action to ensure all staff are aware of the Council’s section 19 duties to ensure children receive a suitable education if they cannot attend school. This action was agreed with the Ombudsman in relation to another case. For this reason, I do not consider a further service improvement remedy to be proportionate.

Communication (part d of the complaint)

42. The documents show there was no communication between June and July 2024, however there is no evidence Mrs X contacted the Council during that time. The Council responded to Mrs X’s queries in a timely manner and provided her regular updates during the consultation process. I find no fault with the Council.

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Action

43. Within four weeks of my final decision statement, the Council will make a written apology to Mrs X for its significant delay in issuing Y’s EHC Plan which frustrated her right to appeal to Tribunal, and for the unnecessary frustration and uncertainty caused to Mrs X and Y by not properly considering its section 19 duty.
44. The Council should provide us with evidence it has complied with the above actions.
45. 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.

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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