Summary: The Council was at fault for not putting in place suitable education when a child was out of school and for delaying carrying out and annual review of a child’s Education, Health and Care Plan. This meant the child did not receive the education they should have and the complainant had to wait longer than they should have to challenge the content of their child’s Education, Health and Care Plan. To remedy the injustice caused the Council agreed to apologise and make a payment to recognise the loss of education to the child.

The complaint

1. Mrs X complains the Council did not put in place suitable education for her child when they stopped attending school and delayed carrying out the annual review of their Education, Health and Care Plan.
2. Mrs X said her child missed out on education and this has impacted their learning and mental health.

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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. 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.
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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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What I have and have not investigated

7. I have investigated matters up until April 2025. This was the conclusion of the complaints process and when the Council put in place education for Mrs X’s child. If Mrs X has concerns about matters since April 2025, she should raise these as a formal complaint to the Council in the first instance.
8. I have not investigated Mrs X’s concerns about the content of her child’s Education, Health and Care Plan or about the annual review process. The Council has issued a final Plan following the review and if Mrs has concerns with the content of this due to the process the Council followed she can appeal to the SEND Tribunal.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
11. 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

Law and guidance

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. 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. 
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. 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)  
14. 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) 
15. 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.
16. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
17. 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)
18. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
19. 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))
20. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
21. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

22. Mrs X’s child Y has special educational needs. In January 2024, the Council issued a final EHC Plan for Y.
23. In September 2024, Y started attending secondary school. Y only attended for a few days and stopped attending altogether in September 2024. Mrs X contacted the Council at this time to tell it Y was not attending school. Mrs X also asked the Council to hold an early annual review of Y’s EHC Plan.
24. Y’s school attempted to put in place alternatives to help try to reintegrate Y back into school, however Y was unable to engage as the support was all provided at school.
25. The Council held an annual review meeting of Y’s EHC Plan in late February 2025. Mrs X said the Council did not discuss Y’s EHC Plan properly at the meeting and was unhappy professionals reports were not provided to the attendees before the meeting. Mrs X also said Y’s school did not ask for up to date information from the family and professionals involved with Y.
26. In mid-March 2025, the Council agreed to fund weekly tutoring sessions for Y, Occupational Therapy sessions and make a referral to a Counselling Centre.
27. In mid-April 2025, the Council issued an amended EHC Plan for Y.

Mrs X’s complaint

28. On 18 March 2025, Mrs X complained to the Council about its failure to provide alternative education to Y after they stopped attending school. Mrs X said Y had been without any education or support and she had been in contact with the Council about this since September 2024. Mrs X also complained about the annual review carried out in February 2025. Mrs X said she did not receive the correct paperwork before the review meeting and the attendees did not discuss Y’s EHC Plan.
29. The Council responded to Mrs X’s complaint on 22 April 2025. The Council recognised it failed to fulfil its duty to provide education to Y under section 19 of the Education Act 1996. The Council said school was available for Y but said it was not possible for Y to attend. The Council said it did not think there had been anything wrong with how Y’s annual review was carried out but invited Mrs X to provide specific details.
30. Mrs X asked the Council to consider her complaint at the next stage of its process on 22 April 2025. Mrs X provided a list of things she believed were wrong with the annual review. On 1 May 2025, the Council said it would not consider her complaint further as Mrs X had provided no new information.

Findings

Section 19 duty

31. After Y stopped attending school in September 2024, it is not clear what steps the Council took to consider whether it should put in place alternative education for Y. It could have called an emergency annual review as Mrs X suggested to re-look at Y’s EHC Plan given they were not at school and most of the provision in their EHC Plan was education based.
32. The Council has recognised it failed to fulfil its duty under section 19 of the Education Act 1996. While this is welcomed, the Council did not offer Mrs X a remedy for the injustice this caused.
33. Y was without education and support from September 2024 until March 2025 when the Council put in place alternative provision. During this time Y did not receive the education they should have or the section F provision in their EHC Plan. This is an injustice to Y.
34. Mrs X also spent time pursuing this with the Council to try to get some education put in place for Y. Having a child at home with no support who has special educational needs will have caused Mrs X anxiety and frustration. This is an injustice to Mrs X.

EHC Plan annual review

35. As stated above, I have not investigated Mrs X’s concerns about Y’s EHC Plan or the annual review process. Ultimately Mrs X is unhappy that the Council did not get the input from certain professionals she believes are needed to provide the most up to date reports for Y and does not believe the EHC Plan the Council produced in April 2025 meets Y’s needs. Mrs X would need to appeal to the SEND Tribunal to achieve the remedy she is seeking.
36. The Council was however at fault for delays carrying out the annual review of Y EHC Plan. Y received an EHC Plan in January 2024, however the Council did not hold an annual review meeting until late February 2025. The Council should have arranged for the annual review to be completed within 12 months of Y’s January 2024 EHC Plan. As a result Mrs X had to wait for longer than she should have to receive a completed EHC Plan which she could appeal against.

Complaint handling

37. At stage one of the Council’s complaints procedure it has 10 working days to respond to a complaint. The Council took 18 working days to respond to Mrs X’s complaint. This was fault.
38. At stage two, the Council told Mrs X she had not raised any new issues so it would not consider her complaint at stage two. In response to the Councils stage one complaint response, Mrs X explained why she felt the annual review process of Y’s EHC Plan was flawed and provided examples. The Council should have responded to these. This was a missed opportunity from the Council to try to resolve some of Mrs X’s concerns.

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Agreed Action

39. Within one month of my final decision the Council agreed to carry out the following.
• Apologise to Mrs X for the injustice caused from failing to provide Y with suitable education, delaying carrying out Y’s annual review and for its failures in complaint handling. 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.
• Pay Mrs X £3,000 to recognise the loss of education Y suffered for one and a half terms, from September 2024 to March 2025. In coming to this figure I considered the Ombudsman’s guidance on remedies. I also considered Y was a child with special educational needs, in a critical year of their education.
• Pay Mrs X £300 to recognise the anxiety and frustration she suffered due to having Y at home with no support.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice. The Council has agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman