Summary: Mrs X complained the Council did not review her child’s Education Health and Care Plan in line with statutory timescales. She also complained the Council did not provide her child with alternative provision. She says this impacted her child’s education and impacted her emotional wellbeing. We find no fault with the Council’s decision-making regarding alternative provision. We do find the Council at fault for not meeting statutory timescale which caused injustice. We are satisfied the Council’s actions have remedied the injustice caused.

The complaint

1. Mrs X complains about the handling of her child’s education. Specifically, she complains the Council:

1. Did not review the Education Health and Care Plan in line with the statutory timescale
2. Did not provide her child with suitable alternative provision
3. Did not properly consult with other education placements
4. Wrongly sent her a warning letter for persistent and threatening communication.

2. Mrs X says this has impacted child’s education and emotional wellbeing. Mrs X says this has also had significant impact on her own emotional wellbeing.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, 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. 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)
7. 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

8. The EHC Plan is set out in sections. We cannot direct changes to the sections about a child’s needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
9. I have not investigated part c of Mrs X’s complaint. This is because the Council’s consultation with other education establishments is not separable from the name of the educational placement, which Mrs X could raise at the SEND Tribunal. And it was reasonable for Mrs X to use her right of appeal to Tribunal.
10. For this reason, I have only investigated parts a, b and d of the complaint.

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How I considered this complaint

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

Statutory timescales (part a of the complaint)

14. 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. 
15. 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) 
16. 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.
17. 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.
18. 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 (part b of the complaint)

19. 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.
20. 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)
21. 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)

Warning letter (part d of the complaint)

22. The Council’s policy on unacceptable actions by customers details four groups of unacceptable actions which include:
• Aggressive or abusive behaviour which it describes as anger which escalates into aggressive or threatening behaviour, written or verbal abuse or unsubstantiated allegations.
• Unreasonable demands which it describes as if complying with the demand would impact substantially on the work of the Council or the services it provides to other customers
• Unreasonable levels of contact which it describes as instances when the amount of time dealing with a complaint impacts the Council’s ability to deal with it, which it says is not the same as persistence which is positive
• Unreasonable use of the complaints process which is describes is when the effect of repeated complaints is to harass or prevent the Council from pursuing a legitimate aim or implementing a legitimate decision
23. The policy states that wherever possible, the Council will give the customer an opportunity to change their behaviour before any action to restrict their contact with the Council is considered.
24. The policy states with the approval of an appropriate senior manager, the Council will write to the customer with a warning explaining how their behaviour or contact is unreasonable, what they should do to change their behaviour or contact, and what action the Council will take if they do not change their behaviour or contact.

What happened

25. Y has an Education, Health and Care (EHC) Plan. The Plan named a specialist school for Y.
26. In December 2024, the EHC Plan annual review was due.
27. In January, Mrs X asked the Council to review Y’s EHC Plan and change the provision named to Education Other Than At School (EOTAS). She told the Council that Y was having difficulty attending school because Y found school overwhelming. The Council agreed to arrange an annual review of Y’s EHC Plan and told Mrs X it was aware the school had introduced a reduced timetable to support Y to attend school. The Council encouraged Mrs X to continue to send Y to school to see if Y’s attendance improved with the reduced timetable.
28. In early February, Mrs X told the Council that Y was no longer able to attend school even with a further reduced timetable. The Council contacted Mrs X and encouraged her to continue to send Y to school unless there was a medical reason.
29. The school offered Y provision away from the school building to reengage them in education. This included one-to-one online tutoring and offsite therapeutic activities and sports classes.
30. In mid-February, Mrs X contacted the Council several times and requested alternative provision. The Council told Mrs X it decided it did not have a Section 19 duty to Y because reasonable adjustments had been made by the school to support Y to access education, and there was no medical evidence to suggest Y could not attend school.
31. In late February, the Council held Y’s annual review meeting. The Council offered a discretionary short-term package of alternative provision which was to be implemented by the school. It told Mrs X it would take several weeks to arrange the support.
32. In March, Mrs X made a formal complaint. Y began accessing private tutoring commissioned by another family member. The school had difficulties sourcing the agreed alternative provision. The Council commissioned the short-term package which included six hours of tutoring and two hours of specialist support weekly to support Y to return to education. Mrs X declined the offered specialist support and requested the Council commission the same private tutor Y was working with. The Council told Mrs X that Y’s current tutor was not approved by the Council. It provided details of two available tutors. Mrs X declined both tutors. She requested an increase of the tutoring and an additional sports class.
33. The Council sent Mrs X its stage one complaints response. It apologised for the delay in completing the EHC Plan annual review. It also sent Mrs X a warning letter asking her to stop persistent, demanding and threatening communications. It provided evidence of the communications it considered unreasonable. It told Mrs X if the behaviour continued, it would limit her communications.
34. In April, the Council contacted the school and explained Mrs X had declined the providers approved by the Council. It advised the school to contact Mrs X and resume its education offering to Y.
35. In May, the Council issued the final Plan.
36. In June, the Council issued its final complaints response.

Analysis

Statutory timescales (part a of the complaint)

37. 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 accepts Y’s annual review was due in December 2024 and apologised to Mrs X for the delay. The Council issued the final reviewed EHC Plan in May 2025. This is six months later than timescales allow, which is fault. I consider this delay caused unnecessary frustration and uncertainty to Mrs X and delayed her right to appeal to Tribunal.
38. I do not consider the Council’s delay to have caused Y to miss education provision. This is because the finalised Plan named the placement which Y was not attending. Therefore, even but for the fault, on balance I consider it more likely Y would not have accessed the provision set out in the Plan.
39. The Council provided a written apology to Mrs X for its delay which I consider is a suitable remedy for the injustice caused by its delay.
40. There have been recent service improvement actions agreed to address the Council’s failure to issue EHC Plans within statutory timescales. For this reason, I do not consider further service improvement action to be appropriate in this case.

Alternative provision (part b of the complaint)

41. The Council decided it did not owe its Section 19 duty to Y and it explained its rationale to Mrs X. I am satisfied the Council showed proper consideration of Y’s needs and the provisions offered by the school when assessing whether education was accessible to Y. I am satisfied the Council made its decision regarding its section 19 duty in accordance with relevant legislation and caselaw. I find no fault with the Council’s decision-making and therefore I cannot question the outcome.

Warning letter (part d of the complaint)

42. Mrs X states the nature of her correspondence with the Council did not warrant a warning letter. I am satisfied the warning letter sent to Mrs X was issued by the Council in line with its policy. Therefore, I find no fault with the Council.

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Decision

43. I find fault causing injustice. The Council’s actions have remedied the injustice.

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Investigator's decision on behalf of the Ombudsman