Summary: Miss X complained the Council failed to complete a review of Y’s Education, Health and Care Plan in line with statutory time limits and failed to arrange alternative provision while he was out of school. The Council was at fault causing uncertainty and frustration, and meaning Y missed out on educational provision he was entitled to. The Council has agreed to apologise and make a payment to reflect the injustice.

The complaint

1. Miss X complains the Council failed to complete a January 2024 annual review of her son Y’s Education, Health and Care (EHC) Plan in line with statutory time limits and failed to make appropriate alternative provision available for him, despite knowing he was not attending school. Miss X also says communication has been poor and the Council has failed to keep her regularly updated. Miss X says this has caused her real distress and frustration and means Y has not achieved his academic goals.

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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. 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)
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. 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)
6. 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.
7. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
8. 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)
9. 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

10. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
11. If someone has, or could have appealed to the Tribunal, the law says we cannot investigate any matter which was part of, connected to, or could have been part of the appeal. As Miss X had the right to appeal the content of Y’s EHC Plans, including the named school and special educational provision to the Tribunal, I have not investigated the content of Y’s EHC Plans.
12. We cannot usually investigate complaints about events that took place more than 12 months before they were brought to the Ombudsman. We can only exercise discretion to look back further if there are good reasons to do so.
13. Miss X first brought her complaint to the Ombudsman in April 2025, meaning events that took place before April 2024 have been raised late. However, as the delay in raising a complaint with the Ombudsman was due to the Council not completing Y’s EHC Plan annual review when it should have done, I have exercised discretion to look back to January 2024.
14. We cannot usually investigate complaints unless we are satisfied the Council has had a chance to look into them first. This includes events that are linked to or ongoing from the complaint that has been brought to us.
15. The Council responded to Miss X’s complaint in April 2025. I am aware that Miss X is unhappy about events that have happened since then, but these would need to be raised as a new complaint before we could investigate further.
16. Any mention below of events that took place before January 2024 or after April 2025 are for reference only.

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How I considered this complaint

17. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
18. Miss 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

EHC Plans

19. A child or young person with special educational needs (SEN) may have an 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. 
20. 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)  
21. Councils must arrange for EHC Plans to be reviewed at least once a year to ensure they are 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 their educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
22. Caselaw has established that when a Council is amending an EHC Plan, it should take no longer than 12 weeks from the date of the annual review meeting to the date it issues the final amended plan.

Section 19 duty

23. 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.
24. 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)
25. 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
26. 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

27. I have summarised below some key events leading to Miss X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
28. Y has SEN and his education was supported by an EHC Plan which named School A. Y had been struggling to attend School A and from October 2023 his attendance was on a part-time basis. By January 2024, Y was only attending for one hour per week and School A agreed it could not meet his needs.
29. Y’s EHC Plan annual review meeting took place on 17 January 2024 and the Council began consulting with alternative school settings.
30. On 10 April, the Council missed the 12-week deadline to issue an amended EHC Plan for Y.
31. The Council sent an amended EHC Plan to Miss X, still naming School A, on 29 July, around three months after the deadline to do so. The Council continued consulting with alternative school settings.
32. Y’s next EHC Plan annual review meeting was held on 2 December.
33. Miss X asked the Council to consider a package of Education Other Than At School for Y but its panel decided his needs could be met in a school setting.
34. On 24 February, the Council missed the 12-week deadline to issue an amended EHC Plan for Y.
35. On 3 March, one week after the deadline to do so, the Council issued an amended EHC Plan for Y, still naming School A while it continued consulting with alternative school settings and considered alternative provision for Y.
36. In response to a complaint she had raised, the Council wrote to Miss X in April 2025. The Council apologised for the lack of support Miss X and Y had received in accessing Y’s full educational entitlement and the impact this had on them. The Council agreed Y needed a gradual return to accessing learning due to the length of time he had been out of education and agreed to fund five hours of tutoring per week, with the flexibility to start this at a lower level, and to be reviewed once Y reached the full five hours per week. The Council also agreed to provide funding for a gym membership for Y.
37. In response to our enquiries, the Council agreed it should have provided further support to School A to ensure additional alternative provision was explored for Y. The Council has said it has restructured its EHC team to ensure all students with an EHC Plan have an allocated caseworker who is the single point of contact to work with the family and school to ensure special educational provision is in place. The Council said it is also in the process of creating a team to support children and young people who are not attending school so they too will have a named caseworker to ensure provision is in place. The Council has said it is also creating an alternative provision framework to prevent a recurrence of the faults going forward.

Analysis

38. The annual review meeting for Y’s EHC Plan took place on 17 January 2024. Had the Council completed this in line with statutory time limits, Y’s final EHC Plan would have been issued by 10 April 2024. However, the Council did not finalise Y’s EHC Plan until 29 July 2024, around three months after the deadline to do so. This is a considerable delay, which is fault. As a result, Miss X was caused significant frustration and uncertainty, as well as frustrating her right to appeal to the Tribunal. This is injustice.
39. The next annual review of Y’s EHC Plan took place on 2 December 2024. Had the Council completed this in line with statutory time limits, Y’s final EHC Plan would have been issued by 24 February 2024. However, the Council did not issue a final EHC Plan for Y until 3 March 2024, one week after the deadline to do so. This amounts to fault, however I find the injustice to Miss X and Y would have been minimal due to the short length of the delay.
40. From the start point of my investigation in January 2024, the Council was aware Y was only attending School A for one hour per week and was under a Section 19 duty to arrange alternative education for him. Based on the information I have seen so far, the Council did not act to assess what level of education would have been suitable for Y, arrange for any Section 19 provision, or review whether his ability to access education had increased. This amounts to fault. As a result, Y missed out on educational provision he was entitled to between January 2024 and the end point of my investigation in April 2025, approximately four school terms, which is injustice.
41. The Council has explained what steps it has taken to prevent a recurrence, and I find this to be a suitable resolution to prevent a repeat of the faults. However, I find the Council also ought to make a personal remedy for the injustice to Y between January 2024, and when it eventually put Section 19 provision in place in April 2025.
42. Miss X has said the communication from the Council was poor throughout the process and it failed to keep her regularly updated. While I have not seen an exhaustive catalogue of communication between Miss X and the Council, I have seen a brief chronology of contact as well as several emails and letters. Having looked through these, it is clear Miss X frequently had to chase the Council for updates and there were periods of time where it was not in touch with her. This is poor practice and amounts to fault. This caused further uncertainty and frustration for Miss X, which is injustice.

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Action

43. To remedy the injustice identified above, the Council should complete the following actions within one month of the date of this decision:
• Write to Miss X to apologise for the delay in arranging alternative provision for Y while he was out of school between January 2024 and April 2025, for the delays in completing his EHC Plan annual reviews, and for the level of communication throughout the process. 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 Miss X £100 in recognition of the frustration caused by the poor communication throughout the timeline set out above.
• Pay Miss X £300 in recognition of the frustration and uncertainty caused by the delay of three months in completing Y’s EHC Plan annual review.
• Pay Miss X £3,600 in recognition of the missed provision between January 2024 and April 2025.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. 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