Summary: We found fault by the Council on Mrs Y’s complaint about it failing to make alternative provision sooner for her son who struggled at school despite having an Education, Health and Care plan. It failed to consider, decide, or respond to her request for alternative provision. It also failed to consider and decide whether he received the provision set out in his plan. It delayed logging the annual review and missed statutory timescales. It did not provide an update it said it would. The Council agreed to send a written apology and pay £3,600 for the impact of lost provision. It will review why the failures happened, act to ensure they are not repeated on future cases and prepare an Action Plan. It will provide an update on actions already taken.

The complaint

1. Mrs Y’s son has an Education, Health and Care (EHC) plan and she complains about the Council failing to:
1. give him the provision set out in his plan;
2. make alternative provision for him as was unable to attend school from September 2024; and
3. follow statutory timescales following an annual review of his plan in February 2025 when it decided to amend it.
2. As a result, her son missed provision set out in his plan and also missed out on education. This has affected him and the whole family.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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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How I considered this complaint

6. I considered evidence provided by Mrs Y, the notes I made of our telephone conversation, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mrs Y and the Council. I considered their responses.

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What I found

EHC plan process

7. 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 First-tier Tribunal (the tribunal) or the council can do this. 

8. I refer to statutory guidance Special educational needs and disability code of practice: 0 to 25 years: January 2015, as ‘the Code’.

Maintaining the EHC plan

9. 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 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)  
10. 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. 

Reviewing EHC plans

11. 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 the Code, paragraph 9.176) 
12. 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.
13. 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 the 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.
14. 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.
15. The Council can delegate the holding of the review meeting to a school but remains responsible for the overall process.
16. An appeal right only arises when an EHC plan is amended, and the amended final EHC plan is issued.
17. The courts found that councils must notify the parent of the decision to amend and what the proposed changes are within four weeks of the annual review meeting. The final amended plan must be issued within eight weeks of the ‘amendment notice’ ((R (L,M and P) v Devon County Council). This means the final EHC plan must be issued within 12 weeks of the review meeting.

Transfer between phases of education

18. An EHC plan must be reviewed and amended in sufficient time before a child/young person moves between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. The key transfers include primary school to secondary school (the Code, paragraph 9.179)

Alternative Provision

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. 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.
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. 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))
22. The courts have considered the circumstances where the section 19 duty applies. Case law states 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)

What happened

23. Mrs Y’s son, Z, had an EHC plan from February 2024. At the time, Mrs Y was living within another local authority area.
24. She tried to get Z back to school from September when he started Year 7. While he would attend school, this was only for short periods such as 0.5 to 2 hours a day. When he was there, he was not doing lessons.
25. In October, Mrs Y moved to the Council’s area and emailed it about issues with the placement, Z being on a part time timetable, and she and the school working to increase this as suggested by the educational psychologist. She also said this was not working. She asked the Council to consider alternative provision for him. Later the same month, she told the Council Z could not attend full time and asked for provision under section 19.
26. The Council accepted:

• it had no evidence it acted on this information;
• it had become aware of Z struggling at school and that he was on a part time timetable;
• there was a gap in information during this period as the deputy manager and caseworker at the time both left the Council around November;
• there was some limited evidence of communication with Mrs Y;
• it could not provide evidence of discussions with her or the school having taken place;
• the annual review should have taken place by December 2024 but due to capacity issues, and the use of agency workers to cover, there was no consistent allocated caseworker to ensure this happened; and
• it considered the case was not handed to anyone else to deal with and no further action was taken until the stage 1 complaint in March 2025.

27. Z remained at the school, which was in the Council’s area anyway, as it was within travelable distance from his new home.
28. In December, the Council carried out a Phase Transfer review. This is done when a council has a legal duty to review and amend an EHC plan where a child transfers from one phase of education to another. It would include a move from primary to secondary school, for example. It must start within 12 months of a transfer to a new phase of education.
29. Mrs Y believed as Z could not attend school full time, the Council should have arranged alternative section 19 provision for him. She also believed it failed to meet its section 42 duty to ensure Z received the provision set out in his EHC plan.
30. The Council noted there was no evidence to support her view that Z was too unwell to attend school.
31. Z fully stopped attending school in February 2025. The Council attended the annual review held this month.
32. The annual review papers did not mention alternative provision. They recorded he was on a reduced timetable as advised by the educational psychologist and that Mrs Y wanted a change of placement to specialist. They also showed he attended school about 49% of the time from September 2024 to the annual review. The Council accepted it was unclear whether this meant half the week, each week, or whether this was mainly in the first few months of the academic year. In her response to my draft decision, Mrs Y felt the attendance figure was misleading. This was because it gave a better impression of him attending school even if he was only there for an hour, for example.
33. The school sent the annual review papers to the Council on 11 February 2025. The Council accepted it delayed logging the review so the caseworker could process the amendments. Part of the reason for the delay was a large caseload managed by the caseworker.
34. The Council confirmed Z was on the school roll which received funding. The school made no request to increase the element 3 funding of £7,560. Element 3 funding, or ‘top-up’ funding, is the funding required over and above the core funding a school receives to enable a pupil with high needs to participate in education and learning. It contributes to the costs of special educational provision for children with high needs where support identified is more than the £6,000 the school had to contribute towards the cost of a child with an EHC plan.
35. Mrs Y sent a formal complaint to the Council in March. She complained about the delays that happened since the annual review. Later the same month, the Council sent its stage 1 response, in which it apologised for the delay securing alternative provision for Z and for failing to communicate after receiving her letter in October 2024.
36. The Council later apologised for not addressing her complaint at this point about the failure to tell her whether it would cease, amend, or maintain, the EHC plan following the annual review.
37. A referral for alternative provision was sent to approved providers with a request for up to 15 hours a week. The aim was to build up his provision and transition Z back into school. Mrs Y asked for her complaint to progress to the next stage.
38. In April 2025, the Council sent its stage 2 response under its complaints procedure. This focused on her complaint about it failing to tell her whether it would cease, maintain, or amend the EHC plan within four weeks of the annual review as legally required. The Council:

• agreed it breached its legal duty as claimed for which it apologised;
• would give her an update towards the end of the month with details of any amendments needed; and
• apologised for its failures and told her what action it had now taken. This included: recruitment to essential roles to ensure it can meet capacity and deadline demand; review of practice so support can be provided efficiently and promptly; improved communications with parents to keep them informed; more joined-up working with the Council and schools.

39. In May, the Council sent her its stage 3 response under its complaints procedure. This noted there was clear concern about further delays with Z’s alternative provision placement and lack of clear communication from the Council. This included delays that meant it failed to give her an update towards the end of the previous month as promised. This was because of the Easter break and key officers being on leave.
40. In early May, the Council also sent her the amended final EHC plan and began consultations with special schools.
41. By mid-May, alternative provision had started at 15 hours a week with a tutor at the house or community centre. The provider had to send Mrs Y and the Council weekly attendance information.
42. In June, two further schools were consulted.
43. Mrs Y claimed while alternative provision was not successful, it did last until the end of July. By this point, it was an hour and a half a day but all too general, like playing board games.
44. Z is now on the roll of the school named in his EHC plan which is a 50 minute drive away. He stays there for a maximum of 30 minutes with her before returning home. She has appealed this decision to the tribunal as it is not the school she wants for Z.

My findings

45. I found the following on this complaint:
1. In October 2024, Mrs Y alerted the Council to her concerns about the school placement and Z being on a part time timetable. She told it while they tried to increase his time at school, this was not working. She asked the Council about it providing alternative provision for him.
2. The Council accepted it could not show it acted on her request. It also accepted there was a gap in information for this period which was due to key staff involved with the case leaving. It could not show it discussed the issue with her or the school. It also apologised during its complaints procedure for failing to secure alternative provision for Z and for not responding to her October letter.
3. I am satisfied these failures amount to fault because:

• on receipt of this letter, the Council should have explored what was happening with Z’s education and the provision set out in his EHC plan. It failed to consider and decide whether it needed to step in and make section 19 provision. It also failed to consider and decide whether the provision set out in his EHC plan was being provided;
• it failed to ensure, when case staff involved left, arrangements were in place for the prompt re-allocation of the case to other staff;
• it did not act on her request until March 2025, five months later, when she complained; and
• alternative provision was eventually put into place in May 2025, seven months after her initial request.
4. I consider these failures caused Mrs Y and Z injustice. They lost the opportunity to have the Council consider and decide whether it needed to exercise its section 19 duties sooner than it did. They also lost the opportunity to have the Council consider and decide whether provision set out in his EHC plan was being provided sooner than it did. Alternative provision was eventually put in to place in May 2025. From the date of the request, this meant it was not provided for seven months. Although there is no statutory deadline to arrange alternative provision, I consider seven months excessive. There was a loss of provision during this seven-month period. The failures also caused Mrs Y frustration and anxiety.
5. The Council also accepted it delayed logging the annual review so the caseworker could process the amendments to the EHC plan. It explained part of the reason was due to the caseworker having a large caseload.
6. I am satisfied this failure was fault. When it proposed making amendments to the EHC plan, it had to send Mrs Y a copy of the existing non-amended plan along with a notice which set out the details of the proposed amendments within four weeks of the review meeting. The Council failed to send her the notice within four weeks (3 March 2025). It also failed to send her the final amended EHC plan within eight weeks of the notice (31 March 2025). Instead, she received the final amended EHC plan on 6 May, five weeks late.
7. I am satisfied this delay caused her fault. She lost the opportunity to have received it sooner which delayed her right to appeal.
8. There were also failures within the Council’s complaints procedure. For example, its stage 1 response failed to address the complaint she made about it failing to tell her whether it would cease, amend, or maintain the EHC plan following the annual review. This was not addressed until stage 2. I am not satisfied this caused Mrs Y a significant injustice as her complaint was addressed during the process.
9. At stage 3, the Council also accepted there had been further delays as it had failed to update her after stage 2 as agreed. I am satisfied this caused her injustice. It caused further frustration and further undermined her confidence in the Council.

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Action

46. I considered our guidance on remedies. I also took account of:
1. what action the Council has already taken which included: recruitment to essential roles to ensure it can meet capacity and deadline demand; review of practice so support can be provided efficiently and promptly; improved communications with parents to keep them informed; more joined-up working with the Council and schools.
2. the provision that was on offer, and received, by Z.
3. this was an important phase of Z’s education, having just moved to Year 7 after transitioning from another local authority
47. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mrs Y a written apology for the injustice caused by its failure to: respond and action her October 2024 request sooner; explore, consider, and decide whether it needed to exercise its section 19 duties sooner; explore, consider, and decide whether the EHC plan provision was being made sooner; promptly log the annual review; meet the statutory timescales following the annual review; update her after agreeing to do so at stage 2 of its complaints procedure.
2. Pay £3,600 to Mrs Y for impact of the lost educational provision (2 terms x £1,800) This was calculated as: 0.5 x Autumn term 2024 (Nov-December); 1 x Spring term 2025 (January-March); 0.5 x Summer term (April-May).
3. Review why the failure to respond and act on her October 2024 request happened and act to ensure this cannot be repeated on future cases.
4. Remind relevant officers of the need to keep section 19 and section 42 duties under review during the lifetime of a case.
5. Ensure future annual reviews are logged promptly to allow case workers to process amendments to EHC plans within statutory timescales.
6. Review why the statutory timescales were not met and prepare an Action Plan showing how it can meet them on future cases.
7. Review why the update agreed at stage 2 did not happen and act to ensure what is agreed during the complaints process on future cases is carried out.
8. Give an update on the actions it said it took has had and whether it needs to take further action to see improvements.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I found the following on Mrs Y’s complaint against the Council:

• Complaint a): fault causing injustice;
• Complaint b): fault causing injustice; and
• Complaint c): fault causing injustice.

50. The agreed action remedies the injustice found.

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Investigator's decision on behalf of the Ombudsman