Summary: Miss X complained the Council failed to provide her child, Y, with special educational provision when she was unable to attend school and it delayed in completing a review of Y’s Education, Health and Care Plan. We find the Council at fault for a delay in completing the annual review and for failing to consider its duty to provide the special educational provision detailed in Y’s Education, Health and Care Plan. This caused Y and Miss X distress, uncertainty and frustration, delayed Miss Y’s right to appeal and impacted Y’s access to education. The Council has agreed to apologise and make a symbolic payment to remedy the injustice caused.

The complaint

1. Miss X complained the Council:
• Failed to provide her child, Y, with access to education and special educational provision when she was unable to attend school from September 2024.
• Failed to complete an emergency annual review following a request in October 2024.
• Failed to update Y’s Education, Health and Care Plan with speech and language provision following a tribunal order in June 2024.

Miss X told us the lack of education has caused developmental regression and worsening mental health for Y. Miss X also told us it has caused significant distress for herself and had a financial impact due to Miss X funding the relevant therapies. Miss X would like the Council to provide the necessary special educational provision, acknowledge the failures, reimburse the cost of therapy and provide compensation.

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The Ombudsman’s role and powers

2. 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.
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. 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. 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 Miss X and the Council as well as relevant law, policy and guidance.
7. 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

Legal and administrative background

8. 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. 
9. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.

10. In accordance with regulation 44(e) of the Special Educational Needs and Disability Regulations 2014, where the SEND Tribunals orders a Council to make amendments to an EHC Plan, the Council should issue the final amended Plan within 5 weeks of the Tribunal order being made.
11. 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)  
12. 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. 

13. A parent or young person can request an early annual review at any time if they have good reason. There is no statutory duty for a Council to carry out an early annual review unless it believes it is reasonable to do so. Where an early annual review is agreed, the Council should issue its decision to amend, maintain or cease the Plan within 4 weeks of the annual review meeting. Where the Council’s decision is to amend the Plan following the early annual review, it should issue the final amended Plan within 12 weeks of the annual review meeting.

What happened

14. The Council issued a final Plan for Y in June 2023. Miss X appealed section B, F and I of this Plan.
15. Following Miss X’s appeal, the SEND Tribunal issued an order in May 2024. The Tribunal ordered the Council to amended sections B, F and I of Y’s EHC Plan. In accordance with statutory timeframes, the Council should have issued the amended Plan no later than 19 June 2024.
16. The Council issued the amended Plan, in accordance with the Tribunal order, on 27 June 2024. This Plan detailed the specialist provision Y should receive. It included weekly occupational therapy and weekly speech and language therapy.
17. Y stopped attending school at the end of September 2024 due to a change in her mental health and dysregulation in the mornings.
18. Miss X contacted the Council at the beginning of October 2024 to explain Y was not attending school due to a change in her needs. Miss X requested the Council complete an emergency review of Y’s EHC Plan with a view to changing the placement named in section I.
19. Two weeks later Miss X contacted Y’s school to explain she had discussed the early annual review with the Council. The Council told Miss X it could not attend an emergency annual review so the school and Miss X should progress with arranging the review, completing the paperwork and sending it to the Council to be considered.
20. Y’s caseworker contacted Miss X the following day to discuss the early annual review. Following this phone call the caseworker emailed the school and Miss Y to request the early annual review be arranged to take place after half term as this would allow a Council caseworker to attend. The caseworker also recommended Miss X contact the SEND support service and the school contact the school attendance service.
21. An annual review meeting was held at the end of November 2024. In accordance with the statutory timeframes for completing an annual review, the Council should have issued the amended final Plan no later than 18 February 2025.
22. The Council issued Y’s amended EHC Plan at the end of July 2025.
23. In response to our enquiries the Council has not provided any evidence it considered its section 42 duty to provide the special educational provision detailed in Y’s EHC Plan between September 2024 and July 2025.
24. In its stage one complaint response dated March 2025, the Council explained it had offered Y two alternative education settings since September 2024 and it considered the placement named in Y’s EHC Plan remained suitable. The Council has not provided evidence it considered or offered alternative provision between September 2024 and March 2025.
25. In its stage two complaint response dated April 2025, the Council explained it had agreed to fund 10 hours of tuition per week. The stage two complaint response also explained the Council had approved funding for the occupational therapy and speech and language therapy provision detailed in Y’s EHC Plan. The Council has not provided evidence to show this provision has been provided between September 2024 and July 2025.

My findings

26. There was a one week delay in the Council issuing the final amended Plan following the Tribunal order in May 2024. I do not consider this delay caused a significant injustice to Y or Miss X.
27. There is no fault in the Council’s response to Miss X’s request for an early annual review meeting. There is no statutory duty for a Council to complete an early annual review, and the evidence shows the Council engaged in conversation with both Miss X and the school to advise they arrange an annual review.
28. There was an approximately 5 month delay in the Council issuing Y’s final EHC Plan following the annual review meeting in November 2024. This delay is fault which caused distress, frustration and uncertainty for Y and Miss X and delayed Miss X’s right to appeal.
29. The Council has not provided any evidence which shows it took steps to consider its section 42 duty to provide the special educational provision detailed in Y’s Plan when it was made aware of her absence from school in October 2024. Although the Council’s complaint response to Miss X in March 2025 explains the section I named setting remained a suitable placement for Y, the Council then approved weekly tuition for Y. The Council’s failure to provide records of its consideration is fault. On the balance of probabilities, based on the Councils decision to provide Y with tuition from April 2025, I find the Council’s failure to consider its section 42 duty between October 2024 and April 2025 caused Y to miss out on the special educational provision detailed in her EHC Plan between October 2024 and July 2025. This means Y missed approximately 3 terms of educational provision.
30. The Council has recently agreed to create an action plan to address how it will improve checks on whether children and young people are receiving the special educational provision they are entitled to and take timely action to put this right. For this reason, I have not recommended any further service improvements.

Action

31. Within one month of the final decision the Council will:
• Apologise to Miss X for the injustice caused by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
• Make a symbolic payment of £4,500 to Miss X in recognition of the injustice caused by the Council’s failure to consider its section 42 duty and provide the special educational provision detailed in Y’s Education, Health and Care Plan between October 2024 and July 2025. In line with our guidance on remedies, this is calculated at £1500 per term of missed provision.
• Make a further symbolic payment of £500 to Miss X in recognition of the injustice caused by the delay in issuing Y’s final amended Education, Health and Care Plan following the emergency annual review which was held in November 2024.
32. The Council should provide us with evidence it has complied with the above actions.

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Decision

33. 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