Summary: Mrs X complained the Council delayed completing an annual review, failed to ensure her son received full-time education and failed to respond to her communications and complaint. The Council delayed completing the annual review, failed to consider the level of education available to Mrs X’s son, delayed responding to her complaint and failed to address the concerns she raised. That caused Mrs X distress, delayed her appeal rights and caused her some uncertainty. An apology, payment to Mrs X and guidance to officers is satisfactory remedy.

The complaint

1. The complainant, Mrs X, complained the Council:
• delayed carrying out an annual review of her son’s education, health and care plan (EHC Plan);
• failed to ensure her son received full-time education;
• failed to respond to her communications; and
• failed to properly respond to her complaints.
2. Mrs X says the Council’s actions caused her significant distress.

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The Ombudsman’s role and powers

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 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)
5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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(i), as amended)
7. 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

8. I have exercised the Ombudsman’s discretion to investigate what has happened in terms of the education provided to Mrs X son from January 2024 even though that is more than 12 months before the complaint to the Ombudsman. That is because I am satisfied the Council delayed responding to Mrs X’s complaint, which delayed the complaint to the Ombudsman.
9. I am not investigating any failure to put in place education provision for Mrs X’s son after May 2025. That is because I am satisfied Mrs X asked the tribunal to include in her appeal her concerns about the Council naming school A in section I as she no longer considered that school suitable. That puts any education provided to Mrs X’s son after May 2025 outside the Ombudsman’s jurisdiction.
10. In normal circumstances the Ombudsman would not have jurisdiction to consider any education provided to Mrs X’s son from the point at which the final EHC Plan was issued. That is October 2024. That is because Mrs X had a right of appeal about the school named in section I. I do not consider though Mrs X had any reason to appeal about section I at that point as she was clear she considered school A suitable until May 2025. I have therefore considered Mrs X’s concern about the lack of education for her son between January 2024 and May 2025.

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How I considered this complaint

11. As part of the investigation, I have:
• considered the complaint and Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
12. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education

13. The Education Act 1996 (Section 19) says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child's age, ability and aptitude, including any special needs.
14. 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)

The Special education needs code of practice (code of practice)

15. EHC Plans must be reviewed by the local authority as a minimum every 12 months.
16. The first review must be held within 12 months of the date when the EHC Plan was issued, and then within 12 months of any previous review, and the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC Plan or previous review).
17. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHC Plan as it is, amend it, or cease to maintain it, and notify the child’s parent or the young person and the school or other institution attended.
18. If the EHC Plan needs to be amended, the local authority should start the process of amendment without delay.
19. If the local authority decides to continue to make amendments, it must issue the amended EHC Plan as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.

The Council’s policy statement on arranging education for children who cannot attend school because of health needs (the Council’s policy)

20. Schools and academies should be providing support for their pupils with medical needs under their statutory duties. It is only when the pupil’s medical condition becomes too complex, the risks are too great to manage in school, or if the condition is long-term that this policy would apply.
21. Where possible, schools should continue to provide education to children with health needs who can attend school. The Council does not need to become involved in such arrangements unless it has reason to believe the education provided by the home school is unsuitable.
22. Where full-time education would not be in the best interests of the child because of reasons relating to their physical or mental health the Council may support part-time education.
23. Where part-time education is provided it will be regularly reviewed and a plan for increasing hours and possible reintegration to school will be put in place where appropriate.
24. The focus of the Council’s educational offer will always be to facilitate a return to full-time education with the child’s home school.

The Council’s feedback comments, compliments and complaints procedure

25. The Council will respond to a complaint within 10 days wherever possible. If the person complaining is not happy with the response they can ask for a review by a senior manager and a response will be provided within 10 days wherever possible.

What happened

26. Mrs X’s son has special educational needs (SEN) and has an EHC Plan which names school A. Due to difficulties with attendance school A put in place a part-time timetable in January 2024. School A’s plan was for that to be reviewed every two weeks. As part of that plan Mrs X’s son received one hour 45 minutes education Monday to Thursday.
27. School A held an annual review of the EHC Plan on 16 May 2024. Mrs X says that was not an annual review and was intended as a meeting to discuss progress. School A sent the paperwork for what it described as an annual review to the Council on 24 May. That paperwork asked for more funding from the Council and made clear Mrs X’s son was on a part-time timetable. The Council later agreed further funding.
28. Mrs X contacted the Council on 25 July to tell it she had not agreed to the meeting in May as an annual review. Mrs X also put in a complaint.
29. On 30 July the Council issued a draft EHC Plan. Mrs X asked for amendments to that, as well as to a second revised EHC Plan the Council issued. The Council issued the final EHC Plan on 2 October. Mrs X appealed against sections B and F of the EHC Plan. In May 2025 Mrs X added the school named in section I to her appeal.
30. The Council responded to Mrs X’s complaint from July 2024 on 28 April 2025. Mrs X asked the Council to take her complaint to stage two. The Council responded to that on 5 July.
31. On 23 July the Council agreed to education other than at school for Mrs X’s son.
32. The Council says it has identified significant areas for development and has put in place the following measures:
• increased the capacity within the special educational needs team;
• reviewed policies and processes and introduced new standard operating procedures from September 2025. The Council says that will address concerns around timeliness with annual reviews with a clear tracker that allocates all officers to specific schools and ensures reviews are completed in a timely way;
• devised a training and development programme for all staff so it can improve communication and streamline processes.

Analysis

33. Mrs X says the Council delayed carrying out an annual review for her son’s EHC Plan. The Council accepts there were delays. There is also a dispute about whether the meeting in May 2024 constituted a proper annual review as Mrs X says she would have sought significant amendments to the EHC Plan if it had been a full review. The documentary evidence I have seen records the meeting in May 2024 as an annual review. Even at that point though the annual review was already late given the Council issued the previous EHC Plan in February 2023. Delay holding the annual review, even if I were to accept the May 2024 meeting was a formal annual review, is fault.
34. I am also satisfied the Council delayed issuing a final EHC Plan following the May 2024 meeting. The code of practice is clear the Council has 12 weeks following an annual review to issue a final EHC Plan. The Council failed to meet that timescale in this case because it did not issue the final EHC Plan until October 2024. That delay is fault. That also delayed Mrs X’s appeal right.
35. Mrs X says the Council failed to ensure her son received full time education from January 2024 onwards.
36. It is clear Mrs X’s son was on a part-time timetable from January 2024 because he was struggling to attend school. The evidence I have seen satisfies me that part-time timetable was initially for one hour 45 minutes per day, four times a week. I am also satisfied the documentary evidence shows that was intended as a short-term measure, with a view to get Mrs X’s son back into full-time education at school A. I have seen no evidence to suggest the Council knew Mrs X’s son was on a part-time timetable until it received the annual review paperwork in May 2024. I therefore have no grounds to criticise the Council before then.
37. I have seen no evidence the Council made any contact with school A to clarify the part-time arrangements and the plan for Mrs X’s son when it received the annual review documentation. Nor have I seen any evidence to suggest the Council contacted school A to clarify that when Mrs X raised concerns in her complaint in July 2024. I appreciate Mrs X’s son remained on the roll of school A. However, the Council retains responsibility for ensuring a child has full-time education. I would therefore have expected the Council to liaise with school A to identify the education in place and the longer term plan for Mrs X’s son. Failure to do that is fault.
38. I am satisfied though Mrs X’s son had some education in place from January 2024 onwards. That was initially seven hours a week and then became one hour 45 minutes a week in school and eight hours provision at home. I appreciate that is not full-time education. However, eight hours provision one-to-one at home is more intensive than education provided in a school environment. It also seems to me, based on the documentary evidence I have seen, Mrs X considered school A suitable for her son at that point and agreed he was struggling to attend school on a full-time basis.
39. I also take into account the fact when the Council agreed an education other than at school package, that only involved eight hours face-to-face academic provision. That is what Mrs X’s son received alongside the one hour 45 minute provision in school per week. It is therefore possible even if the Council had become involved sooner Mrs X’s son would have received the same amount of education. I therefore consider Mrs X’s injustice is limited to her uncertainty about whether the situation would have been different.
40. In reaching that view I note Mrs X says the Council agreed to look for a home tutor for her son in 2024 because the part-time arrangements with the school were not working. The Council disputes that. I have no documentary evidence to show this is what the Council agreed to do. So, I have no grounds to criticise it.
41. Mrs X says the Council failed to properly respond to her complaints and failed to respond to her communications. The evidence I have seen satisfies me Mrs X put in her complaint to the Council in July 2024. According to the Council’s complaints procedure it should have responded to that complaint within 10 days. However, the Council did not respond until 28 April 2025. That is a significant delay and is fault.
42. I am also concerned about the stage one and stage two responses the Council sent. For the stage one complaint response the Council did not address any of the concerns Mrs X raised. Instead, the Council sent Mrs X a copy of the October 2024 EHC Plan. Failure to respond to the concerns Mrs X had raised is fault.
43. In both the stage one and two complaints Mrs X raised concerns about the part-time provision in place for her son. In the stage two response the Council referred Mrs X back to school A to complain and suggested she appeal to tribunal if she did not consider school A suitable.
44. I am not satisfied either complaint response addressed the concerns Mrs X raised. While Mrs X’s son remained on the roll of the school it is the Council’s responsibility to ensure a child receives full-time education. I have already set out earlier in this statement my concerns about how the Council dealt with the issue of the part-time education. Failure to respond to the points Mrs X raised about that in the complaint response is fault.
45. I am satisfied because of the faults I have identified in this statement Mrs X has experienced distress, has had her appeal right delayed and is left with some uncertainty about whether her son could have received more education. As remedy for that I recommended the Council apologise to Mrs X and pay her £500. The Council has agreed to my recommendations.
46. I also recommended the Council provide guidance to officers in education about the Council’s section 19 duty and the need to ensure any part-time education put in place by schools is properly reviewed. The Council should also provide guidance to officers dealing with complaints about the need to ensure complaint responses address all the concerns raised. That guidance should make clear where part of the complaint relates to matters which will be considered by tribunal it is acceptable to exclude those in the response but that should not mean the remainder of the concerns are not addressed. The Council has agreed to my recommendations.
47. I do not make any further recommendation for procedural remedies as I am satisfied the Council has taken the action outlined in paragraph 32 to address some of the issues Mrs X experienced in this complaint.

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Action

48. Within one month of my decision the Council should:
• apologise to Mrs X for the frustration and uncertainty she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs X £500;
• provide guidance to officers in education about the Council's section 19 duty and the need to ensure any part-time education put in place by schools is properly reviewed.
• provide guidance to officers dealing with complaints about the need to ensure complaint responses address all the concerns raised. That guidance should make clear where part of the complaint relates to matters which a tribunal will consider it is acceptable to exclude those in the response but that should not mean the remainder of the concerns are not addressed.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I find fault causing injustice. The Council will take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman