Summary: The Council was at fault for failing to provide Miss X’s child, Y with all the special educational provision they were entitled to in their Education Health and Care (EHC) Plan. It was also at fault for failing to keep under review the alternative educational provision provided to Y when they were unable to attend school. Poor communication also added to Miss X’s frustration. The Council has agreed to apologise and make a payment to acknowledge the missed education, delayed appeal rights, distress and frustration caused.

The complaint

1. Miss X complained the Council had failed to provide adequate education for her child, Y, since 2023. She said its communication with her was poor and it did not respond to her complaints in line with its procedures. This has caused Y to miss out on education and caused Miss X significant frustration.

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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. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. 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)
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(1), 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. Miss X complained about the actions of the Council since January 2023. However, the Council issued a final EHC plan in September 2023 and with this gave Miss X her rights to appeal that plan to the First Tier Tribunal. It was also open to Miss X to complain to us about what happened sooner, and I see no good reason to consider this now.
9. I have considered what happened from April 2024, one year prior to Miss X complaining to us, until July 2025 when the Council issued its response under stage two of its complaints process.

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How I considered this complaint

10. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance and considered our guidance on remedies published on our website.
11. I gave Miss X and the Council an opportunity to comment on a draft of this decision. I considered any comments before I reached a final decision.

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What I found

Relevant law and guidance

EHC Plan

12. 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.
13. 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).
14. 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

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 discontinue 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. 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.

Alternative Provision

17. 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.
18. 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)

The Council’s complaints’ procedure

19. The Council’s complaints’ procedure refers to two stages and says a full complaint response will be sent, at each stage, within 20 working days. However complex complaints may take longer to investigate.

What happened

20. The following is a summary of the key events relevant to this complaint.
21. Miss X’s child, Y, has special educational needs. The Council issued a final EHC Plan in September 2023. The Plan said Y needs a highly structured and consistent routine with individual and small group learning. It also said Y needed support to develop social skills with peers. The plan named a mainstream school.
22. In April 2024 the Council carried out a review of Y’s EHC Plan. The review concluded that none of Y’s outcomes had been met and Y had not attended the named school. The outcome of the review was that the EHC plan should be amended. Y’s parent and school requested a special school placement for them.
23. In April 2024 the Council commissioned a tutor for Y for ten hours a week. In September 2024 Y’s named school took over the commissioning of the tutor as the Council paid them special educational needs (SEN) funding for Y.
24. The Council issued a draft amended EHC Plan in September 2024. This Plan did not name any school or type of school for Y.
25. Miss X contacted the Council several times when the draft plan was issued as she had questions about it. It took the Council over a month to respond to her.
26. The Council began to send consultations to special schools in September 2024. It sent seven consultations, but none were able to provide education for Y.
27. In May 2025 the Council sent consultations to six independent schools, but none were able to provide education for Y.
28. Available records show Miss X, Y’s named school and tutor contacted the Council consistently between April 2024 and May 2025. They requested an update on the actions following Y’s review, to clarify the funding for the tutor and to request progress updates in finding a school for Y. There was only a very occasional response from the Council.
29. There is no record of an annual EHC plan review taking place in April 2025.
30. Available records show that in May 2025 Miss X contacted the Council several times but received no response from it.
31. In June 2025 Miss X raised a stage one complaint saying that Y had no educational setting and communication with her was poor. The Council issued a complaint response after 34 days, upholding the complaint. The Council apologised for the delay and for its poor communication. It said it would be continuing to consult with schools for Y.
32. In July 2025 Miss X requested the Council consider her complaint at stage two as she was dissatisfied with the response. The Council issued a stage two complaint response upholding the complaint and apologised that it had failed to secure a place of education for Y.
33. We have previously made service improvement recommendations to this Council on other similar cases over the last couple of years. The Council has produced an action plan which sets out the actions it is taking to improve SEN service delivery.

Findings

34. The Council had a duty to make sure Y received the special educational provision identified in Section F of the final EHC plan issued in September 2023. This duty is non-delegable.
35. In April 2024, the Council was aware that Y was not attending the school identified in their plan. The Council reviewed Y’s EHC Plan. It decided the plan should be amended. It failed to process this in a timely manner and did not issue an amendment notice until September 2024, nearly four months later than it should have. The Council issued a draft amended plan two weeks later but has yet to issue a final EHC plan.
36. 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. There was a delay of 15 weeks in issuing the amendment notice and the Council is yet to issue a final amended EHC plan. This is fault and caused Miss X frustration and uncertainty and delayed her right of appeal to the first tier tribunal.
37. The Council also failed to arrange an annual review in April 2025. This was fault which added to Miss X’s frustration and uncertainty.
38. In April 2024 the Council was aware Y was not in school and arranged for Y to study English and Maths with a tutor for two hours a day. This met some of the SEN provision identified in Y’s EHC plan, including being able to learn on an individual basis in a quiet environment. However, it did not meet Y’s need to be with peers to develop social skills.
39. In September 2024 Y’s named school took over funding of the tutor. I have seen no evidence the Council has reviewed these arrangements or properly considered its responsibilities under Section 19, to ensure the education provided by the school was appropriate and sufficient for Y, or under section 42, to ensure Y was receiving the provision set out in their EHC Plan. This was fault and caused uncertainty and distress for Y and Miss X.
40. Available records show that Miss X, Y’s school and tutor frequently contacted the Council between April 2024 and July 2025. The level of communication in response was poor and added to Miss X’s frustration and uncertainty. There was also delay in the Council responding to Miss X’s complaint. This was also fault which added to her frustration.
41. Although Y received some tutoring, Y did not receive all the provision in their Plan and the provision arranged did not meet all of Y’s needs. In particular they missed out on group work and the ability to develop their social skills through working with peers. Where fault has resulted in a loss of education provision, the Ombudsman’s Guidance on Remedies recommends a payment from £900 to £2400 per term taking into account factors including the severity of the child’s SEN, any education that was provided, any loss of appeal rights and whether the school year was a particularly significant one. Given Y received some provision I have recommended a payment of £900 a term.
42. There have been other complaints against this Council during 2025 which recommended service improvements regarding its responsibilities to those with special educational needs. The Council produced an action plan which is being implemented. Because of this I do not think that further service improvement recommendations are necessary. We will continue to monitor the Council’s performance through our casework.

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Agreed Actions

43. Within one month of this decision the Council has agreed to take the following actions:
1. issue a final EHC plan for Y and arrange the overdue annual review.
2. apologise to Miss X and Y for the distress, frustration and missed education caused by the Council’s faults. 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.
3. pay Miss X £3600 to acknowledge the impact of Y’s missed education provision for four terms from April 2024 to July 2025 and Miss X’s lost right of appeal to the first tier tribunal.
4. pay Miss X £500 for the distress and time and trouble caused to her by the Council’s poor communication and complaint handling.

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Decision

44. I find fault causing injustice and the Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman