Summary: We found fault with the Council delaying for ten months outside the statutory timescales in reviewing Ms X’s child’s Education, Health and Care Plan. We also found fault with the Council’s handling of Ms X’s complaint. The Council agreed to apologise to Ms X and provide a symbolic financial gesture for the frustration and distress caused to her and potential lost opportunity caused to her child. The Council also agreed to issue an amended Education, Health and Care Plan for Ms X’s child.

The complaint

1. Ms X complained the Council failed to ensure her child had access to suitable support from their Education, Health and Care Plan resulting in them being unable to attend school.
2. Ms X complained about the Council naming a mainstream school in her child’s Education, Health and Care Plan.

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The Ombudsman’s role and powers

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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
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. I have investigated Ms X’s complaint about her child’s lack of access to suitable education from April 2024 until February 2026.
9. I have started my investigation from April 2024 because this is the date Ms X moved into the Council area. Any issues before this date would be a complaint for the Council of her previous residence.
10. I have ended my investigation in February 2026. This is because this is the date the Council provided the full up-to-date information to the Ombudsman and we issued our draft findings. Any issues from March 2026 would be the subject of a new complaint.
11. I have not investigated Ms X’s complaint about the content of her child’s EHC Plan, including the Council’s decision about what educational placement to name. This is because the content of a child’s EHC Plan is appealable to the Tribunal as the appropriate body to consider any such complaints. 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.

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How I considered this complaint

12. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
13. Ms X and the Council had an opportunity to comment on my draft decision before I made a final decision.

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What I found

Rules and regulations

EHC Plan 

14. 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. 
15. 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)  

Transfer of EHC Plan between councils 

16. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  
17. The Council says when a child has an EHC Plan any change of school must be discussed with the Special Educational Needs Team. When a child moves into Somerset they are still required to attend the educational setting named in Section I of their EHC Plan even after their move. However, where this is impractical, the Council says it must place the child temporarily at an appropriate setting until the EHC Plan is reviewed and a permanent setting named.

Reviewing EHC Plans

18. 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 cease to maintain 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) 
19. 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.
20. 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.
21. 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.

Section 19 duty

22. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.

Establishing a section 19 duty

23. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this, and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
24. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
25. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.

Good practice guidance

26. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025)
27. Our guidance says that councils should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether it will arrange alternative education provision;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

28. 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.

Council complaints process

29. The Council runs a two stage complaints process.
30. At stage one the Council says it will acknowledge a complaint within five working days and provide a full response within a maximum of twenty working days of the acknowledgement.
31. The Council says a person can request consideration of their complaint at stage two if they are not happy with the stage one response. The Council says at stage two it will either let the person know if there is grounds for consideration of their complaint further and provide timescales for its response or direct a person to the Local Government and Social Care Ombudsman.

What happened

32. In February 2024, the previous council produced a Final EHC Plan for Ms X’s child, Y. This Council named a mainstream primary school in Section I and included quantifiable provision in Section F:
• 1:1 support across the whole school day.
• 2:1 support available in extreme circumstances for Y’s safety and the safety of other children with notable reference to when changing Y’s nappy.
33. All other support in Y’s EHC Plan was designed to be included within a school day to tailor Y’s education to meet their needs and were not specific about time or delivery.
34. In March 2024, Ms X told the Council she was moving into their area and advised Y had an EHC Plan. Ms X said she wanted a specialist school placement for Y but, if not possible, named her preferred mainstream school. Ms X and the Council discussed the proposed moved and confirmed Ms X’s proposed move in date.
35. Following Ms X moving into the Council’s area in April 2024, it started consultations for a school placement for Y, including Ms X’s chosen school.
36. The Council sought to put in place interim 1:1 tutoring for Y in the absence of a school placement. This provision started in June 2024 for 8 hours each week.
37. In November 2024, the Council named a mainstream primary school for Y with two days each week Alternative Provision of education. The mainstream primary school refused to enrol Y at the school but Y’s Alternative Provision of education continued.
38. In February 2025, Y attended a taster session at the school named by the Council. The school continued to deny Y’s enrolment.
39. In March 2025, Ms X raised a formal complaint with the Council. Ms X said:
• Y has been out of education since moving into the Council area.
• The Council had not reviewed Y’s EHC Plan since its production in February 2024.
• She was physically unable to take Y to the school the Council named for only 1 hours education because the distance was too great.
• She understands the Council has now drawn up a bespoke package of education for Y including attending the mainstream primary school for part of the week and Alternative Provision of education for part of the week. Ms X said she contacted the primary school to arrange a start date and it refused to provide one saying they cannot meet Y’s needs.
• She wanted specialist provision for Y but the Council has rejected this.
40. The Council provided a stage one complaint response in April 2025. The Council said:
• It can offer a place a specialist school from September 2025 for assessment and a potential placement.
• It would complete an annual review of Y’s needs following assessment at the specialist school and would then consider updating the EHC Plan to name this placement or continue to try to find a suitable school placement.
• The specialist school may offer transition mornings after the May 2025 half-term.
• If the specialist school could not offer transition mornings it would arrange some Alternative Provision of education for Y.
• It apologised for Y’s lack of provision and its plan moving forwards would ensure provision is put in place.
41. Ms X sought consideration of her complaint at stage two because of the Council’s previous failings to put in place provision leaving Y without education.
42. The Council provided a stage two complaint response in May 2025. The Council said:
• It upheld Ms X’s complaint about poor communication and delays with Y receiving their EHC Plan provision and an educational placement.
• It had a plan moving forwards about how it would provide suitable provision for Y.
• It has recently completed an organisational restructure of its education service with significant changes due to take place to improve service over the coming months.
43. At the end of the academic year, Y attended 12 sessions (six full days) at the specialist school as part of the transition package. The Council arranged for 1:1 support for Y during these sessions.
44. In September 2025, Y started to attend the specialist setting.
45. The Council held an annual review for Y’s EHC plan in October 2025 and decided to amend Y’s EHC Plan in December 2025. The Council had not issued an amended EHC Plan for Y by the end of February 2026.

Analysis

Transfer between councils

46. When Ms X moved into the Council area in April 2024, Y had an EHC Plan which said that Y would attend a named mainstream school. The previous council transferred Y's EHC Plan to this Council within 15 working days and the Council started consultations for Y’s school placement within five working days. The Council acted appropriately to get relevant information about Y and start the consultation process for a new school placement without delay. I do not find fault.
47. The Council recognised it would not find a school placement for Y within a suitable timescale and agreed to provide 1:1 tuition meanwhile. The Council made this decision just outside 15 working days of Ms X moving into the Council area. The Council made this decision because it did not consider it was suitable for Y to continue to attend the placement named in their EHC Plan by the previous council. The Council acted appropriately and in a timely manner with its decision making and followed its policy for a change of school placement for children with an EHC Plan. I do not find fault with the Council.

Education and EHC Plan provision since June 2024

48. From June 2024, the Council provided Alternative Provision of education for Y because of the lack of school placement. The Council was only required to provide Alternative Provision of education for Y when they became statutory school age, which was near the end of July 2024.
49. The Council provided eight hours of provision for Y each week from June 2024 to the end of the academic year 2024/2025. Y has shown increasing engagement with this Alternative Provision of education. Y attended about 50% of the sessions on offer from June 2024 to the end of the 2023/2024 academic year increasing to above 80% throughout the academic year 2024/2025.
50. Given Y showed increasing engagement with this Alternative Provision of education this shows it was accessible to Y. Y’s attendance over time increased also shows the eight hours at first on offer was too high and Y gradually built up to being able to attend the full provision on offer. This supports the Council’s decision about how much, and delivery method of, Alternative Provision of education on offer to Y.
51. The Council also had a duty to ensure Y had access to their EHC Plan provision while receiving education through Alternative Provision of education. The only quantifiable provision in Y’s EHC Plan was for provision of 1:1 and 2:1 support. Given that all Y’s Alternative Provision of education was delivered on a 1:1 basis this means the Council has met the 1:1 quantifiable EHC Plan provision. However, the Council has at no point fulfilled the 2:1 provision on offer; this was fault. While the Council has not fulfilled the 2:1 quantifiable provision, this does not appear to have impacted on Y’s ability to access the Alternative Provision of education. This means there is a lack of significant injustice for this fault. The Council has already recognised its failure to provide this full provision and apologised for this within its complaint response, I do not consider further action is needed from the Council to address this.
52. The Council named what it considered a suitable school placement for Y in November 2024. This was a mainstream school placement and consistent with the EHC Plan produced by the previous council. However, both the school and Ms X disputed this placement with Ms X seeking a specialist placement. The Council agreed to place Y at Ms X’s chosen specialist placement but it did not have availability until September 2025. The Council arranged for taster sessions to help Y’s transition to this school at the end of the 2024/2025 academic year.
53. The Council has acted in line with Ms X’s wishes over her chosen school placement and ensured suitable transition to this school when a place became available. The Council continued to provide Alternative Provision of education in the interim in a format and amount suitable for Y. I do not find fault with the Council.

EHC plan review

54. The previous Council produced the first EHC Plan for Y in February 2024. This meant the Council had until February 2025 to complete an annual review meeting and tell Ms X of its intention to maintain, amend or cease Y’s EHC Plan. The Council only completed this action in December 2025. This was ten months outside the statutory timescales; this was fault.
55. This fault caused distress and frustration for Ms X and a potential lost opportunity for Y in receiving up-to-date educational provision.
56. By the end of February 2026, the Council had not produced an amended EHC Plan for Y. The Council had eight weeks from its letter in December 2025 to issue an amended EHC Plan for Y. Failing to do so by the end of February 2026 was fault.

Complaint handling

57. The Council issued a stage one complaint response within 20 working days of Ms X’s first complaint, let alone the Council’s acknowledgment of this. The Council has responded within its complaint timescales and I do not find fault.
58. The Council did not explain to Ms X the complaint response timescales for her request for escalation to stage two. The Council took 33 working days to provide its stage two response at stage two. While the Council has no set timescale for response at stage two, this response was beyond the maximum timescale at stage one and the Council provided no indicative response timescale to Ms X. The Council failed to handle Ms X’s complaint in line with its policy; this was fault causing Ms X frustration.

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Action

59. Within one month of the Ombudsman’s final decision the Council will:
• Provide an apology to Ms X for her distress and frustration and the potential lost opportunity for her child caused by the Council’s ten-month delay outside the statutory timescales in reviewing her child’s Education, Health and Care Plan and for failing to handle Ms X’s complaint in line with its policy. 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 the apology I have recommended in my findings.
• Provide a symbolic payment to Ms X of £500 for her distress and frustration and the potential lost opportunity for her child caused by the Council’s ten-month delay outside the statutory timescales in reviewing her child’s Education, Health and Care Plan.
• Issue an amended Education, Health and Care Plan for Ms X’s child following the annual review in October 2025 and subsequent decision to amend letter in December 2025.
60. The Council should provide us with evidence it has complied with the above actions.

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Decision

61. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman