Summary: Mrs X complained the Council failed to provide suitable alternative provision when her child was out of school and failed to issue her child’s final amended Education, Health and Care Plan within the statutory timescales. We find the Council at fault for not arranging alternative provision and for failing to issue a final amended Plan. The Council has agreed to apologise, make a symbolic payment to Mrs X, issue the final amended Plan, and provide an update on the actions it is taking to improve its annual review processes.

The complaint

1. Mrs X complained the Council failed to provide her child, Y with suitable alternative provision whilst they have been out of school since September 2024.
2. Mrs X also complained the Council did not issue Y’s final amended Education, Health and Care Plan following their annual review in June 2024, or emergency review in October 2024.
3. She says this meant Y missed out on education and has impacted the family’s mental health.

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The Ombudsman’s role and powers

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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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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How I considered this complaint

8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. Mrs 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

Relevant law and legislation

EHC Plans

10. 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. 

Maintaining the EHC Plan

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)  

Reviewing the EHC Plans

12. 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) 
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 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

14. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
15. 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.

What happened

16. Y has special educational needs and an Education, Health and Care (EHC) Plan. In September 2022, Y started to attend a specialist setting (School A).
17. In June 2024, the Council held Y’s annual review. The review records show the Council intended to amend the EHC Plan. However, it did not issue a notice to amend, a draft Plan, or a final amended Plan following the review.
18. In September 2024, Mrs X told the Council that Y would not be returning to School A because she considered the placement unsafe.
19. In October 2024, an emergency annual review took place, School A said it could no longer meet Y’s needs. Mrs X requested that School B be named, and the Council sent a consultation to School B the same day.
20. The next day, the Council wrote to Mrs X, stating its intention to amend the EHC Plan and enclosing a draft Plan. It invited her comments.
21. The Council also emailed School A stating that it was responsible for providing alternative provision.
22. Mrs X sent comments on the draft shortly afterwards and later submitted further proposed amendments. She also raised concerns that the existing EHC Plan did not accurately reflect Y’s current needs but was still being used for consultations.
23. School B later responded that it could not meet Y’s needs.
24. Four weeks later, the Council sent consultations to three further schools. One responded quickly to say it could not meet need. The remaining two did not respond.
25. In January 2025, the Council sent a further consultation to another school, which promptly replied that it too could not meet Y’s needs.
26. Later that month, Mrs X complained to the Council that Y had received no education or alternative provision since September 2024.
27. In February, School A again told the Council it could not meet Y’s needs and confirmed it would cease the placement.
28. Later that month, the Council issued its stage one complaint response. It accepted it had failed to maintain oversight of Y’s provision, said it was seeking a new placement, and stated alternative provision would be arranged as soon as possible. It offered Mrs X £100 for communication failings and £1,800 for missed education between October and February.
29. In April, Mrs X escalated her complaint as alternative provision had still not been arranged.
30. In May, the Council agreed an Education Otherwise Than At School (EOTAS) package for Y and Y started to receive some alternative provision.
31. Later that month, the Council issued its stage two complaint response. It apologised for the continued failure to arrange provision and offered £700 for missed education between February and May, and £100 for Mrs X’s distress.
32. In June, Mrs X brought her complaint to the Ombudsman.
33. During my investigation, Mrs X told me that in November 2025, the Council agreed to complete a reassessment of Y’s needs and issue an updated EHC Plan. She also told me the Council had offered her a further £600 for the delay issuing the EHC Plan, and £200 for poor communication.

My findings

Failure to provide suitable alternative provision

34. Although the Council may ask a school or another body to arrange alternative provision on its behalf, it retains the legal responsibility and must maintain oversight to ensure its duties are fulfilled.
35. Mrs X notified the Council in early September 2024 that Y would not be returning to School A. At that point the Council should have considered its duty to provide alternative provision. It did not do so until the emergency review in October. On the balance of probabilities, had it considered the matter in September, it is likely it would have concluded that Y required alternative provision.
36. The Council accepted in February 2025 that it had failed to maintain oversight of Y’s education and that Y had received no provision. It offered £1,800 for the missed education between October and February. After further delays, it offered an additional £700 for the period February to May.
37. I have considered whether the Council’s remedy is in line with the expectations in our Guidance on Remedies. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2400 per term to acknowledge the impact of that loss. The figure we recommend takes account of the severity of the child’s special educational needs, whether any provision was made, whether this was a key year of education, and any loss or delayed right of appeal to tribunal.
38. Given Y’s significant needs, their age, year at school, and the failure to provide any education or special educational provision, a higher remedy of £2000 per term is justified.

Delay in issuing the final amended EHC Plan

39. The Council decided in June 2024 that Y’s EHC Plan required amendment but failed to notify Mrs X, issue a draft, or issue a final amended Plan. This was fault.
40. Following the October 2024 emergency review, the Council notified Mrs X of its intention to amend the Plan within the required timescale but again failed to issue a final amended Plan. This was further fault.
41. The final amended Plan should have been issued within 12 weeks of the June 2024 review, so by late August 2024. No final Plan has been issued, more than 15 months after the emergency review. This significant delay is fault. It left Y without necessary support, denied Mrs X her right of appeal, and caused avoidable distress and uncertainty.
42. The Council has since agreed to reassess Y and issue a new EHC Plan and has offered £600 for the delay and £200 for communication failures. I have considered whether the Council’s remedy is in line with the expectations in our Guidance on Remedies. I find this remedies the distress and uncertainty, but it does not address any special educational provision Y would have received earlier had the Plan been issued on time.

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Action

43. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to:
• apologise to Mrs X in line with our guidance on Making an effective apology; and
• pay Mrs X £2,300 to recognise Y’s loss of education between September 2024 and May 2025. This amount is in addition to the remedy already offered by the Council.
44. Within three months of the date of my final decision, the Council has agreed to:
• issue Y’s new final EHC Plan; and
• provide an updated report on its progress in improving annual review decision-making and issuing amended Plans within statutory timescales. This update should include:
1. current performance data on issuing amendment notices and final amended EHC Plans within the 12-week timescale;
2. actions taken since its previous update to the Ombudsman in May 2025; and
3. progress against the Council’s stated target to meet statutory decision-making timescales for at least 80% of annual reviews by April 2026.
45. Once the final amended EHC Plan is issued, the Council should calculate and provide a remedy, in line with our Guidance on Remedies, for any special educational provision Y would have had sooner but for the delay. This should cover the entire period of delay from late August 2024 until the date the final amended Plan is issued and may involve different levels of remedy for different stages of the delay, depending on the provision Y should have been receiving at each point.
46. The Council should provide us with evidence it has complied with the above actions.

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Decision

47. 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