Summary: There was fault by the Council when it mishandled K’s special educational needs. It took too long to complete the annual review process of her Education Health and Care Plan, so that it took over a year to issue the final Plan. It failed to consider properly its duty to make alternative educational provision when K could not attend school. It did not communicate properly with K’s parent, nor deal with her complaints properly. This meant that K did not have access to a suitable education for over a year. K missed education, and she and her parent were caused distress and frustration. The Council has agreed to apologise to K and her parent; make a symbolic payment in recognition of the impact of its failings; and brief staff on the Council’s duties.

The complaint

1. Mrs X complains about how the Council handled her child’s special educational needs. In particular, she says the Council failed to:
• Make the provision set out in the child’s Education Health and Care (EHC) Plan;
• Organise alternative educational provision when her child became too unwell to attend school;
• Complete the child’s EHC Plan annual review in line with the legal timescales; and
• Communicate with her properly or deal with her complaints properly.
2. Mrs X says that as a result of the Council’s failings her daughter missed out on an education. Her mental health deteriorated and she became isolated. Mrs X says the Council caused her and her daughter significant distress. Mrs X had to reduce her working hours and because so much time had passed, her daughter faced more barriers trying to reintegrate into school life.

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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 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)

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How I considered this complaint

5. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
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 found

The law and guidance

EHC Plans

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.
9. 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)  
10. 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) 
11. 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.
12. 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.

Personal budgets

13. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
14. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
15. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
16. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

Alternative educational provision

17. 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.
18. 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.
19. 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.
20. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
21. 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)
22. 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 or not it will arrange alternative education provision.
• as a matter of good practice, it should communicate this decision to parents. Where a council decides not to arrange alternative education, it should tell parents the expectations about school attendance, and the potential consequences for continued absences.
• where it decides to arrange alternative education, it must ensure the provision meets the individual needs of the child. As a matter of good practice, it should 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:
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) to ensure that issues are dealt with promptly by the right people, and that any complaints and identified and responded to under the relevant policy.

23. 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

24. Mrs X’s daughter, K, has an EHC Plan. The annual review was due in March 2024. K started a new school in the autumn term of 2023. The Council said it would review K’s Plan early because she had started a new school.
25. K found it very difficult to attend the new school. In December, the school gave her a reduced timetable because she had significant absence. By January 2024, the school had given her access to a pastoral space and a 1:1 support worker. There was some improvement in K’s attendance. However, in March, K stopped attending entirely. Mrs X and K were clear she wanted to go to school, but severe anxiety meant she could not.
26. The school held the annual review meeting on 1 July 2024, over four months later than scheduled. The meeting recommended an alternative setting be found. Mrs X told the Council that they had no support and K was fearful of going back to school.
27. Between August and December 2024, Mrs X chased the Council numerous times for an update on the EHC Plan review. The Council told Mrs X that there was a high demand for EHC Plans and it will need to consult other settings. Mrs X asked the Council about the possibility of a personal budget so that she could arrange and pay for K’s education in the meantime. She is also asked about education other than at school (known as EOTAS - where the Council arrange and fund provision outside of school).
28. In December 2024, Mrs X met with the school and the Council. She told them that K was distressed and isolated, her mental health was deteriorating. She was clear that there had been no support from the school or the Council, no pastoral visits or check-ins, no contact from education welfare or attendance officers, and no offers of alternative provision. Mrs X had arranged an hour per week of tutoring for K with a teacher she already knew. She had significant difficulty going into the venue.
29. The Council decided that the school should arrange supportive tutoring for K and review this every three weeks to check on progress. The Council also suggested that an educational psychologist reassess K’s needs.
30. Mrs X contacted the Council at the end of January 2025 because she had not heard from the tutoring service, and there had been no progress on the EHC Plan review. The Council told Mrs X that it was the school’s duty to provide K’s education and it would not get involved. It also told Mrs X that it had to prioritise EHC Plan reviews for children moving between key stages in school.
31. The tutoring service did not visit Mrs X and K until the end of February. Mrs X complained to the Council that her daughter had no education and no support. In March, Mrs X met with the Council. She said the tutoring the school had suggested was not appropriate because it was not academic. K was still attending the tutor that Mrs X had arranged and was hoping to increase this. The Council again said it would arrange for the Educational Psychologist to assess K, it would then do another annual review and consider her request for a personal budget or EOTAS.
32. The Council responded to Mrs X’s complaint setting out the agreed plan. The Council apologised for its delays and lack of communication. It mentioned that the school was working with K on her education but did not say what provision it was making. The Council did not tell Mrs X how she could escalate her complaint. She asked the Council to review its complaints response but it did not progress this.
33. In March 2025, the Council held another annual review. Mrs B also asked the Council to consider her complaint at stage two of its process. In April, the Council refused Mrs X’s request for a personal budget. It said that instead it would consult on a specialist placement for K.
34. At the beginning of May, Mrs X told the Council K wanted to increase the hours of tutoring, but Mrs X could not afford to keep paying this. Mrs X asked the Council for progress on the new EHC Plan. The Council asked the school to make sure it had regular contact with K and Mrs X.
35. Later that month, the school visited K but she could not take part in the meeting due to severe anxiety. Mrs X again asked the Council to help fund more tutoring time. The Council agreed to EOTAS for K. It said that payments for tutoring would start from the beginning of June.
36. Mrs X complained to the Council again. It agreed to reimburse Mrs X for the cost of the tutoring to date. It accepted that the EHC Plan process was taking too long and it offered to pay Mrs X an additional £250, and K £50 in recognition of the impact of the delays on them both. Mrs X said that this did not reflect the impact on them of the Council’s shortcomings.
37. Although the Council said it would fund the tutoring from 2 June, Mrs X had difficulty getting this arranged. She contacted the Council several times to say that this was difficult for her to afford. The Council did not take over payments until August.
38. At the end of July, the Council issued a draft EHC Plan naming EOTAS as the educational provision. However, K wanted to try school again. In September 2025, the Council issued a draft EHC Plan naming a school that K had visited and wanted to try. It issued the final Plan in November. K started at the new school and continues to access a severely reduced timetable there.

Was there fault by the Council causing injustice to Mrs X and K?

39. The Council did not complete the annual review of the March 2023 EHC Plan on time. The annual review was due to be completed by 20 March 2024 (so the review meeting should have been held by 21 February). In fact, the Council had suggested an early review because K had started a new school. Instead the Council did not hold the review meeting until 1 July 2024. This was nearly 19 weeks late.
40. Having held the annual review meeting on 1 July, the Council should have notified Ms X of whether it intended to amend, maintain or cease the Plan by 29 July 2024 and as it intended to amend, it should have issued the final amended Plan by 23 September 2024. Instead the Council did not issue a final amended Plan until November 2025. This was over a year late.
41. I appreciate that Mrs X changed her preference from EOTAS to the school, but the Council did not issue the draft EHC Plan naming EOTAS until the end of July 2025. Again a year later, that it should have.
42. I also appreciate that the Council had to update its assessment of K’s needs when she could no longer go to school. However, this work should have started a lot sooner.
43. Throughout the delay, the Council told Ms X that it had to prioritise the EHC Plan reviews for pupils that were approaching a key transition in schools. However, the Council had a legal duty to complete the process on time. The delay here is significant. It caused distress and frustration to K and Mrs X, and meant that Mrs X found it harder to approach possible education providers and schools because she did not have an up-to-date EHC Plan to allow a provider to decide if it could meet K’s needs. Mrs X also had no right of appeal until the Council issued the final EHC Plan. This meant that when the Council initially refused EOTAS and a personal budget, but did not issue a Plan on that basis, Mrs X had no right to appeal this.
44. The Council did not properly consider its duty make alternative education provision when K could no longer access her education at school.
45. K had difficulty going to school from September 2023. Ms X told the Council about this in October 2023. Between October and December 2023, the school gave K a reduced timetable. From January 2024, the school also offered access to a pastoral space, 1:1 Support with a support worker, and a weekly reflection session. By March 2024, K stopped attending school altogether.
46. The Council should have been aware that K was not accessing her education. This is because, Ms X told it early on she was having difficulty and had the Council completed the early review of the new provision as it had said or indeed, the scheduled annual review of the EHC Plan on time, it would have been aware that K was not in school.
47. The Council was clearly and formally notified of K’s absence at the annual review at the beginning of July 2024. There is no evidence that the Council considered alternative provision until November 2024, and in December, the school suggested tutoring to Mrs X. The tutor did not make contact with Mrs X until the end of February 2025. By this time, K had accessed very little education since starting at the school in October 2023 and had been out of school for nearly a whole year.
48. Mrs X told the Council that the tutoring was not academic enough and was not suitable for K. The Council decided to review the EHC Plan again, and arrange a reassessment by an Educational Psychologist. The Council may have been right to do so, but it missed the opportunity to also consider whether K could access suitable education and whether it had a duty to make provision, until it agreed to fund an EOTAS package in June 2025.
49. Mrs X had regularly asked for help and had described how desperate the situation was and that there had been no support, very little contact from the school or the Council, no alternative provision, and no pastoral support.
50. The Council was wrong to tell Ms X that it is the school’s duty to provide an education and the Council does not have to be involved. The Council can ask the school to arrange alternative provision but the duty remains with the Council. There is no clear evidence that it properly considered its duty.
51. 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.
52. Had the Council considered its duty properly in the Autumn 2023 term, when K had been out of school for 15 days, it may have decided that the school was taking action to reintegrate K, and that this plan could succeed. However, even if the Council had decided not to intervene at that stage, we would have expected it to have kept this under review.
53. Had the Council considered its duties properly, it is likely that it would have decided in March 2024, the school’s efforts had not worked, and K could not access a suitable education. From this point, the Council should have made alternative educational provision.
54. The Council’s policy says that it will make clear the reasons why it refuses a personal budget to fund educational provision, so that the applicant can understand the decision. Mrs X applied for a personal budget so that she could use this as a direct payment to arrange K’s education. The Council refused this and said instead it would seek a specialist place for K. In response to my enquiries the Council has said there is no right to appeal this decision. However, the government guidance says if the Council refuses a request for a direct payment it must set out its reasons in writing and tell the parent of their right to request a formal review of the decision. Had the Council issued an EHC Plan for K, then Mrs X could have appealed this to the Tribunal, asking that it consider direct payments instead. However, the Council did not do this for many months and so it should have allowed her the right to ask for a review of its refusal to allow direct payments.
55. The Council also had a duty to make sure that K could access the provision set out in her EHC Plan. The Council did not do this.
56. The Council responded to Mrs X’s complaint but did not tell her how to escalate this to stage two of its process. Mrs X asked for this but the Council did not process her request for a stage two investigation. Mrs X spent time chasing a response to her complaint. Mrs X made a further complaint and the Council considered that at stage two of its process. The Council did not handle Mrs X’s complaint in accordance with its process and this put her to extra time and trouble trying to put matters right.
57. The Council’s failings meant that K missed out on a suitable education to which she was entitled from March 2024 to June 2025, when the Council agreed to fund an EOTAS package. The lack of education and lack of support also caused K and Mrs X distress. Mrs X has described the deterioration in K’s mental health and her isolation. She was under enormous pressure herself, and had to reduce her working hours to care for K. Mrs X is clear that the long delays and time without educational provision has meant that her daughter had faced additional barriers trying to return to learning.
58. The Council’s delay in arranging the finance for tutoring after June 2025 caused further distress, frustration and potentially, financial hardship.

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Action

59. The Council will within one month of the date of this decision:
• Apologise to Mrs X and separately to K (by an appropriate means to be agreed with Mrs X. 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 I have recommended in my findings.
• Pay to Mrs X a symbolic amount in recognition of K’s missed education from March 2024 to June 2025 (around four terms). The Council should pay £7,200 (£1800 per term missed or part thereof), less the amount that it reimbursed Mrs X for the tuition she had paid for up to 2 June 2025.
• Pay to Mrs X £300 in recognition of the distress and frustration it caused her when it took too long to reimburse her the cost of tuition she had paid, to complete the EHC Plan review process, and when it mishandled her complaint.
• Share with relevant staff the Ombudsman’s 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)
• Remind relevant staff by way of a staff briefing or similar, that the Council remains responsible for making decisions about alternative educational provision, even when the child is enrolled at a school.
60. The Council should provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman