Summary: The Council was at fault for failing to carry out an annual review of Miss X’s child Y’s Education, Health and Care (EHC) Plan. The Council was also at fault for failing to ensure Y received a suitable education and the specialist provision in their EHC Plan. The Council has agreed to apologise and make a payment to remedy the injustice caused.

The complaint

1. Miss X complained the Council failed to:
• Carry out an annual review of Y’s Education, Health and Care (EHC) Plan;
• Ensure Y received the specialist provision in their EHC Plan; and
• Ensure Y received a suitable education.
2. Miss X said this caused distress, frustration and uncertainty.

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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. 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)
5. Under our information sharing agreement, we will share this decision statement with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

6. 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)
7. Some of Miss X’s complaint is late. She said there were delays in the EHC needs assessment process which meant the Council issued the final EHC Plan six months out of timescale. The Council issued this in March 2024 but Miss X did not complain to us until June 2025. It was open to Miss X to complain to us earlier about the events that occurred between September 2023 and March 2024. There are no good reasons to exercise discretion to investigate this period. Therefore, I have investigated from June 2024.

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How I considered this complaint

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

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. 
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)  

Annual reviews

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. Following the review meeting the council must issue a decision to either 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) 
13. 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.
14. 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.
15. 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

16. Section 19 of the Education Act 1996 says that the council 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.

Council’s complaints policy

17. The policy states it will acknowledge the stage one complaint within five working days and respond within a further 10 working days.
18. The policy states it will acknowledge the stage two complaint within five working days and respond within a further 20 working days.

What happened

19. Miss X has a child Y with special educational needs and an EHC Plan in place. As of June 2024, Y was attending a mainstream school and was entitled to the following specialist provision as set out in their EHC Plan:
• Individual or small group support to enable Y to catch up on work missed;
• A personal tutor (who is a member of school staff) who can develop a trusting relationship with Y and who is available in school to provide support as necessary, available for up to one hour a day;
• Two adults in school with whom Y can form positive and trusting relationships through daily contact and discussion; and
• Weekly small group activities (30-60 mins) focussed around an activity of interest to Y, to develop their social communication skills with peers.
20. In June 2024 and again in December 2024 Miss X raised concerns that Y was not receiving the section F provision.
21. Miss X then requested an emergency annual review. In January 2025, the school held a meeting with Miss X but this was not an annual review as the Council was not aware of it.
22. In March 2025, Miss X made a stage one complaint saying the following:
• Due to considerable staff changes at the school, Y has not received the section F provision in their EHC Plan since June 2024;
• There had been no annual review of Y’s EHC Plan; and
• When Miss X tried to arrange an emergency annual review meeting, the school did not follow the correct processes, so it did not qualify as an annual review.
23. The same month, the school permanently closed and Y was left without an educational placement. The Council said it offered Y interim tuition on multiple occasions whilst it sought a new placement, but Miss X rejected this. It also said it proposed four different dates to hold the annual review in June and July but these were all rejected by Miss X too.
24. In June 2025, the Council issued a letter saying the following:
• It had not been able to secure a school place for Y yet;
• It had offered to put interim provision in place;
• If Miss X does not take up the offer of provision, she will need to electively home educate Y; and
• If she does not do either of these, she may be subject to legal proceedings.
25. The Council said the letter was a stage one complaint response but it is not titled as this and neither does it tell Miss X how she can escalate her complaint to stage two.
26. In early July 2025, Miss X escalated her complaint to stage two and requested alternative educational provision. The same month Miss X bought the matter to us.
27. In late October 2025, the Council put in place 18 hours of educational provision a week comprising of the following:
• Four hours of English language and literature;
• Four hours of Maths;
• Six hours of science;
• Two hours of Art and Music;
• One hour of P.E; and
• One hour of Careers/Future Preparation.
28. If Miss X is unhappy with the provision in place from October 2025, she will need to make a new complaint to the Council.
29. In February 2026, the Council issued its final complaint response. It said it did not uphold Miss X’s complaint regarding loss of section F provision as it had delegated the delivery of provision to the school. It did not uphold Miss X’s complaint about annual review delays. Whilst the school referred to the January 2025 meeting as an annual review, it said it was not formally recorded as such on the Council’s system. It said the planned April 2026 annual review will be conducted in accordance with the statutory guidance.

The Council’s response to our enquiries

30. The Council said it accepted that since June 2024 section F provision has been missed or inconsistently delivered. This included 1:1 and small group support, structured catch-up learning and pastoral and attendance support. It said this was due to school staffing changes, insufficient oversight by the Council and a breakdown in the school-parent relationship.
31. The Council accepted it did not arrange an annual review of Y’s EHC Plan in 2025 or 2026. The Council said this was due to it not being able to treat the January 2025 meeting as a lawful annual review as well as a breakdown in the school-parent relationship.

My findings

Specialist provision

32. Y has an EHC Plan in place and the Council had a non-delegable duty to make sure Y received the special educational provision set out in section F of the Plan. The Council has accepted that between June 2024 and March 2025 section F provision as set out in paragraph 19 was missed or inconsistently delivered. This was fault which meant Y went approximately two terms without all of the provision they required. As a result, Y has missed out on a suitable education.
33. We recently found fault with the Council on a similar case. Following this case, the Council agreed to remind relevant staff of the importance of ensuring appropriate action is taken to ensure consistent delivery of section F provision for children with Education, Health and Care (EHC) Plans, where it is identified by the Council there are difficulties or inconsistencies with the provision being delivered. Therefore a further service improvement is not required.

Annual review

34. The Council must complete the annual review within 12 months of the first EHC Plan and within 12 months of any later reviews. Y’s last final EHC Plan was dated March 2024 so it should have completed an annual review of the Plan by March 2025. Given that Y’s school permanently closed at the end of March and it had only offered interim tuition in the meantime, it was particularly important that it held the annual review in a timely manner so it could name a new placement in Y’s EHC Plan.
35. To date, the Council has not held an annual review which was fault. This has caused Miss X distress, frustration and uncertainty and significantly delayed her appeal rights.
36. We recently found fault with the Council on a similar case. Following this case, the Council agreed to provide an update about the steps it is taking to improve delays in its Special Educational Needs and Disability (SEND) service. This will help to ensure oversight of the actions the Council says it is taking to improve the service. Therefore a further service improvement is not required.

Section 19

37. Miss X originally refused the offer of alternative provision. However, after Miss X requested this in July 2025, we would expect the Council to put this in place urgently given that it was already aware Y had no school placement. The Council should have put this in place by the start of the new school year, September 2025, at the latest. The Council did not put this in place until late October which was a delay of seven weeks and fault. This caused Y to miss out on a suitable education.
38. We recently found fault with the Council on a similar case. Following this case, the Council agreed to create an action plan addressing delays in considering section 19 and implementing alternative provision. Therefore a further service improvement is not required.

Complaint handling

39. Miss X made a stage one complaint in early March 2025. The Council should have responded within 15 working days and by the end of March at the latest. The Council did not respond until June 2025 which was a delay of two months and fault.
40. The Council said the letter dated June 2025 was a stage one complaint response but it is not titled as such neither does it tell Miss X how she can escalate her complaint to stage two. It also does not address any of the points Miss X raised in her complaint which was fault.
41. Miss X escalated her complaint to stage two in early July 2025. The Council should have responded within 25 working days and by early August 2025 at the latest. The Council did not respond until February 2026 which was a delay of six months and fault.
42. The faults identified have caused Miss X distress, frustration and uncertainty. It was also a missed opportunity for the Council to resolve the issues earlier.
43. We recently found fault with the Council on a similar case. Following this case, the Council agreed to consider our Complaint Handling Code and tell us what action(s) it will take to improve the way it deals with complaints. Therefore a further service improvement is not required.

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Action

44. Within four weeks of the final decision, the Council has agreed to:
1. Apologise to Miss X for the injustice caused by the faults identified within this decision statement. 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.
2. Pay Miss X £1200 to remedy the injustice caused by Y’s missed and inconsistent section F provision between June 2024 and March 2025.
3. Pay Miss X £600 to remedy the injustice caused by Y’s loss of education for a seven week period in September and October 2025.
4. Pay Miss X £500 for the distress, frustration and uncertainty caused by the Council’s failure to carry out an annual review and the significant delay in responding to her complaint.
5. Arrange and hold the annual review of Y’s EHC Plan. Should the Council decide to amend Y’s EHC Plan, it will issue the amended final EHC Plan within a further eight weeks.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. 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