Summary: Mrs X complained the Council left her child without a formal Education Health and Care Plan after an emergency review took place in 2023. As the Council issued no final plan, no new school could be named and Mrs X’s child lost out on education. This in turn severely affected their mental health. We found the Council at fault, as it failed to fully provide the provision set out in the plan which caused Mrs X injustice. The Council should make payment and apologise to Mrs X.

The complaint

1. Mrs X complains that after an emergency review took place in 2023 the Council took almost two years to issue a revised Education Health and Care (EHC) Plan. As the school named on the EHC Plan would not admit her child, she says that they were effectively left without education during their GCSE year. She confirms the online and tutor provision provided was unsuitable to meet the needs of her child listed in their EHC Plan. Furthermore, she told the Council about this.
2. Mrs X says that this severely affected their child’s mental health as well as impacting her family. This included having to take time off work as their child was not in school. She also reports the communication with the Council was poor throughout and contributed towards the delays.

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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 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. Although elements of this complaint begin in 2023 and would normally be outside our jurisdiction due to time constraints, I have decided to exercise discretion. This is because the injustice stemming from the failure to complete an EHC review was only resolved when the Council issued an EHC Plan in 2025. It is therefore fair to consider the injustice overall.

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
8. I have also considered the relevant statutory guidance, as set out below. In addition, I have considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

9. 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.
10. 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)  
11. 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) 
12. 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.
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.
14. 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.
15. For young people with an EHC Plan, preparation for transition to adulthood must begin from year nine (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate.  
16. The council must review and amend an EHC Plan in enough time before a child or young person moves between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfers are: 

• early years provider to school;  
• infant school to junior school;  
• primary school to middle school;  
• primary school to secondary school; and  
• middle school to secondary school.  

17. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

What happened

18. In the winter term of 2023, Mrs X says that her child’s school reported to both her and the Council that it could not provide education for her child any longer. She says an emergency review took place for her child’s EHC Plan which had remained unchanged since 2020.
19. Mrs X says the Council told her the review should be completed by May 2024 however it did not meet this deadline. In June 2024 the Council proposed the school re-admit Mrs X’s child however the school had previously told the Council that this was not possible.
20. The Council say that online provision was provided by the school from the winter term of 2023 through to the end of the academic year in the summer of 2024. Also, a timetable was put in place with a tutor visiting.
21. Mrs X reports the Council agreed to look at alternative provision from September 2024 however nothing was arranged. This led to a formal complaint in November 2024.
22. The Council say that after an education placement during the winter term of 2024 ended, no education provision was provided due to a delay in the tendering process to arrange alternative provision.
23. Mrs X escalated the complaint to her Member of Parliament (MP) in March 2025, and the Council apologised and confirmed that it would investigate.
24. The Council say that in February 2025, tutoring and mentoring began. Mrs X disputes the start date and explains the tutor only provided five or six sessions before having training and then going off sick before this was stopped by June 2025. She says that no mentoring sessions took place despite the Council promising this.
25. Mrs X says that she had to chase the Council for a response. She also had to approach her MP again before the Council responded. The Council issued a revised EHC Plan in September 2025.

Analysis

EHC Plan review

26. The Council must review an EHC Plan at least once per year. The last substantive review of the EHC Plan had taken place in 2020. Reviews took place in 2021 and 2023 which kept the existing plan in place. However, the school named on the review wrote to the Council to say that it could no longer provide educational provision.
27. I consider it correct the Council agreed to carry out an emergency review following the discovery of this information. However, I find fault that it took it almost two years to complete this. Under the regulations set out above, the Council had 12 weeks in total following a review meeting to produce and amend the plan.
28. I note the Council say there were issues with the plan. However, the onus was on it to complete the plan within the timescales set out above. This would have then allowed Mrs X the opportunity to use the SEND Tribunal if she disagreed with the contents of the plan.
29. By failing to complete the review, it meant that no new school could be named to provide education provision for Mrs X’s child. The fault impacted Mrs X by causing her unnecessary distress in believing the Council were not treating her fairly, with added distress in her child not attending school. She has commented the Council’s communication was poor throughout and it missed review meetings which further delayed matters.
30. I find the Council could have taken greater ownership over this matter and ensured the review was completed sooner. If it had this could have prevented some of the distress that Mrs X felt over this.
31. I therefore find the Council should apologise to Mrs X and her child for the distress this issue has caused her. Given the time that this distress lasted due to the delay in completing the review, I have also found the Council should recognise this through the award made.

Educational provision

32. The Council’s responsibility to provide the provision set out in the EHC Plan is non-delegable. Therefore, when Mrs X’s child stopped attending school it had the responsibility to ensure that they still received the provision set out in the EHC Plan.
33. After Mrs X’s child stopped attending school in the winter term of 2023, I note that some online provision was provided by the school. In the spring term of 2024 online provision and a tutor was provided.
34. Mrs X confirms that in September 2024 her child started a key year of education as they were due to sit their GCSEs. The Council says that it at first offered a placement however after this I note that no education was provided. When provision was provided it was limited according to Mrs X.
35. In the EHC Plan dated September 2025, it also states the online education provision provided was limited. I consider the lack of appropriate full-time education to have caused an injustice to Mrs X.
36. Our guidance on remedies sets out the award suitable per term when a Council has failed to meet its responsibilities fully in terms of educational provision. I have considered that some provision was attempted by the Council. It has provided evidence of trying to secure another school placement. However, I must also consider the child was in a key year of school and the impact that this had on them considering their needs set out in the EHC Plan.
37. I therefore find an award of £2,000 per term is appropriate given the circumstances. To confirm this covers the winter term of 2023, the spring, summer and winter terms of 2024 and the spring and summer terms of 2025. By the winter term of 2025, Mrs X’s child was back in education, attending college.
38. The Council is already on an agreed action plan with the Ombudsman to improve its service about the review process of EHC Plans. I have therefore not recommended any further service improvements.

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Action

39. Within four weeks of my final decision, the Council has agreed to:
1. Provide a written apology to Mrs X and her child for the unnecessary and avoidable distress caused by the failure to secure appropriate provision and the delay in reviewing the Education Health and Care Plan.
2. Pay £12,000 for the failure to provide full, suitable provision for the winter term 2023 through to summer term 2025.
3. Pay £1,000 for the delay in completing a review of the Education, Health and Care Plan for almost two years.
40. 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.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. I find fault causing injustice. The Council has agreed to apologise and make a payment to Mrs X.

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Investigator's decision on behalf of the Ombudsman