Summary: The Council delayed completing Y’s Education, Health and Care (EHC) Plan following an annual review which caused Ms X and Y avoidable distress and uncertainty and delayed Ms X’s right to appeal to the Tribunal by four months. The Council was also at fault for not considering its Section 19 and 42 duties between December 2024 and April 2025 which caused Ms X and Y further uncertainty. The Council was also at fault for a one-month delay in its response to Ms X’s complaint about the same matter. The Council agreed to apologise and make a payment to Ms X to remedy the injustice caused by these faults.

The complaint

1. Ms X complained the Council delayed amending her child, Y’s Education, Health and Care (EHC) Plan following the Annual Review meeting held in December 2024. Ms X also said the Council failed to provide alternative provision for Y since September 2023 and did not properly consider her complaints about the matter.
2. She said the Council’s delay caused avoidable distress and disrupted Y’s education.
3. Ms X wanted the Council to issue Y’s amended EHCP without further delay, to name a suitable school that can meet their needs, and to acknowledge its failure to meet statutory deadlines and the impact this had on Y and herself.

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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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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. 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.
8. 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)
9. 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

10. I have investigated the delays in reviewing Y’s EHC plan following the Annual Review (AR) between December 2024 and October 2025 when it issued Y’s amended final EHC Plan.
11. I have further investigated whether the Council considered providing alternative provision to Y and whether it properly considered Ms X’s complaints about the matter between December 2024 and July 2025 when the Council mistakenly issued Y’s EHC Plan and Ms X used her right to appeal to the Tribunal.
12. I have not investigated events from September 2023 until December 2024 because we have already considered a complaint from Mrs X about a failure to consider its Section 19 duty for that period. We decided at the time not to investigate the complaint as there was not enough evidence of fault in the Council’s actions to justify investigating and we do not consider a complaint twice.
13. I cannot investigate events after Ms X’s appeal to the Tribunal in July 2025 including a lack of alternative educational provision. In line with paragraphs 25 to 29 below this puts the period July 2025 onwards outside of our jurisdiction.

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How I considered this complaint

14. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
15. Ms 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

Education, Health and Care Plans

16. 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.
17. The EHC Plan is set out in sections which include: 
• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.
18. 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

19. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Where the council proposes to amend an EHC Plan following a review, 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.

Maintaining the EHC Plan

20. 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)  
21. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Alternative provision and the Section 19 duty

22. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
23. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022.
24. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

SEND tribunal

25. 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.
26. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
27. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207.
28. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
29. We cannot trespass in any way on the jurisdiction of the tribunal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207.

The Council’s complaints policy

30. Under the Council’s corporate complaints policy, a request for a Stage 2 investigation may be declined if it is considered further investigation would not alter the outcome, or if no significant new and relevant information has been provided. In such cases, the Council aims to inform the complainant of this decision within five working days

What happened

Background

31. Ms X has a child, Y, who has had an EHC Plan since 2020 but has been unable to attend the named school in their Plan since September 2023 when Y transferred to secondary school.
32. Y remained out of school during the 2024/25 academic year.
33. In December 2024 the Council carried out Y’s annual review (AR).
34. Following the AR Ms X sent a message to the Council stating Y’s school has been unsuccessful in securing a tutor for Y at home and that Y had missed another term (September-December) of education since the start of the 24/ 25 academic year.
35. In January 2025, it sent the AR notes to Y’s school, asking the school to check the content and share them with Ms X for her comments before returning the notes to the Council.
36. In March 2025 Ms X complained to the Council as she had not received an update following Y’s AR and the Council had yet to finalise Y’s EHC Plan.
37. In April the Council responded to Ms X, it said it only became aware the school had not returned the notes following Ms X’s complaint and followed this up with the school. The Council partially upheld Ms X’s complaint.
38. The same day Ms X escalated her complaint to the Council’s second stage. She said the Council had failed to comply with statutory timescales which was delaying her right of appeal to the Tribunal.
39. In April, two members of teaching staff from Y’s school began visiting Y at home as part of efforts to support their reintegration into school. The visits took place twice a week for one hour and involved interest-led activities, such as gardening or walks, rather than curriculum-based learning.
40. In May the school shared the review notes with Ms X who disagreed with them and refused to sign them as the Council planned to continue naming Ys current school in Section I of the amended plan.
41. The Council decided to continue the review process despite Ms X’s disagreement with the plan.
42. In May – 14 days after Ms X’s escalation request – the Council informed Ms X it rejected her request to escalate her complaint to the next stage as it believed further investigation would not achieve a different outcome for her.
43. In June 2025 the Council sent Ms X a decision letter informing her it planned to amend Y’s EHC Plan.
44. The following day, Ms X complained to the Council about it failing to provide alternative provision for Y. She said the Council had a statutory duty (Section 19) to do so. She informed the Council she intended to pursue legal action due the Council’s ongoing delay in completing Y’s EHC Plan review.
45. The same month Ms X complained to us.
46. In July, the Council sent Ms X a copy of Y’s amended final EHC Plan, together with a decision letter explaining her right to appeal to the Tribunal if she disagreed with the Plan’s content. The Council named Y’s current school in Section I.
47. Shortly afterwards the Council realised it had issued the plan before it had been internally checked. It informed Ms X of the error and explained the document was not the final EHC Plan yet.
48. The same month Ms X appealed sections B, F and I of the Plan issued in July to the SEND Tribunal.
49. In September 2025 the Council issued another final version in early October 2025 making no further changes the one it issued in July.
50. In early October 2025 Ms X moved to a new address in a neighbouring council (Council B). Responsibility for Y’s EHC Plan transferred to Council B from this point.
51. Following our enquiries, the Council told us Y remained on the school roll and therefore had access to education and provision during the 2024/2025 school year.
52. In December 2025, Ms X told us that, due to her move to Council area B, she asked that our investigation focus on the Council’s failure to meet statutory deadlines, the impact on Y’s education and wellbeing, and the resulting injustice to both Y and herself.
53. Following our enquiries, the Council informed us that Y had been enrolled at the school since September 2023 and remained enrolled there during the 2024/25 academic year. The school put a reintegration package in place. The Council also said it discussed the option of home tuition with Ms X, but the school’s attempts to secure a tutor were unsuccessful. Instead, the Council maintained that a full programme of education was put in place at the school and the school further made reintegration efforts.
54. The Council said that Ms X created barriers to Y’s reintegration:
• Y was unable to get to school as they could not travel alone in a taxi and Ms X was unable to transport them; Ms X told us she did not apply for transport for Y as she knew Y would not stay at school as they had not formed a relationship with any staff members.
• Y’s school sourced two different sources of alternative provision, however both were unsuccessful as Y was unable to manage; and
• Y’s school regularly sent members of staff to Y’s home to build a relationship with them. The Council however accepted that those visits were not as consistent as they could have been.

My findings

EHC Plan review delays

55. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
56. Following Y’s annual review in December 2024, the Council should have decided whether to maintain, amend, or cease Y’s Plan within four weeks (by mid-January 2025). It should then have issued the final amended version within a further eight weeks (by mid-March 2025). However, the Council only decided to amend Y’s Plan in June 2025 and then mistakenly issued an amended final EHC Plan in July 2025 and informed Ms X of the error about three weeks later. This was fault.
57. The Council issued its final version of the Plan in October 2025 – a delay of seven months following the review. These faults caused Ms X uncertainty and avoidable distress and delayed her appeal rights to the Tribunal (although Ms X was still able to use her appeal rights in July 2025).

Alternative provision

58. In December 2024, when Ms X informed the Council Y’s school had been unable to secure home tuitions and that Y had missed another term of education, the Council was aware Y remained out of school for the 24/25 academic year and was continuing to receive no education.
59. There is no evidence the Council considered, at the time:
• its duty to arrange alternative provision (Section 19); or
• its duty to arrange provisions set out in Section F of Y’s existing EHC Plan (Section 42): or
• whether it should take other action in line with the recommendations set out in paragraph 24.

This was fault and it caused uncertainty for both Ms X and Y about whether more could have been done to support Y at the time.

60. Evidence shows the school had arranged two forms of alternative provision, which Y struggled to access, and that staff conducted home visits to support Y’s reintegration. Ms X told us home visits before April 2025 were safeguarding checks rather than alternative provision. The Council’s evidence shows that from April 2025, teaching staff carried out home visits offering at most two hours per week of non-curriculum-based activities.
61. There is no evidence the Council had oversight of any of these arrangements to ensure it was suitable to meet Y’s needs. On balance, given that Y was unable to engage with even the minimum provision offered, it is likely they would not have been able to engage with significantly more than that.

Bottom of Form

62. The Council has an ongoing SEND improvement plan which is addressing both complaint handling, alternative provision and how it considers its Section 19 duties. We will continue to monitor progress of this through our casework and so, further service improvement recommendations are not required at this time.

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Actions

63. Within one month of the final decision the Council agreed to take the following action:
1. Apologise and make a payment of £1,400 to Ms X and Y in recognition of the distress and uncertainty caused by:
1. the Council’s delay in completing Y’s EHC Plan review;
2. delaying its response to her complaint at stage one; and
3. by the Council’s failure to consider whether it owed Y its Section 19 and Section 42 duties between December 2024 and April 2025.

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.

64. The Council should provide us with evidence it has complied with the above actions.

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Decision

65. I found fault and made recommendations for the Council to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman