Summary: We found fault with the Council delaying for two and a half months outside the statutory timescales in producing an amended final Education, Health and Care Plan for Ms X’s child. We also found fault with the Council failing to consider the suitability of Ms X’s child’s access to education from February 2025 to May 2025. The Council’s actions caused Ms X frustration, uncertainty and delayed her appeal rights. The Council agreed to apologise to Ms X and provide her with a symbolic payment for the injustice caused by its fault.

The complaint

1. Ms X complained the Council delayed review of her child’s Education, Health and Care Plan outside the statutory timescales.
2. Ms X also complained the Council failed to provide suitable full-time education for her child from January 2025 to September 2025.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. 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)
8. 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

9. Mr X complained about her child’s, Y’s, access to education from January 2025 to September 2025.
10. I have investigated Ms X’s concerns until May 2025 when the Council produced an amended Final Education, Health and Care (EHC) Plan for Y. I have not investigated the Council’s actions after this date. This is because Ms X appealed the content of Y’s EHC Plan to the SEND Tribunal. Ms X’s appeal related to Y’s educational setting and the delivery of Y’s Section F provision. An appeal about such matters is specifically about the suitability of education on offer to a child, this includes any decision about delivery of alternative provision of education.
11. Since Ms X exercised her appeal rights to the SEND Tribunal, the Ombudsman has no jurisdiction to investigate any linked matters to the appeal. This applies to any time period after production of the Final EHC Plan, when this appeal right arose.
12. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
13. I have referred to some information and events before January 2025 and after May 2025 for contextual information to inform our findings. I have not made any findings on the Council’s actions outside this timescale but have used some of this information to inform the Council’s decision making for the relevant investigation period.

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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 before I made a final decision.

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What I found

Rules and regulations

EHC Plans

16. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
17. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
18. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. An annual review is completed when a council issues a letter advising of intention to cease, maintain or amend an EHC Plan following an annual review meeting.
19. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
20. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
21. Where a 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
22. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
23. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the Final amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
24. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
25. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

Section 19 duty

26. 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.

Establishing a section 19 duty

27. 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.
28. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
29. 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.

Good practice guidance

30. 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)
31. 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 it will arrange alternative education provision;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and 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; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, and the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

32. 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

33. The Council produced the first EHC Plan for Y in January 2024. The EHC Plan outlined the Section F provision the Council should secure for Y.
34. In the school’s support plan for Y for the Autumn Term of the 2024/2025 academic year the school detailed what support it was providing for Y which included the full EHC Plan provision. The Council later updated this support plan in Spring 2024/2025 and summer 2024/2025 to reflect the provision then.
35. In November 2024, the Council held an annual review for Y’s EHC Plan. Within the annual review Y’s school confirmed it was providing the full Section F provision but needed extra funding moving forwards. The school confirmed it was doing everything it could to support Y but sometimes there were difficulties getting Y into school in the morning.
36. In January 2025, the Council decided to amend Y’s EHC Plan.
37. Y’s school also outlined the extra funding it needed from the Council to pay for the full support it was providing for Y. Y’s school outlined what this provision was which went above and beyond the provision outlined in Y’s EHC Plan.
38. At the end of January 2025, Y’s school placed Y on a part-time timetable of 2.5 hours each day and confirmed this with the Council at the start of February 2025.
39. In mid-February 2025, Ms X contacted the Council to raise concerns about Y’s attendance at school and the reduced timetable. Ms X requested consultation with another school which the Council completed.
40. Ms X made a formal complaint to the Council in April 2025. Ms X said:
• The Council had failed to meet the deadline for production of her child’s Final EHC Plan following the annual review in November 2024.
• Y is on a reduced timetable with the school meaning Y only gets two and a half hours education each day.
• A different school or her choosing had offered a place for Y but the Council had not named this placement yet.
• Y’s current school is not suitable for Y, is not offering full-time education and no offer of Alternative Provision of education has been made.
41. In May 2025, the Council produced a Final EHC Plan for Y. The Council named Y’s current school in Section I. The Council detailed Ms X’s appeal rights to the SEND Tribunal.
42. The Council also provided a complaint response in May 2025. The Council said:
• It apologised for the delay in finalising Y’s EHC Plan following the annual review meeting in November 2024.
• It was working with Ms X to find other settings for Y.
• Ms X had an appeal right to the SEND Tribunal about the content of the EHC Plan.
• It is continuing to work with Y’s school to provide suitable educational provision for Y.
43. Ms X appealed the EHC Plan to the SEND Tribunal. Ms X appealed Sections B, F and I. Ms X said Y’s current school could not meet Y’s needs and the part-time timetable is not suitable education for Y.
44. In June 2025 and July 2025, the Council confirmed Y was receiving a high level of support from their current school, more than that outlined in Y’s EHC Plan but was only attending reduced hours.

Analysis

EHC Plan review

45. The Council had until mid-January 2025 to complete the annual review of Y’s EHC Plan because it produced Y’s first EHC Plan in mid-January 2024. The Council held Y’s EHC Plan annual review meeting in November 2024 and sent its decision to amend letter within 12 months of Y’s first EHC Plan. The Council met the annual review timescales and I do not find fault.
46. However, the Council had 12 weeks from the annual review meeting to produce Y’s final amended EHC Plan given its decision to amend Y’s EHC Plan. This meant the Council had to produce Y’s amended final EHC Plan by the end of February 2025. The Council failed to produce Y’s final amended EHC Plan until the start of May 2025; this was two and a half months outside the timescales and was fault.
47. The Council’s delays would have caused Ms X distress and frustration and delayed her ability to engage her appeal rights to the SEND Tribunal.

EHC Plan delivery

48. The evidence from the annual review meetings and school support plans show that Y’s school was providing the full EHC Plan provision outlined in Y’s plan.
49. The Council completed observations of Y in the school and noted the level of support provided to Y. Y’s school also requested extra funding for the provision it had in place for Y because it was sourcing extra provision beyond what the Council was funding as outlined in the EHC Plan.
50. It is clear from the evidence that Y’s school was providing the EHC Plan provision not only in line with the plan but beyond what was included within the plan. The Council took steps to verify the provision was in place through contact with the school, discussions at the annual review meetings and observation of Y. I do not find fault with the Council.

Access to suitable education

51. At the end of January 2025, Y’s school put in place a part-time timetable for Y. The school shared this with the Council at the start of February 2025. The Council has shown no consideration of the suitability of this part-time timetable for Y; this was fault.
52. Following contact from Ms X later in February 2025 to raise concerns about the suitability of Y’s school and the part-time timetable, the Council again took no action to consider the suitability of Y’s educational provision. While the Council did consult with another school placement, it did not address concerns about the current education in place; this was fault.
53. When Ms X made a complaint to the Council in April 2025, including concerns about a lack of alternative provision of education for Y, the Council failed to take suitable action to consider Y’s access to education; this was fault.
54. From the start of February 2025 to the start of May 2025, the Council failed to suitably consider Y’s access to education and failed to detail any consideration about whether it should provide alterative provision of education for Y. This was fault. This fault caused uncertainty to Ms X about what education should be in place for her child. The Ombudsman looks to address uncertainty through apologises and symbolic payments to acknowledge the impact such uncertainty can have. These payments are symbolic in nature and cannot truly reflect the impact on a person.

Service improvements

55. The Ombudsman is aware that Devon Council is currently undergoing a significant transformation programme for its SEND services following previous recommendations from the Ombudsman. The Council has already implemented improvements to its adherence to EHC Plan review timescales and rules and for consideration about whether it should provide alternative provision of education for a child. The ongoing actions by the Council directly cross-over with the issues identified in this case. For this reason, I am not making any service improvements.

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Action

56. Within one month of the Ombudsman’s final decision the Council has agree to:
• Provide an apology to Ms X for the uncertainty caused through its failure to suitability consider his child’s access to education from February 2025 to May 2025 and for the frustration and delayed appeal rights caused through the delays in producing an amended final Education, Health and Care Plan following the annual review. 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 in my findings.
• Provide a symbolic payment to Ms X of £400 for the uncertainty caused through its failure to consider Y’s access to education from February 2025 to May 2025 and for the frustration and delayed appeal rights caused by the delay in producing an amended final Education, Health and Care Plan.
57. The Council should provide us with evidence it has complied with the above actions.

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Decision

58. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman