Summary: The Council was at fault for delays in issuing Y’s EHC Plan following the 2025 annual review, for failing to issue an appealable decision following the 2024 annual review and for failing to consider its Section 19 and 42 duties between September 2025 and February 2026. The faults caused Ms X and Y uncertainty and led to Y missing two terms of education and the specialist provisions from their existing EHC Plans. The Council agreed to apologise and make payments to remedy the injustice caused.

The complaint

1. Ms X complained the Council delayed reviewing her child, Y’s Education, Health and Care (EHC) Plan following Y’s Annual Review (AR) in March 2025. She said the Council also failed to respond to her requests for a change of placement in 2023 and 2024 after Y started secondary school in 2022.
2. Ms X said the Council’s failures caused her and Y avoidable distress, disrupted Y’s education and led to their school withdrawal. It also caused Ms X financial hardship because she could no longer work full time.
3. Ms X wants the Council to be held accountable, to secure a suitable educational placement for Y, and to make a financial payment to remedy the avoidable distress caused.

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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. 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.
6. 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)
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 have and have not investigated

8. I have investigated what happened between March 2024 when the Council carried out Y’s AR, and June 2025 when Ms X complained to us.
9. I have also investigated matters that happened after Ms X complained to us in June 2025 because I consider they are matters of continuing fault and injustice, and I have sufficient evidence to reach a sound and balanced decision.
10. 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)
11. Part of Ms X’s complaint is that the Council failed to respond to her requests for a change of placement as part of Y’s AR in 2023. This part of Ms X’s complaint is late and there is no good reason why she could not have complained about the matter sooner. In line with the previous paragraph this puts this part of Ms X’s complaint outside of our jurisdiction.

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How I considered this complaint

12. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
13. 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

EHC Plan 

14. 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.

Content of an EHC Plan

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

Reviewing EHC Plans

16. 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) 
17. 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.
18. 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.

Maintaining the EHC Plan

19. 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)  
20. 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

21. 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.
22. 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.
23. 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.

The Council’s SEND Panel

24. The Council has a SEND Panel which regularly meets as part of its Special Educational Needs and Disabilities (SEND) decision-making and support processes. Its purpose is to ensure that:
• decisions about children and young people’s needs and provision are made consistently;
• their needs are identified in a timely way in accordance with statutory guidance; and
• outcomes are in line with the requirements of the Children and Families Act 2014, the SEND Code of Practice 2015, and the statutory Education, Health and Care (EHC) planning process.

What happened

25. Ms X has a child, Y, who has special educational needs and an EHC Plan since 2016. In September 2022, Y transferred to a mainstream secondary school, school 1. In early 2023 Y’s attendance declined, which Ms X said was due to anxiety.
26. In March 2024 school 1 carried out Y’s Annual Review (AR) and as part of this process Ms X requested a change of Y’s placement as she said school 1 could not meet their needs. The school recorded in the AR meeting notes that Y’s attendance rate was 90%.
27. The Council did not respond to Ms X’s request for a change of placement or issue a formal decision.
28. In March 2025, school 1 carried out a further AR. As part of this review, Ms X again submitted a request for a change of placement, which school 1 supported. Ms X told us her request was due to school 1 being unable to provide the support outlined in Y’s EHC Plan. The school recorded in the AR meeting notes that Y’s attendance rate was again at 90%.
29. In April 2025, Ms X complained to the Council about it failing to complete Y’s AR process by not issuing a decision within six weeks of Y’s AR meeting.
30. The same day, the Council submitted Ms X’s request for a change of school placement to its SEND Panel, which instructed officers to consult with Ms X’s preferred school as well as schools maintained and funded by the Council. The Panel indicated it would consider further steps once officers received the consultation responses.
31. In May 2025 Ms X decided to withdraw Y from school 1 due to anxiety.
32. In May the Council issued its stage one response to Ms X’s complaint. It apologised for failing to meet statutory deadlines by not responding after Y’s AR in March 2025.
33. In early June, Ms X remained dissatisfied with the Council’s stage one complaint response and escalated the matter to the next stage. She said the Council had also failed to acknowledge her previous requests for a change of school placement which she submitted in 2023 and 2024. She also said the Council’s inaction over this extended period had caused Y avoidable distress and impacted their health which led to them experiencing a ‘recent serious episode of distress’. We have seen no evidence Ms X told the Council or that it was aware at this time that she had withdrawn Y from school.
34. Later that month, the Council issued its response. It acknowledged it had failed to submit requests from 2023 or 2024 to its SEND Panel and had not issued formal decisions in response to them. It also accepted it had not completed the 2025 AR process within the required timescale. The Council apologised and said it recognised these failings caused avoidable distress to Ms X and Y.
35. Ms X remained unhappy about the Council’s response and complained to us.
36. Over the summer holidays Ms X contacted the Council on several occasions requesting an update on her change of placement request.
37. In September 2025 school 1 sent a message to the Council saying Y had not attended school since April 2025.
38. In November Ms X told us the Council had not issued a final EHC Plan or corresponded with Ms X in any way following the AR meeting in March 2025.
39. In December 2025 the Council informed Ms X it decided to amend Y’s EHC Plan which it issued in January 2026. Section I of the amended Plan specified a new placement (school 2), which is one of the schools Ms X had expressed a preference for. Y started attending school 2 from February 2026.

My findings

40. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are breaches of those timescales.

AR 2024 and Ms X’s request for a change of placement

41. The Council carried out Y’s AR in March 2024 when Ms X made a change of placement request. The Council acknowledged it never submitted this request to its SEND Panel or issued a formal decision to Ms X. This was fault and caused Ms X uncertainty, avoidable distress and denied her a right to appeal the Council’s decision to the SEND Tribunal if she disagreed with it.

AR 2025 and Ms X’s request for a change of placement

42. After reviewing Y’s EHC Plan the Council should have decided whether to amend, maintain or cease Y’s Plan within four weeks by mid April 2025 and then issued Y’s amended final plan by mid June 2025. Instead, the Council issued its decision to amend Y’s EHC Plan in mid December 2025 and issued the amended final plan in early January 2026 – seven months late. This was fault and caused Ms X and Y uncertainty and avoidable distress.
43. Section I of the new plan named a different placement for Y, which they began attending in February 2026. On balance, had the Council issued Y’s plan within the statutory timescales in June 2025 - it would have made the same amendments. As a result, the delay prevented Y from starting at school 2 earlier. On balance, this meant Y missed out on receiving education at school 2 between June 2025 and February 2026 – for two terms.

Y’s education and alternative provision

44. School 1 informed the Council in September 2025 that Y had not attended school since April 2025. Ms X told us she withdrew Y from school 1 in May 2025. For the remainder of this decision I decide on balance Y stopped attending school 1 in April 2025.
45. Ms X further told us that Y received no alternative provision or support from school 1 between April 2025 and February 2026 when they started at school 2.

Period March 2024 to April 2025

46. During this time Y was enrolled at school 1 and had an average of 90% attendance rate. The Council had no duty to consider its Section 19 duty or to provide alternative provision to Y. Ms X said school 1 was unable to provide the provisions outlined in Y’s EHC Plan but there is no evidence the Council was aware of this. The Council was not at fault.

Period April to July 2025

47. There is no evidence, the Council was aware Y had stopped attending school in April 2025. It could not have known Y was not attending school 1 requiring it to consider whether it needed to consider its section 19 duty. The Council was not at fault.

Period September 2025 to February 2026

48. The Council had a statutory duty under Section 42 to ensure children with an EHC Plan receive the provisions from Section F - during time of absence from school. The Council had already agreed to consult for a change of placement for Y and so on balance, accepting school 1 was no longer suitable.
49. Once aware of Y’s absence from school 1 there is no evidence the Council considered its Section 19 duty to provide alternative provision or its Section 42 duty at the time. It took no other action in line with our recommendations outlined in paragraph 22. On balance, given the circumstances it is likely the Council would have decided to put support in place for Y had it properly considered the duties at the time. Not doing so was fault. This caused Y two terms if missed education and caused Ms X uncertainty about whether more could have been done to support Y sooner.
50. The Council currently has a detailed Priority Action Plan. We are overseeing the Council’s wider SEND transformation programme which includes actions on EHC Plans & Annual Reviews as well as Alternative Provision. Therefore, I have not made any further service improvement recommendations.

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Action

51. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to and pay £2900 to Ms X and Y in recognition of the uncertainty, avoidable distress and missed education and specialist provision between June 2024 and February 2025 caused by:
1. the Council’s delay in issuing Y’s EHC Plan following the 2025 annual review;
2. the Council’s failure to issue an appealable decision following the 2024 annual review; and
3. for not properly considering its Section 19 and Section 42 duties between September 2025 and February 2026.

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.

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

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Decision

I have found fault and made a recommendation for the Council to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman