Summary: The Council failed to ensure Miss X’s child, Y received an education in line with their Education, Health and Care (EHC) Plan between December 2024 and July 2025 when they could not attend school due to exclusion. The Council was also at fault for significant delays in issuing Y’s amended EHC Plan following an annual review in July 2024. The Council agreed to apologise and make a payment to recognise the injustice this caused.

The complaint

1. Miss X complains the Council failed to ensure her child, Y received an education in line with their Education, Health and Care (EHC) Plan after they were excluded from school towards the end of 2024.
2. She complains the Council delayed amending Y’s EHC Plan following an annual review in June 2024 and delayed consulting with alternative schools.
3. Miss X says Y has lost out on specialist provision and social interaction which has caused distress and uncertainty to both.

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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. 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)
6. 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

7. I have investigated the period from June 2024 when the annual review took place until August 2025 when the Council issued the amended Plan. Any concerns Miss X has after August 2025 will need a new complaint to the Council to give it the opportunity to respond first.

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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.
11. 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.

12. 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

13. 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.

SEND tribunal

14. 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.
15. 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.

Alternative provision and the Section 19 duty

16. 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.

What happened

17. Miss X has a child, Y of primary school age. Y has an EHC Plan which the Council issued in April 2024. The Plan named a mainstream primary school (School 1) as Y’s educational placement. Section F of Y’s EHC Plan outlined the specialist provision they were entitled to which included:
• Curriculum tailored to Y’s learning needs
• Use of Now and Next boards in class
• Twice weekly social skills groups with no more than three or four other children
• Reliable and consistent classroom routines
• Adult support in class
18. Y’s school held an early annual review meeting in July 2024 which Y’s case officer attended. Records show School 1 was struggling to manage Y’s behaviour. The minutes show School 1 had recorded over 150 behaviour incidents during the academic year which included hurting people, throwing things and swearing. School 1 said it had considered excluding Y but held off because of their young age. The agreement was the Council would find Y a different school but they would continue attending School 1 until this happened. There is no evidence the Council sent any decision letters or amendment notices following this meeting.
19. Y continued attending School 1 from the start of the 2024/25 academic year. Miss X contacted the Council in early September raising concerns that she had no update since the annual review meeting. The Council responded to say the case officer was on leave.
20. Between October and November 2024 School 1 suspended Y on four occasions due to their behaviour. School 1 permanently excluded Y in early December 2024.
21. In January 2025 the Council put alternative provision in place for Y. This consisted of 15 hours a week tuition at home doing mainly maths and English work.
22. Records show Miss X chased the Council several times between January and April 2025 about its consultation with alternative schools for Y. The Council said it had consulted with various schools without success.
23. Miss X complained to the Council in April 2025. She said the Council had not adequately consulted with alternative schools for Y since their exclusion from School 1 in December 2024. She said communication from case officers was poor and the tuition Y was receiving was not enough and was not meeting their social needs. Miss X asked for an increase in Y’s tuition.
24. The Council responded to Miss X in early May 2025. It said following the annual review meeting in July 2024 it had consulted with several mainstream schools all of which said they were unable to meet Y’s needs. It said it was broadening its search for schools outside of its area. It apologised for the ongoing inconvenience Y’s circumstances were causing. The Council said it planned to carry out another annual review in July 2025.
25. In June 2025 the Council increased Y’s alternative provision tuition to 20 hours a week.
26. Miss X escalated her complaint to stage two of the complaints procedure. She repeated her concerns about a lack of school place for Y and said nothing had happened since the July 2024 annual review. She said the continued lack of school place for Y was having a significant impact on their wellbeing. She requested the Council hold another annual review so it could amend Y’s EHC Plan and wanted a school place as soon as possible.
27. The Council provided Miss X with a further response in July 2025. It said due to staffing and internal resourcing issues there was a delay consulting with schools following the July 2024 annual review. It noted Miss X’s preference was a mainstream school for Y but all of them consulted with said they were either full or could not meet Y’s needs. It said although Y was receiving tuition it accepted that this did not meet all their needs, particularly social interaction. The Council offered Miss X £350 to recognise Y’s loss of education and the delay in consulting with alternative placements. Although Miss X accepted this payment she made it clear to the Council that it was not satisfactory.
28. The Council carried out another annual review in June 2025. Following this it issued a final amended EHC Plan in August 2025 including a letter outlining Miss X’s appeal rights to the SEND tribunal. Section I was left blank.
29. Miss X remained unhappy and complained to us.
30. Since complaining to us Miss X said Y began attending a therapeutic school in November 2025 under an Education Other than at School (EOTAS) package.

My findings

31. The Council held an annual review in July 2024. Following this there is no evidence it sent Miss X an amendment notice. It did not issue an amended Plan until August 2025 after it held another annual review in July 2025. That was a delay of almost 11 months. All of this is fault and denied Miss X her appeal rights to the SEND tribunal.
32. Following the July 2024 annual review the Council agreed to consult with alternative schools for Y. It has accepted in its complaint response that it delayed doing so which was fault. However, it is unlikely earlier consultation with the same schools would have led to a different outcome.
33. Y was excluded from school in December 2024. Although delayed slightly, the Council put in place alternative provision by way of tuition for Y from January 2025 onwards. This remained in place (increasing to 20 hours from June 2025) for the rest of the academic year. However, Y has an EHC Plan which means the Council retained the legal duty to ensure Y received the specialist provision in the Plan. There is no evidence the Council made any effort to ensure Y received this specialist provision, specifically the social aspect. This was fault. It meant Y did not receive a suitable education in line with their EHC Plan for two terms between the end of December 2024 and July 2025. The Council has accepted fault in failing to ensure Y received a full education and has made a small payment to recognise this. However, this was insufficient to remedy the injustice caused and so I have made a further recommendation below.
34. Following Y’s amended EHC Plan being issued in August 2025 Miss X had a right of appeal to the SEND tribunal. It was open for her to have used that however, she has said they now have a new placement for Y which they are attending. If Miss X has concerns about Y’s education from September 2025 onwards then she can make a new complaint.
35. Following other Ombudsman investigations we have recently made similar findings of fault with this Council and made service improvement recommendations. This includes the Council putting in place a case management system to identify and oversee children with EHC Plans who are not in school and where annual reviews are overdue. It is also reviewing recent cases where amended Plans have not been issued after annual reviews and it is putting procedures in place to enable it to complete reviews within statutory timescales. Given this, I have not made further recommendations and we will monitor compliance of the above through our casework.

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Action

36. Within one month of the final decision the Council should apologise to Miss X and pay her a total of £2200 to acknowledge Y’s loss of education in line with their EHC Plan between December 2024 and July 2025 and for the distress and uncertainty caused to Miss X by the faults found in this case. This payment is in addition to the £350 it has already paid Miss X.
37. 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.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman