Summary: The Council failed to put in place education and special educational needs provision for Mrs X’s son when tuition broke down, failed to issue a final education, health and care plan following a review and failed to identify a suitable post 16 placement. That meant Mrs X’s son missed out on provision and Mrs X had her right of appeal denied and suffered distress. An apology, payment to Mrs X and a process to manage children out of education is a satisfactory remedy.

The complaint

1. The complainant, Mrs X, complained the Council:
• failed to provide her son with education and special educational needs (SEN) provision from February 2024 onwards;
• failed to issue a final education, health and care plan (EHC Plan) following the 2024 annual review;
• failed to identify a suitable post 16 placement for her son; and
• failed to keep her up-to-date with what was happening.
2. Mrs X says the Council’s actions meant her son missed out on education and SEN provision and she experienced distress.

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The Ombudsman’s role and powers

3. 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)
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 an injustice, 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. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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(i), 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 not investigated Mrs X’s concerns about the failure to put in place education and SEN provision between 2018 and February 2024. That is because I see no reason why Mrs X could not have complained to the Ombudsman at the time. I have, however, exercised the Ombudsman’s discretion to investigate what has happened since February 2024. That is because that is when the Council held an annual review for Mrs X’s son. It is therefore appropriate to consider what has happened since then.

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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
10. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education

11. The Education Act 1996 (Section 19) says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child's age, ability and aptitude, including any special needs.

Special educational needs

12. A child or young person with special educational needs may have an EHC Plan. This sets out the child's needs and arrangements for meeting them.
13. Local authorities (councils) have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)

The special educational and disability needs code of practice (code of practice)

14. EHC Plans must be reviewed by the local authority as a minimum every 12 months.
15. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person. If the plan needs to be amended, the local authority should start the process of amendment without delay.
16. If the local authority decides to continue to make amendments, it must issue the amended EHC Plan as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.
17. For children and young people with EHC Plans, discussions about post-16 options will be part of the preparing for adulthood focus of EHC Plan reviews, which must be included as part of the review from Year 9 (age 13-14). The local authority must ensure these reviews take place, and schools and colleges must co-operate with the local authority in these reviews. If it is clear that a young person wants to attend a different school (sixth form) or a college, then that school or college must cooperate, so that it can help to shape the EHC Plan, help to define the outcomes for that young person and start developing a post-16 study programme tailored to their needs.

What happened

18. Mrs X’s son has SEN and an EHC Plan. The Council held an annual review in February 2024 when Mrs X told the Council she could no longer home educate her son. That resulted in the Council putting in place nine hours provision per week with a tutor. That provision was in place and available for Mrs X’s son until December 2024. The Council told Mrs X it would issue an amended EHC Plan by Easter 2024 but failed to do that.
19. In September 2024 the tuition company contacted the Council to say Mrs X’s son had stopped engaging. Mrs X also contacted the Council to say her son needed a reassessment and would not be continuing with the tutoring as it was not working for him. Mrs X said it was not possible to say what the right provision should be with an out of date EHC Plan and no involvement of professionals for some time. The Council agreed to arrange a review.
20. The Council held an annual review on 29 November. The Council agreed to amend the EHC Plan and look for an alternative provider for Mrs X’s son.
21. The Council identified a provider in December. Mrs X agreed for her son to visit that provider in January 2025. That visit did not take place and in March Mrs X said her son was no longer interested in the provision.
22. In May 2025 the Council provided Mrs X with some ideas about possible post-16 placements which her son would need to apply for. The Council said if he applied for any of the provisions it would then consult them.
23. Mrs X chased the Council to find out what was happening with her son’s EHC Plan and post-16 placement in September 2025. An officer from the SEN careers service had some discussions with Mrs X about potential options for her son.
24. Mrs X contacted the Council again in January 2026. Mrs X said the post-16 options discussed were not appropriate for her son. Mrs X also said it was difficult to know what provision would be suitable without an up-to-date EHC Plan. The Council agreed to hold another annual review which was due to take place in February 2026.

Analysis

25. Mrs X says the Council failed to put in place full-time education for her son and provision in his EHC Plan from February 2024 onwards. The evidence I have seen satisfies me until February 2024 Mrs X had electively home educated her son. Mrs X had made clear to the Council in January 2024 she could no longer do that. I am satisfied the Council acted on that promptly by arranging nine hours education per week through a tuition company, with a view to this allowing Mrs X’s son to reintegrate back into school. I am satisfied that nine-hour education package was in place between February 2024 and December 2024. I therefore could not say the Council failed to put in place education during that period.
26. I recognise nine hours per week was not full-time education. However, I also note Mrs X’s son struggled to access the provision and by September 2024 both the provision and Mrs X had told the Council he would no longer engage. In those circumstances I do not consider it likely Mrs X’s son could have accessed more than the provision in place. I therefore do not criticise the Council for any lack of provision before the new school year in September 2024.
27. However, I am satisfied the Council knew by the middle of September 2024 Mrs X’s son would no longer access the tuition service as he was struggling to engage. I am satisfied the Council recognised the need at that point to hold a further annual review to inform any decisions about Mrs X’s son’s future education. However, there was a further delay holding the annual review. Mrs X’s son also then missed out on education between the middle of September 2024 and December 2024. Given there would have been a delay identifying suitable support for Mrs X’s son as the Council needed to hold a further annual review I consider the £200 remedy the Council has offered for this part of the complaint satisfactory.
28. I am satisfied the Council acted promptly following the annual review to identify alternative provision. The evidence I have seen satisfies me the Council had identified alternative provision in December 2024 and arranged in early 2025 for Mrs X and her son to visit the provision. The documentary evidence also shows Mrs X accepted the proposed alternative provision and there is no evidence she raised concerns about the suitability for her son until the beginning of March 2025. I therefore have no grounds to criticise the Council before March 2025.
29. The Council accepts it failed to put in place education and provision in the EHC Plan from March 2025 onwards when it became clear Mrs X’s son was not willing to access the alternative provision proposed. Failure to do that is fault. That meant Mrs X’s son missed out on education between March 2025 and January 2026. That equates to around 2.5 terms.
30. The Council has offered £3,000 to reflect the missed provision. However, I am satisfied Mrs X’s son missed out on provision in his EHC Plan as well as education. The Ombudsman normally recommends an amount between £900 and £2,400 per term. In this case Mrs X’s son did not receive any education and none of the provision in his EHC Plan. On the balance of probability I do not consider it likely though Mrs X’s son could have accessed full-time education during that period, given the difficulties he had experienced with previous attempts at education. In those circumstances I consider £1,800 per term an appropriate remedy. That equates to £4,500. That is to reflect both the missed education, lack of SEN provision and Mrs X’s distress. The Council has agreed to my recommendation.
31. I also recommended the Council put in place a process to identify and track children not receiving education so those children are not left without education for an extended period. The Council has agreed to my recommendation.
32. Mrs X says the Council failed to issue a final EHC Plan following the 2024 review. Mrs X also says the February 2024 review did not qualify as an annual review because it did not include any input from inclusion or any school.
33. I am satisfied the Council carried out two annual reviews in 2024. The first annual review took place in February 2024. That annual review followed the annual review process format and reflects the same type of information as considered at the November 2024 annual review. I am therefore satisfied the Council held both meetings as annual reviews. I am also satisfied both annual reviews identified the need for amendments to the EHC Plan for Mrs X’s son.
34. I am concerned to note though that as of January 2026 the Council had still not issued a final EHC Plan. That is significantly outside the timescales set out in the code of practice and is fault. I am particularly concerned about the delay in this case because the last final EHC Plan the Council issued was in 2020 when Mrs X’s son was only nine years old. At the time of the reviews in 2024 Mrs X’s son was 14 and then 15. In those circumstances I understand Mrs X’s concern about the difficulty identifying a suitable post 16 placement for her son when any consultations would have taken place based on an out of date EHC Plan.
35. As the code of practice also makes clear, the Council should have carried out preparing for adulthood reviews for Mrs X’s son from year 9. It is clear the Council did not do that. That delayed identification of potential post-16 options for Mrs X’s son and I note no options had been identified by the end of January 2026. That again is fault.
36. Mrs X is also concerned the Council failed to keep her up-to-date with what was happening. The Council accepts there have been some gaps in communication. That is fault.
37. I am satisfied because of the delays issuing the final EHC Plan Mrs X missed out on her right of appeal. I consider that significant in this case because Mrs X has concerns about the content of the EHC Plan. As much of that EHC Plan concerned a nine year old boy that has potentially compromised the Council’s ability to identify post-16 options for Mrs X’s son. I consider it likely the delays mean Mrs X’s son’s post-16 options will now take place considerably after his 16th birthday. I also consider Mrs X is left with some uncertainty about whether her son has missed out on additional special educational needs provision he needed because the Council did not update the EHC Plan.
38. I welcome the Council’s willingness to admit where it has been at fault. I note the Council has offered a financial remedy of £800 to reflect its failures in relation to the EHC Plan process. I consider that a satisfactory remedy for this part of the complaint, taking into account the impact on Mrs X as well as her son. That makes a total financial remedy of £5,500. I also recommended the Council apologise to Mrs X for the failures identified in this statement. The Council has agreed to my recommendation.
39. I note the Council intended to complete a further review of the EHC Plan in February 2026. As part of the remedy for this complaint I recommended the Council ensure it issues an amended final EHC Plan within the timescales set out in the code of practice. The Council has agreed to my recommendation. I do not make any further recommendation for any procedural remedies as the Council has in place an action plan to deal with issues in its SEN department.

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Action

40. Within one month of my decision the Council should:
• apologise to Mrs X for the distress she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs X £5,500.
41. The Council should ensure that it issues a final EHC Plan within the timescales set out in the code of practice now that it has completed a further review.
42. Within three months of my decision the Council should put in place a procedure for identifying and tracking the children not receiving education to ensure there are no lengthy delays putting in place provision.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I find fault causing injustice. The Council will take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman