Summary: The Council was at fault for the delay in providing Miss X’s child, Y, with alternative educational provision and its failure to provide Y with the specialist provision in their EHC Plan. It was also at fault for the delay in carrying out an annual review of Y’s EHC Plan and for the delay in carrying out an Occupational Therapy assessment for Y. The Council has agreed to apologise and make a payment to acknowledge the injustice caused.

The complaint

1. Miss X’s advocate, Miss Z, complained on her behalf about the Council’s handling of Y’s EHC Plan and their education. Miss Z complained the Council failed to:
• Provide Y with the section F provision out of their EHC Plan;
• Provide Y with alternative educational provision after Y stopped attending school;
• Hold Y’s annual review within statutory timescales; and
• Carry out Y’s occupational therapy assessment as agreed in his EHC Plan.
2. Miss Z said as a result Y has not received a suitable education and this has caused distress, frustration and uncertainty.

Back to top

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. 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)
4. Under our information sharing agreement, we will share this decision statement with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

5. We have already investigated Y’s loss of education for the 2023/2024 school year and issued a final decision. Therefore, the start point of this investigation will be September 2024.
6. 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). 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.
7. In September 2023, the Council issued the first version of Y’s EHC Plan naming a mainstream school. Following an annual review, it issued an amended EHC Plan in March 2025. It did not name a specific placement but said that attendance should be in a mainstream school.
8. Miss X was not sending Y to mainstream school as she said it was unsuitable. Miss X appealed as she wanted an Education Otherwise Than At School (EOTAS) package named in the EHC Plan. I cannot investigate Y’s education past March 2025. Doing so would involve looking at the Council’s decision about the educational placement in the EHC Plan and would therefore trespass on the Tribunal’s jurisdiction.

Back to top

How I considered this complaint

9. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Relevant law and guidance

EHC Plans

11. 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.
12. 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. 
13. 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.

Annual reviews

14. 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) 
15. 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.
16. 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.
17. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Section 19 duty

18. 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.
19. 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)
20. 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.

21. 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.

EOTAS (Education Other Than at School)

22. For some children and young people, education in any setting would be inappropriate due to their special educational needs. This is often referred to as EOTAS.
23. EOTAS is different to elective home education. With an EOTAS package the Council is responsible for arranging and paying for the provision.

Background

24. Miss X has a child Y who has had an EHC Plan in place since September 2023 which named a mainstream secondary school. In October 2023, Y was permanently excluded from school.
25. The specialist provision Y was entitled to in their EHC Plan included but was not limited to the following:
• A learning environment that provides structure, security, consistency, predictability and nurture;
• Focus on reinforcing a small number of priority school/class rules;
• Introduction of regulatory routines, target setting and self assessment;
• At least two scheduled moving breaks throughout the day;
• Opportunities to develop attuned trusting relationships with a small number of key adults;
• Supported to develop an enhanced understanding and awareness of their sense of self;
• Introduction to emotional regulation techniques and social skills intervention; and
• Access to quiet, sensory neutral spaces to support with task completion and sensory and emotional regulation.

What happened

Alternative educational provision

26. The Council has provided evidence it consulted with three special schools in June 2024 which Miss X had expressed in. All three consultations were positive and said Y could start in any of them in Autumn 2024.
27. Miss X rejected all three placements, so the Council’s home bridging team (HBT) worked with the family in the interim. The HBT provides temporary, home-based education for children with EHC Plans or those without a named school setting.
28. In September 2024, the Council said the HBT tried to contact Miss X about Y’s education and left a voicemail requesting she called them back. The Council has not provided evidence to support this.
29. At the start of October, the Council said the HBT further contacted Miss X to arrange a home visit.
30. The same month, the Council said it conducted a home visit and Miss X said Y did not want to complete online learning from any of the schools consulted or any other provider. The Council has not provided evidence to support this.
31. At the end of November 2024, Miss X requested education in the community or online learning. Miss X said Y would prefer a male tutor in the community. The Council arranged for a male tutor to start initial lessons online with a transition to in person sessions.
32. Around the same time, Miss X’s advocate, Miss Z, made a request for an EOTAS package for Y.
33. The Council said the HBT had home visits arranged for the end of November and start of December but these were cancelled by Miss X due to illness. Miss X has provided evidence the HBT cancelled due to transport issues.
34. In December 2024 and January 2025, the Council said the tutor tried to contact Miss X to arrange the online lessons but received no response. However, Miss X has provided us with records to show she responded to the tutor.
35. The Council said the tutor then withdrew due to lack of engagement. However, Miss X has provided us with records showing the HBT told Miss X the tutor withdrew because he did not have the availability he thought he had.
36. There is evidence the Council arranged another tutor with the first tutoring session starting early February. However, the Council said Y did not attend.
37. At the start of March 2025, Miss X indicated Y was struggling with the online sessions due to not having a laptop.
38. The Council agreed to consider getting Y a laptop. In the meantime, the Council said the HBT emailed a further work pack for Y to complete at home in March 2025. 11 days later the Council issued Y’s EHC Plan which is the end point of our investigation.

Annual review

39. The Council issued Y’s first EHC Plan on 15 September 2023 so the Council should have arranged the annual review meeting for August 2024 for it to meet the 12-month deadline.
40. The records show the Council emailed Miss X’s advocate, Miss Z on 11 September asking for their availability the week commencing 30 September to hold the annual review.
41. On the 2 October, the Council said this would need to be re-arranged as it had no response from Miss Z or Miss X. The Council proposed 11 November but Miss Z said they were unavailable to attend and asked for further dates.
42. The annual review was arranged for 19 November. Miss Z joined the meeting from her car, but the Council advised this was not appropriate and it had to be rearranged again.
43. The Council rearranged the meeting for the 28 November but Miss Z could not attend due to illness.
44. On 13 December the Council emailed Miss Z asking for their availability again. Miss Z requested some dates in the first week of January.
45. The same day the Council emailed back with availability between 6 and 11 January but Miss Z did not respond to this.
46. On 15 January, the Council emailed again suggesting 23 January at which point the meeting was held successfully.
47. On 27 March, the Council issued the final EHC Plan.

OT assessment

48. By September 2024, which is the start point of our investigation, the Council had agreed to carry out an Occupational Therapy (OT) sensory assessment as set out in Y’s EHC Plan.
49. The records show in November 2024 the Council found a provider to carry out the OT assessment.
50. At the start of December 2024, the Council asked the provider for a quote for the assessment.
51. At the end of January 2025, the provider sent the Council the relevant forms that needed to be filled out and a quote for the OT assessment. It advised the Council there was an 8-12 week wait after receiving the completed forms.
52. At the start of February, the Council sent Miss X and Miss Z the consent forms to fill in. The following month Miss Z apologised for the delay in sending the consent form back and said they would send it shortly.
53. At the start of April, the Council sent the provider the referral form back. The provider advised the Council it had not received consent from Miss X yet.
54. The provider emailed the Council the same day saying that there was also a sensory screen form and questionnaire that needed to be completed. It informed the Council it would send this to Miss X directly.
55. At the end of May, the provider notified the Council it had contacted Miss X multiple times to fill in the forms but it had not received a response.
56. In mid-august, the OT assessment took place.

Miss X’s complaint

57. In November 2024, Miss X raised a stage one complaint saying the Council had failed to:
• Provide Y with the section F provision out of their EHC Plan;
• Provide Y with alternative educational provision after Y stopped attending school;
• Hold Y’s annual review within statutory timescales; and
• Carry out Y’s occupational therapy assessment as agreed in his EHC Plan.
58. The Council issued a stage two response detailing a chronology of the support it had provided to Y. The Council also noted the efforts it had made to ensure the annual review meeting was held on time. It concluded that since July 2024, it had acted to ensure Y was offered alternative provision.
59. Miss X remained dissatisfied with the matter and complained to us.

My findings

Annual reviews

60. For the annual review to be completed within statutory timescales, the Council should have sent Miss X and Miss Z an invite in early August and held the annual review in mid-August. The Council did not contact Miss Z about the annual review until the start of September and proposed to hold it end of September but Miss Z did not respond. This was six weeks outside of timescales and fault. This initial delay caused Miss X distress, frustration and uncertainty.
61. Between the start of October and mid-January, the records show the Council attempted to arrange the annual review multiple times, but it did not go ahead for reasons outside of the Council’s control such as illness, annual leave and a lack of response to invites. Therefore, the Council was not at fault.
62. Following the Council holding the annual review at the end of January, it issued the amendment notice and final amended EHC Plan within statutory timescales and without fault.
63. We found similar fault in a case recently. Following this case, the Council agreed to remind relevant staff of the Council’s duties to adhere to statutory timescales in the annual review process. Therefore, a further service improvement is not required.

OT assessment

64. By September 2024, which is the start point of our investigation, the Council had agreed to carry out an Occupational Therapy (OT) sensory assessment. However, it took the Council two months to then find a suitable provider and a further three months to send Miss X the relevant forms for the provider to carry out the assessment. This was a delay of five months and fault which caused Miss X distress, frustration and uncertainty. It also prevented the assessment from being completed earlier
65. The delays after February were caused by Miss X and Miss Z not completing and returning the relevant forms which further postponed the completion of the OT assessment until August 2025. Therefore, the Council was not at fault for the delays after February.

S19 and S42 provision

66. Miss X complained Y has received no educational provision since September 2024. The Council has provided records to show that Y could have attended three different specialist placements from autumn 2024 but Miss X rejected these.
67. As the Council did not hold an emergency annual review and name a placement at this point, it should have put in place alternative educational provision from September 2024. The Council failed to put in place alternative educational provision until the end of January 2025. The delay was fault which meant Y went approximately 17 weeks without suitable educational provision.
68. Y also has an EHC Plan in place and the Council has an absolute, non-delegable duty to secure the special educational provision set out in the Plan. Therefore, the Council should have considered how to make the provision specified in section F away from the school. The Council did not do this which was fault. As a result, Y did not receive the provision as set out in their EHC Plan from September 2024-January 2025.
69. The Council then arranged alternative educational provision in the form of a tutor from the start of February 2025 as Miss X had requested. Had Y engaged with this from this point, on balance, he would have received a suitable education and provision in his Plan. Therefore, the Council was not at fault from February onwards.
70. We have found similar fault with a recent case and the Council agreed to provide an actual plan identifying how it will provide alternative provision to children following permanent exclusion. We will continue to monitor the Council’s progress with this through our case work. Therefore, a further service improvement is not required.

Back to top

Action

71. Within one month of the final decision, the Council has agreed to:
1. Apologise to Miss X for the distress, frustration and uncertainty caused by the delays in arranging the annual review and the OT assessment. 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.
2. Pay Miss X £1300 for the injustice caused by Y’s loss of educational and specialist provision between September 2024-January 2025.
3. Pay Miss X £200 for the distress, frustration and uncertainty caused by the delays in arranging the annual review and the OT assessment.
72. Within three months of the final decision, the Council has agreed to:
1. Provide us with an action plan specifically around how the Council intends to reduce OT assessment wait times.
73. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

74. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Back to top

Investigator's decision on behalf of the Ombudsman