Summary: The Council was at fault in that it delayed amending the complainant’s son’s Education, Health and Care Plan. The Council has accepted this and offered a remedy for the avoidable distress which we consider is appropriate. However, in addition, the Council was at fault in that it did not exercise sufficient oversight of the alternative education provided to the complainant’s son by the school. The Council has agreed a remedy for this. We have therefore completed our investigation and are closing the complaint.

The complaint

1. Mrs X complained that:
1. the Council delayed in issuing a final amended Education, Health and Care (EHC) Plan for her son, Y, after the annual review of May 2024 and the Council delayed in dealing with Mrs X’s complaints about this; and
2. Y is not attending the named special school (School B) because it is too far. The school has offered ‘remote’ learning, but Mrs X says this is unsuitable for Y and does not meet the needs of his EHC Plan. Mrs X has complained to the Council, but it keeps referring her back to School B.
2. Mrs X says that, because of the above faults in (b), Y is not receiving appropriate education and the Council’s delay in issuing the amended final EHC Plan has delayed her right of appeal to the Special Educational Needs and Disability (SEND) Tribunal.

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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’.
4. 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. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
7. 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).
8. But, if there are issues separate from the substance, consequences or conduct of an appeal, we may be able to investigate.
9. 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).

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What I have and have not investigated

10. I have investigated matters from May 2024 which is when the Council reviewed Y’s EHC Plan. At the end of August 2025, the Council issued a final amended EHC Plan. Mrs X has appealed to the SEND Tribunal.
11. We cannot look at any complaint or issue which Mrs X is referring to, or could refer to, the SEND Tribunal. Mrs X is appealing about the named placement and description of Y’s special educational needs.
12. However, Mrs X is concerned that School B’s remote online teaching is not meeting Y’s needs. If we decide that the support in an EHC Plan is not being delivered to the child or young person, and the cause is not connected to an appeal, then we can look at this complaint.
13. I decided that because the Council should have oversight of how the named school is meeting Y’s needs, we can look at Mrs X’s concerns on this point. But we cannot comment on any complaints which are part of Mrs X’s appeal.

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How I considered this complaint

14. I considered evidence provided by Mrs X and by the Council as well as relevant law, policy and guidance, set out below. I spoke to Mrs X on the telephone.
15. I issued a draft decision statement to the Council and to Mrs X, and have taken into account their further comments before reaching my final decision.

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What I found

EHC Plans

16. 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. 
17. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date.
18. 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) 
19. 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.
20. Where a child is due to transfer to a secondary school, a council should issue a final EHC Plan by 15 February in the year the child is due to transfer. This is to give parents/carers sufficient time to appeal to the SEND Tribunal before the start of the transfer.
21. 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).

Alternative provision

22. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age receive a suitable full-time education. Failure to meet this duty is an offence.  
23. 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. We refer to this as section 19 or alternative education provision.
24. The Children, Schools and Families Act 2010 clarified that a suitable education means fulltime education. The only exception is where the physical and/or mental health of the child means fulltime education would not be in the child’s best interests.
25. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
26. Schools should notify the council of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.
27. 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.
28. 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.

Facts of this case

Complaint (a): delay in issuing an amended EHC Plan after the annual review in May 2024

29. Y has a diagnosis of autism and attention deficit hyperactivity disorder (ADHD) and related difficulties. He attended his local primary school named in his EHC Plan. Y’s attendance was good, although he was on a parttime timetable. Y was due to transfer to a secondary school in September 2025.
30. In mid-2025, Y was diagnosed with dyslexia.
31. The Council held an annual review of Y’s EHC Plan in May 2024. Y continued to attend the named primary school. The Council should have amended his EHC Plan within twelve weeks of the annual review.
32. After May 2024, the Council told Mrs X that it would amend Y’s EHC Plan. But it did not. In March 2025, the Council’s Panel decided that Y should be placed in a mainstream secondary school (from September 2025) with access to additional resources.
33. The Council told Mrs X its decision. Mrs X expressed concern that she had not been asked to express a preference and concern about the Council’s intention to place Y in a mainstream setting.
34. Mrs X then complained to the Council about its delay in issuing an amended EHC Plan after May 2024, and also by February 2025, as required given Y was due to transfer to secondary school that year.
35. Mrs X told the Council that she wanted Y to be placed at a secondary special school close to her home, School C. The Council told her it had consulted School C, but it said that it could not meet Y’s needs. Mrs X raised concerns about the description of Y’s needs which she said was misleading and inaccurate and may have accounted for School C’s refusal. But this is a matter for the forthcoming SEND appeal.
36. The Council told me that it could not direct School C to admit Y because it is not an approved special school by the Department of Education.
37. Between April to July 2025, the Council accepts it took no action to progress the issuing of an amended EHC Plan naming a secondary school. In late July, it agreed amendments to Y’s EHC Plan were required.
38. Mrs X did not receive a response to her complaint, so she referred the matter to the Ombudsman. The Council then issued a final complaint response at the end of August 2025. The Council accepted it had also delayed in dealing with her complaint.
39. The Council apologised to Mrs X and offered her a symbolic payment of £500 for the avoidable distress and £500 for the time and trouble in pursuing this matter.
40. Mrs X has not accepted this because she remains concerned that the Council is still failing to provide Y with an appropriate education.
41. The Council accepts that the failure to issue an EHC Plan by 15 February 2025 has delayed Mrs X’s appeal and means her disagreement with the EHC Plan could not be resolved in time for the start of the academic term of September 2025.
42. Failing to deal with the complaints about this delay has also compounded her avoidable distress and frustration.

Complaint (b): School B has offered ‘remote’ learning, but Mrs X says this is unsuitable for Y and does not meet the needs of his EHC Plan. Mrs X has complained to the Council, but it keeps referring her back to School B

43. As there was initially no named secondary school placement, the Council agreed to provide some tutoring as an interim measure. This was cancelled at the end of September 2025 as School B had been named as the appropriate placement.
44. Mrs X’s appeal to the SEND Tribunal hearing is to be heard in November 2026.
45. In early October 2025, the Council explained to Mrs X that School B was responsible for safeguarding Y. Mrs X says that it was not possible for Y to attend School B because the journey was too long (an hour) and Y could not go in a taxi without an escort. The Council says it has offered transport although it is not clear what has been offered.
46. However, School B has authorised many of Y’s absences and agreed to provide online learning for Y. So, by implication, it accepts Y cannot attend.
47. Mrs X says the online tuition was and remains unsuitable because Y requires direct tuition and all School B has offered is online. Mrs X has been forced to pay for a tutor for Y. Y wants to learn.
48. The Council says that it became aware that Y was not attending school in mid-November 2025 during his annual review. However, the distance is such that School B can only provide online learning. School B is in touch with the tutor which Mrs X has arranged for Y to discuss appropriate books and learning material. Mrs X says School B is now providing three 45 minutes per week of online learning. But this remains unsuitable for Y.
49. In January 2026, Mrs X wrote to the Council explaining that School B was not meeting Y’s needs as set out in his EHC Plan and that there were unresolved technical difficulties with the laptop provided by School B (these have now been resolved). She asked the Council to consider providing alternative education under section 19. Mrs X says that she had no response.
50. The Council says that it has not provided alternative education because Y has a school place and that provision is being made through the school. It considers that Mrs X does not want Y to attend School B. Therefore, there is an available school placement for Y and there is no requirement on the Council to arrange section 19 education.

Findings

51. Mrs X took up the offer of a school place for Y. But School B has accepted that Y cannot attend and therefore it is arranging alternative provision by means of online tutoring.
52. What responsibility does the Council now have? The Council has an oversight role in respect of the online teaching School B is providing. It should also be checking whether online tuition on a parttime basis is suitable for Y and whether the requirements of his EHC Plan are being met.
53. I cannot see evidence that the Council has done this. Therefore, I find fault with the Council and Y is potentially missing out on a suitable education. I also note that the Council accepts that Mrs X is providing a tutor for Y and School B is working with that tutor.

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Action

54. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred. We also support organisational learning and improvements to help others.
55. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
56. Within one month of the final statement, the Council will:
1. apologise to Mrs X for the faults and injustice which I have identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
2. make the payment of £1000 (which it has already offered) for the avoidable distress and time and trouble for the delays in complaint (a). I am not recommending any payment for lost education during this period (May 2024 to July 2025) because Y was attending his primary school up to July 2025;
3. the Council will carry out an immediate review (within two weeks of the final statement) of the suitability of the online tuition Y is receiving and consider whether it should provide additional tuition itself or via School B. It also needs to consider Mrs X’s concern that Y requires direct tuition. The Council should discuss the situation with Mrs X, and provide a written assessment of its review; and
4. since November 2025, the Council has been aware that Y was not attending School B but instead was receiving online tuition. In view of the Council’s delay in assessing the suitability of this, and its lack of oversight, the Council will meet the costs of the tuition which Mrs X has paid for, backdated to the beginning of December 2025. Mrs X should provide invoices for the backdated period (December 2025 to end of May 2026), and invoices for future tuition.
57. The Council should provide us with evidence it has complied with the above.

Service Improvements

58. We have investigated other complaints against the Council in which we have made service improvement recommendations.
59. I have not made recommendations relating to the EHC Plan process delays or its complaints handling. This is because the Council has an action plan to address delays in its EHC Plan process, and it has carried out steps to respond to complaints within timescales set out in its complaints policy. The Council has also been asked to tell us what steps it is taking to ensure it considers its section 19 duty once it has identified children with a long-term part-time education timetable.

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Decision

60. I find fault causing injustice. I have recommended a remedy for this which the Council has accepted. Therefore, I have completed our investigation and am closing the complaint.

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Investigator's decision on behalf of the Ombudsman