Summary: The Council failed to ensure Ms X’s adult son, Mr Y received the specialist provision in his Education, Health and Care (EHC) Plan since June 2025 when his college removed him from his course. It also failed to carry out an annual review for Mr Y since February 2025. The Council agreed to apologise to Mr Y and Ms X and make a payment to recognise the injustice caused. It also agreed to carry out Mr Y’s annual review without further delay.

The complaint

1. Ms X complained on behalf of her adult son, Mr Y.
2. Ms X complained the Council failed to ensure Mr Y received education in line with his Education, Health and Care (EHC) Plan since December 2024 when he stopped attending the college named in the Plan. Ms X said the college removed Mr Y from its roll in June 2025 and since then no longer had an educational placement to attend.
3. Ms X said the matter means Mr Y has not had any education since December 2024 which has had an impact on his mental health and social development which has also caused her distress and uncertainty.

Back to top

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).

Back to top

How I considered this complaint

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

9. 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.
10. 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.

11. 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).

SEND tribunal

12. 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.
13. 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.
14. This means that if a child or young person is not attending school/college, 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.
15. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
16. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

Reviewing EHC Plans

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. 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. Following the review meeting the council must issue a decision to either 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).
18. 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.

What happened

19. Ms X has an adult son Mr Y. Mr Y is a young adult with special educational needs and has had an EHC Plan in place since statutory school age. Mr Y’s last issued EHC Plan is dated January 2023 and named a mainstream college in section I. Mr Y was enrolled on a BTEC course.
20. The specialist provision outlined in Mr Y’s EHC Plan is mainly around helping him cope in a college environment to support him to complete his course, obtain some GCSE qualifications and learn life and socials skills to help with his independence. Section F of Mr Y’s EHC Plan includes but is not limited to:
• Small class sizes
• Therapeutic approach to teaching
• Access to a key trusted adult
• A social communication and a life skills programme
• Occupational Therapy input (10 hours a year) to develop social skills
• Emotional literacy intervention
21. Mr Y’s attendance at college declined towards the end of 2024 and in December 2024 he stopped attending completely.
22. In January 2025 Ms X complained to the Council that Mr Y was not receiving the provision in his EHC Plan.
23. The Council responded to Ms X in February 2025. It said it had looked through Mr Y’s file to try and gain an understanding of the complaint. It said Mr Y’s last annual review was in November 2023 with the outcome being to maintain the Plan. It said Mr Y’s next annual review was scheduled for February 2025 and it apologised for the delay in holding this.
24. The college held Mr Y’s annual review in mid-February 2025. Records of the review show the college stated Mr Y was not attending and so, would unlikely meet his outcomes. The Council decided to maintain Mr Y’s EHC Plan without amendment and issued its decision letter in March 2025 which included a right of appeal to the SEND tribunal.
25. Ms X escalated her complaint in May 2025. She said Mr Y was now missing in education despite having an EHC Plan. She said the college had withdrawn Mr Y from the course due to his lack of attendance which she blamed on a lack of support from the Council.
26. The Council responded to Ms X at stage two of its complaints procedure in June 2025 and said it would contact her to discuss her concerns.
27. Ms X remained unhappy and in July 2025 she complained to us.
28. Since complaining to us Mr Y has remained without an accessible educational placement after the college withdrew him from the course. The Council said it had arranged interim provision with Provider A to begin from March 2026. It said the delay in doing this was due to the capacity of alternative provision provider.
29. Ms X said a tutor from Provider A met with Mr Y once and then went on sick leave. Ms X said she has heard nothing since and Mr Y remains without accessible education.

My findings

30. When Mr Y stopped attending college around December 2024 his annual review was held shortly after in February 2025. The Council decided to maintain Mr Y’s Plan following the annual review and continue naming the college as his placement. There is no evidence the college could not meet Mr Y’s needs at the time and the decision to maintain Mr Y’s EHC Plan came with a right of appeal to the SEND tribunal. It was reasonable for Ms X and Mr Y to have used that right of appeal at the time if they remained unhappy with the college. Due to our restrictions as set out in paragraphs 14-16 I cannot investigate Mr Y’s lack of education during the period up to June 2025 when the college removed Mr Y from the course.
31. From June 2025 onwards Mr Y did not have an educational placement to attend after the college removed Mr Y from his course. From this point the Council had an ongoing duty to provide Mr Y with the provision in his EHC Plan. Due to the significant change in circumstances it should also have held an early annual review. It did not, which was fault. The Council has accepted there was a delay in securing alternative provision for Mr Y until March 2026 due to the capacity of its alternative provision provider. That was fault.
32. While the Council had arranged a tutor for Mr Y from March 2026 onwards this arrangement did not begin due to the tutor immediately going on sick leave. At the time of writing Mr Y remains with an educational placement to attend and has been without any of the provision in his EHC Plan since June 2025.
33. Mr Y’s last annual review was held in February 2025 and his next one was due in February 2026. To date the Council has not held one. That is fault.
34. The faults outlined above have caused both Ms X and Mr Y an injustice. Mr Y has no educational placement to attend and has not had access to any of the provision in his EHC Plan from June 2025 until the time of writing (end of April 2026). The annual review delays have caused a lost opportunity to resolve matters earlier either by naming a new placement for Mr Y or providing new tribunal appeal rights. All of this has caused Ms X and Mr Y distress, uncertainty and delayed appeal rights.
35. The Council has an ongoing SEND action plan which we are monitoring for compliance. This includes actions around reviewing gaps in alternative provision and how it procures alternative provision providers. We have not received any recent updates on this action therefore I have made a recommendation below for an update on them instead of making another similar service improvement action.

Back to top

Action

36. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mr Y and Ms X for the distress, uncertainty, delayed appeal rights and Mr Y’s loss of educational provision in line with his EHC Plan between June 2025 and April 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.
2. Pay Ms X a total of £3750 to acknowledge Mr Y’s loss of education in line with his EHC Plan and the injustice caused to Ms X between June 2025 and April 2026.
3. Arrange and hold Mr Y’s annual review.
4. To ensure the Council has sufficient procedures and access to alternative provision providers in place it should provide us with an update on its ongoing SEND action plan. Specifically, around its review of gaps in alternative provision providers and its procurement of alternative provision providers.
5. Carry out staff training or hold team briefings for relevant SEND staff to ensure early annual reviews are held without delay for children or young persons with Education, Health and Care Plans where a significant change in circumstances has taken place. For example, when the child or young person is removed from a school or college roll and has no educational placement to attend.
37. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman