Summary: The Council was at fault because of a significant delay in issuing an amended education, health and care plan. We cannot say this led to a loss of education, but it did cause frustration and uncertainty. There was also fault by the Council because it did not make arrangements to implement elements of specialist provision, which could have practically been made despite the complainant’s son being absent from an educational placement.

The complaint

1. I will refer to the complainant as Mrs D.
2. Mrs D complains there was a significant delay by the Council in issuing an amended education, health and care (EHC) plan for her son, F, after an annual review in 2024. She says, as a result, F was left without education or the specialist provision set out in his plan for an extended period. Mrs D also says the Council was not responsive to her attempts to contact it to discuss these matters.

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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’. 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)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.

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How I considered this complaint

6. I considered evidence provided by Mrs D and the Council as well as relevant law, policy and guidance.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. F has physical and learning disabilities and is subject to an EHC plan. After attending a specialist school, he moved to a mainstream college after turning 16, but stopped attending at the end of the 2023/24 academic year for medical reasons.
9. In February 2025 Mrs D submitted a stage 1 complaint to the Council. She complained there had been an annual review of F’s EHC plan in June 2024, but the Council was yet to make a decision on whether to maintain, amend or cease his plan. Mrs D also complained she had made repeated attempts to contact the Council about this between July and December, but without response. She said F had been deprived of education and specialist provision because of this.
10. The Council responded in March. It acknowledged it should have issued an amended EHC plan for F by September and apologised for this. The Council said it had now issued a draft amended plan, and would shortly issue the final version. It explained it had recently provided training to staff in an effort to improve timeliness, and offered Mrs D £500 as a remedy for the frustration and uncertainty the delay had caused. The Council also apologised for the limited contact Mrs D had received.
11. However, the Council said, due to F’s age, it had no duty to arrange education for him, and that it was for F to secure his own education, employment or training. It said its duty was to ensure the delivery of specialist provision set out in an EHC plan for a young person in an educational placement; and that, because F’s specialist provision was there only to support his education, it was not possible to implement this if he was not in a placement.
12. After escalating her complaint to stage 2 in April, the Council responded in May. The investigator considered the Council’s response to stage 1 remained appropriate, though they noted the final EHC plan had been delayed by a further eight working days from the date mentioned in the stage 1 response. The investigator made a recommendation for the Council to consider offering Mrs D an additional remedy for this, and for the inadequate level of contact it had acknowledged in the stage 1 response.
13. Mrs D then referred her complaint to the Ombudsman in July.

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Legislative background

EHC plans

14. 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. 
15. 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 discontinue 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) 
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.

Section 19 duty

17. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child of compulsory school age 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. We refer to this as the Council’s ‘section 19 duty’.

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Analysis

18. After the meeting to carry out the annual review of F’s EHC plan, the Council had four weeks to inform Mrs D whether it intended to cease, amend or maintain the plan. It did not do so. Nor did it then issue the final amended plan within a further eight weeks, as the law requires. In fact it took the Council until April, some seven months past this deadline (and approaching the point that F’s next annual review was due), to issue the plan. This, inevitably, is fault, as the Council has recognised.
19. Mrs D says this delay was responsible for F being out of education, and also not receiving the specialist provision set out by his EHC plan. I will address each of these points in turn.
20. In its response to Mrs D’s complaint, the Council said it had no duty to arrange an educational placement for F, because of his age. In response to my enquiries, the Council confirmed it was referring to its section 19 duty with this comment.
21. In the narrow sense this is correct. The Council has a duty to arrange alternative educational provision for a child who is unable to attend school for a qualifying reason, but this only applies while they are of compulsory school age, which is up to the end of the academic year in which the child turns 16. F was 19 during the relevant period of time, and so the Council did not have any duty to arrange alternative provision, even accepting he had stopped attending his college placement.
22. However, because F had an EHC plan, the Council still had a duty to secure the placement named in the plan. It was wrong for it to say this was simply a matter for F to address.
23. While I am satisfied the Council’s comment to this effect was incorrect, this does not mean I can find the delay in issuing the EHC plan was responsible for leaving F without an educational placement. When the Council issued the plan in April 2025, it did not name a particular placement for him, instead writing he should attend a “college of general further education”. Councils are permitted to include a ‘by type’ placement in this manner, typically with the expectation the matter will later be settled on appeal to the Tribunal.
24. The significant delay in issuing F’s amended EHC plan meant there was a consequential delay in his right to appeal to the Tribunal. I am satisfied this caused an injustice, in the sense it created frustration and uncertainty; but it would be very speculative to say F would have had an educational placement for all, or even some, of the 2024/25 academic year, had it not been for this delay. This is especially so because the Tribunal itself is currently subject to significant delays in hearing appeals.
25. I also cannot say the Council should have named a specific placement on the EHC plan, precisely because this is a matter for the Tribunal to consider instead.
26. Turning to the question of specialist provision, under section 42 of the Children and Families Act 2014, councils have a duty to secure this, regardless of the status of any appeal, and regardless of whether the child or young person is attending an educational placement.
27. However, when a child or young person is not attending a placement, we do recognise it may not be practical to deliver certain types of specialist provision. For example, the provision may be designed simply to create an amenable learning environment in a school or college, rather than any specific instruction or education in itself.
28. And this is, in summary, the position the Council has taken in F’s case – that it could not implement his specialist provision, because its purpose was to support him in his placement.
29. In speaking to me, Mrs D brought up three elements of F’s specialist provision, which she felt could have been delivered even outside of a college placement: speech and language therapy (SALT), occupational therapy (OT), and psychology.
30. The EHC plan says F’s psychology provision should be “integrated into the curriculum”. For this element therefore, I am satisfied the Council is correct to say it could not be delivered while F was not attending a placement.
31. For SALT and OT though, I find the Council’s position less persuasive.
32. Reviewing F’s EHC plan, I can see some elements of SALT provision are there to provide guidance and support to staff in the classroom. Again, therefore, I accept these were not applicable while F was not attending. However, the plan also includes other elements of direct, individual therapy for F. There is no obvious reason why this could not continue, even in his absence.
33. In response to my enquiries, the Council explained F had previously been receiving SALT from a private provider, but it had decided its own provider should take over responsibility from September 2024. But, because F did not return to college as planned, this transfer did not happen. The Council went on to explain Mrs D had subsequently requested an ‘education other than at school’ (EOTAS) package for F, which it refused.
34. This may be so, but I do not see why any of this should have prevented the Council from making arrangements for F to receive SALT. I note, in particular, Mrs D has explained F was previously receiving his private SALT sessions in the evening anyway, reinforcing the fact he did not need to be attending college for this to be practical.
35. I take a similar view on the OT aspect. In its response to my enquiries, the Council highlighted the “school based OT” set out in the EHC plan; but, again, while some of this is about providing support in the classroom, other elements, such as a touch typing programme, appear to be direct, ‘standalone’ provision which could also be delivered outside the classroom.
36. Taking these points together, therefore, I am satisfied the Council could have made arrangements for F to have received at least some of his SALT and OT provision, even accepting he was not attending an educational placement at the time. I do not accept the Council’s position this was an unavoidable consequence of his absence.

Conclusions

37. The Council was at fault for the long delay in amending and reissuing F’s EHC plan.
38. I cannot say F would have had an educational placement if it were not for this delay, but the frustration it caused, and the consequent delay to his right of appeal, represent an injustice.
39. Separately, I also consider the Council to be at fault for not giving proper consideration to which elements of F’s specialist provision could be delivered while he was absent from a placement, and making arrangements to do so.
40. The Council has already offered to pay Mrs D £500, to reflect the frustration and uncertainty caused by the delay in issuing F’s EHC plan. I consider this is actually somewhat more than the Ombudsman would typically recommend for a similar injustice. However, the Council’s offer does not reflect the loss of specialist provision F suffered during the relevant period.
41. Our published guidance on remedies says we will normally recommend a payment of between £900 and £2400 per term, to recognise a loss of education arising from a council fault; but this is intended to apply to core education, not specialist provision such as SALT or OT, for which the guidance says we will recommend a smaller payment.
42. In addition, and although I am not in a position to quantify exactly how much of the required SALT and OT provision it could still have made arrangements for, I am still conscious there were some elements which were designed for delivery in the classroom.
43. For this reason I consider it appropriate to recommend the Council offer Mrs D £500 to reflect the loss of this specialist provision. I also consider a remedy of £300 is appropriate to recognise the impact of the delay in issuing F’s amended EHC plan; in total, therefore, I recommend the Council offer Mrs D £800 as a remedy.
44. The Council has confirmed it has already paid £550 to Mrs D, in accordance with the recommendations from its own investigation. The Council should discount this from the remedy I have recommended, meaning it should now make a net payment to Mrs D of £250.
45. Separately, I note the Council apologised in its stage 1 response for the delay in issuing the EHC plan. However, I consider the Council should also write a formal letter of apology to Mrs D, reiterating this, as well as recognising the injustice caused by its failure to arrange SALT and OT.
46. Mrs D has also complained the Council was not adequately responsive to her attempts to contact it. I note, again, the Council has acknowledged and apologised for this, but I consider it would be appropriate for it to formalise this by also including it in its letter to Mrs D.

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Action

47. Within one month of the date of my final decision, the Council has agreed to:

• offer to pay Mrs D £250 (£800, less the £550 it has already paid), to reflect the frustration and uncertainty caused by the delay in issuing F’s EHC plan, and for the loss of elements of specialist provision;
• write a formal letter of apology to Mrs D for the same reasons, and to acknowledge its failure to respond promptly to her contacts. 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.

48. The Council should provide us with evidence it has complied with the above actions.

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Decision

49. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman