Summary: The Council delayed completing Miss X’s child Y’s Education, Health and Care (EHC) Plan annual review and delayed amending the Plan. It also failed to consider whether it owed an alternative education duty between 2024 and 2026 when Y struggled to attend school due to a medical issue. The Council agreed to apologise to Miss X and make a payment to acknowledge the injustice the faults caused.

The complaint

1. Miss X complained the Council failed to review and amend her child, Y’s Education, Health and Care (EHC) Plan for nearly four years since 2022. She said the Council reviewed Y’s EHC Plan in March 2025 but delayed issuing the amended Plan until January 2026.
2. Miss X said the outdated EHC Plan did not meet Y’s needs and contributed to poor attendance at school. She said this caused distress, uncertainty and impacted on Y’s education and development.

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. 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. 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.
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

What I have and have not investigated

7. 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)
8. I have investigated matters from September 2024 until January 2026 when the Council issued Y’s amended EHC Plan. Matters prior to September 2024 are late. Miss X could have complained earlier to both us and the Council about concerns about Y’s EHC Plan prior to September 2024 and there are no good reasons to go back and investigate that period now.

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.
12. 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

13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs.

Reviewing EHC Plans

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.
15. 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.

Alternative provision

16. Section 19 of the Education Act 1996 says that the council 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.
17. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this, and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision
18. 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)

What happened

Background

19. Miss X has a child, Y who is of primary school age. Y has special educational needs and in 2022 the Council issued them with an EHC Plan while they were of pre-school age attending nursery. That EHC Plan named a mainstream primary school (School A) for Y to attend from September 2022 onwards.
20. Records show an annual review meeting was held in July 2023 but the Council did not issue an amended EHC Plan.
21. Since the Council issued Y’s EHC Plan in 2022 Y’s needs changed. Y has been diagnosed with autism and struggles with sleep which is supported by GP and hospital letters. Miss X said this impacted on Y’s attendance at School A during the 2023/24 academic year which records show was at 50%.
22. There was no annual review held during 2024.

July 2024 onwards

23. At the start of the 2024/25 academic year Y’s EHC Plan which the Council issued in 2022 remained in place. Section F of that Plan outlined provision Y was entitled to which included:
• one to one adult support throughout the day for structured teaching and to enable participation in play activities and small group work
• Daily one to one adult led activities that focus on turn taking and self-care needs
• Specialised communication environment
24. Y’s attendance during the 2024/25 academic year was 73% with absences mainly due to illness or sleep issues which prevented them attending. The absences were recording as a mix of authorised and unauthorised.
25. Y’s school held an annual review in March 2025. Various teaching staff, Y’s specialist one to one teachers and an officer from the Council. Miss X said she was not notified about the review and therefore she did not attend. The Council told us it had no record of inviting Miss X to the meeting. Records show Miss X was later sent a form to capture her views in July 2025. These were then incorporated into the annual review records.
26. The completed annual review records show Miss X wanted Y to move to a special school and noted Miss X was unhappy that Y’s EHC Plan was out of date. The records note Y struggled with sleep which was impacting on their ability to attend school consistently which was impacting on their education. The review recommended the Council amend Y’s EHC Plan as it was three years out of date.
27. In May 2025 the Council took court action against Miss X over Y’s unauthorised absences from school which resulted in a fine.
28. Miss X complained to the Council in June 2025 that Y’s EHC Plan had not been updated since 2022. She outlined Y’s autism diagnosis and sleep disorder which was impacting on their ability to attend school and were not included in Y’s EHC Plan due to how out of date it was.
29. The Council responded to Miss X in September 2025. It apologised that Y’s EHC Plan was out of date and said it was currently reviewing the Plan to ensure Y’s sleep needs were considered.
30. Miss X remained unhappy and complained to us.
31. Y stopped attending School A in January 2026 and School A confirmed Y was no longer on roll. The Council issued Y’s amended final EHC Plan a few days later. No school placement was name in the Plan. The Council provided a letter which explained Miss X’s right of appeal. Section F of Y’s EHC Plan remained broadly the same.
32. Following a mediation meeting about the final Plan the Council agreed to carry out an EHC needs reassessment for Y.

The Council’s response to us

33. The Council accepted significant delays in amending Y’s EHC Plan. It said Y’s attendance issues were caused by frequent sleep related absences and this was the primary barrier to regular attendance and engagement. It said it was aware of the sleep issue throughout the EHC Plan amendment process. The Council said Y’s absence was medically driven and conceded that formal consideration of its Section 19 duty to Y was delayed until after mediation.

My findings

Amending Y’s EHC Plan

34. The Council should have ensured another annual review of Y’s EHC Plan was held in mid-2024 after failing to complete the review held during 2023. No Annual review was held in 2024 which was fault. It meant Y began the 2024/25 academic year with an out of date EHC Plan.
35. Following the annual review held in March 2025 the Council should have issued Y’s amended final Plan by mid-June. However, Miss X was not invited to the review meeting and her views were not collected until July 2025. That was fault. There was further drift and delay until the Council issued the amended Plan in January 2026 which was a delay of 33 weeks (7.5 months) over the statutory timescales. That delay was fault.
36. The faults meant Y remained with an EHC Plan which was out of date and written for them before they were statutory school age. It leaves uncertainty around whether more could have been done to support Y’s attendance and engagement at school with a Plan which reflected Y’s needs.
37. The faults also delayed Miss X’s right of appeal and caused distress and uncertainty. Ultimately Miss X requested mediation and the Council agreed to complete a needs re-assessment for Y which may have been agreed earlier had the Council met timescales.

Y’s education

38. Y’s had attendance issues during both the 2024/25 and the 2025/26 academic years with much of the absences being sleep related. The Council had evidence and information to hand as early as 2024 about Y’s diagnosis of autism and their sleep disorder and there is clear evidence that informed the March 2025 annual review about Y’s sleep issues. The Council in it response to us accepted much of Y’s absence from school was because of sleep issues which it described as ‘medically driven’. This being the case the Council should have considered whether Y required alternative provision earlier during 2024. The Council failed to consider whether alternative provision was appropriate during these periods which was fault. Given Y was still attending school any support would unlikely have been a full alternative provision package. It does however leave uncertainty around whether more could have been done to support Y.
39. The Council has an ongoing SEND improvement plan which it published during 2025 to be delivered by June 2026. This includes actions to improve the timeliness and oversight of EHC Plans and annual reviews. The improvement plan also outlines actions to improve how it considers and implements Section 19 alternative provision. Given this I have not made further service improvement recommendations and we will monitor compliance through our casework.

Back to top

Action

40. Within one month of the final decision the Council agreed to apologise to Miss X and pay her a total of £1200 to acknowledge the injustice caused to her and Y by the delay in completing Y’s annual review and amending the EHC Plan. The payment also remedies the uncertainty caused by the Council’s failure to consider its Section 19 duty when Y was struggling to attend school.
41. 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.
42. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

43. I found fault causing injustice and the Council agreed to my recommendation to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman