Summary: The Council delayed issuing an amended Education, Health and Care (EHC) Plan for Mrs X’s child Y. It also failed to properly respond to Mrs X’s complaint. This caused Mrs X frustration and uncertainty but did not result in Y missing out on the provision in their EHC Plan or receiving alternative educational provision. The Council has agreed to make a payment to Miss X.

The complaint

1. Mrs X complained the Council delayed issuing an amended Education, Health and Care (EHC) Plan for her child, Y, following an annual review in December 2024. She says the delay meant Y did not have access to a school that could meet their needs and meant they missed out on two terms of education and the provision in their existing EHC Plan. Mrs X says this impacted Y’s development and caused her and her family severe distress. She wants the Council to apologise and compensate her for the impact of the delays.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

6. Part of Mrs X’s complaint to the Council was about the way it responded to a Subject Access Request. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner. I have not investigated this part of Mrs X’s complaint.

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How I considered this complaint

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

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What I found

The Law

Education, Health and Care (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. 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. 

Maintaining the EHC Plan

10. 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)  
11. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Reviewing the EHC Plan

12. 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) 
13. 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.
14. 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

15. 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. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
16. 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.
17. 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)
18. 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.
19. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 

Background

20. The Council issued a final EHC Plan for Mrs X’s child Y in March 2024, ahead of Y moving from nursery to primary school. The EHC Plan named School A from September 2024. The provision in the Plan included individual 1:1 support and supervision throughout the school day. The Plan specified the individual would support Y with provision such as emotional literacy, turn taking and relationship building.
21. The Council agreed funding for Y’s 1:1 support and Y began attending school A in September 2024.

What happened

22. The Council carried out its annual review of Y’s EHC Plan on 5 December 2024. The review said the Council should consider amending Y’s EHC Plan as their needs had changed since nursery. The review noted Y had struggled to achieve the outcomes in the current EHC Plan. It said Y often became dysregulated and physical toward his supporting adult. Mrs X asked for a change of placement.
23. On 16 January 2025 the Council wrote to Mrs X. It said it had decided not to amend Y’s EHC Plan following the annual review. Mrs X asked the Council to enter mediation over its decision. On 25 February 2025 the Council agreed to amend Y’s EHC Plan.
24. In March 2025 Mrs X chased the Council for Y’s amendment notice. Y’s attendance record at school A shows that Y moved onto a part time timetable around this time.
25. In April and May school A reported increasingly disruptive behaviour from Y, which Mrs X told the Council about. During this time Mrs X continued to chase the Council for Y’s amendment notice. The Council issued an amendment notice along with a draft EHC Plan on 30 May 2025.
26. Mrs X returned the draft EHC Plan with parental amendments on 12 June 2025 and told the Council she would prefer Y to attend a special school, school B. At the end of June, the Council said it was reviewing the amendments and hoped to provide an update soon. The Council began consulting with prospective schools for Y at the start of July 2025. There was a slight delay in sending the consultations. The Council intended to send them on the 2 July but did not do so until 8 July 2025.
27. Mrs X complained to the Council. She said the Council had delayed amending Y’s EHC Plan and consulting with potential schools, failed to keep her informed and failed to incorporate her proposed amendments to the draft EHC Plan.
28. In late July 2025 the Council told Mrs X it wanted to consult with more settings. Mrs X asked for an update on the current responses. Only School B had said it could meet Y’s needs.
29. The Council responded to Mrs X’s complaint at stage one of its complaint process. It accepted it had failed to meet the statutory timescales for amending Y’s EHC Plan. It said this was due to continued consultations with potential schools for Y. It apologised for the delay. The Council also accepted it had not kept Mrs X informed of progress.
30. Mrs X remained unhappy and asked the Council to escalate her complaint to stage two of its complaint process. She said the Council had consulted with more schools without telling her and the EHC Plan remained delayed. She said school B could meet Y’s needs and the Council was ignoring this.
31. The Council’s SEN Panel considered the proposed final EHC Plan in early August 2025 but deferred its decision as it wanted to wait for another school to respond to its consultation. A few days later the panel agreed a placement at school B. The Council issued Y’s final EHC Plan, naming school B, on 18 August 2025.
32. The Council responded to Mrs X’s stage two complaint in late August 2025. It again accepted it had delayed amending Y’s EHC Plan. It said it was unable to make a finding on why it had not named school B earlier as its SEN service had not responded on this point.
33. Y started school B in September 2025. In response to our enquiries the Council accepted shortcomings in its communication with Mrs X. It said it had now implemented a new structure to identify breakdowns in school placements sooner to ensure earlier intervention.
34. The Council has also been implementing an action plan to improve its SEN service since January 2025. Because the Council is already taking suitable steps, I have not made any service improvement recommendations regarding its SEN service. We will continue to monitor the Council’s progress through our casework.

My findings

Delays to Y’s amended EHC Plan

35. Following Y’s annual review, the Council initially decided not to amend Y’s EHC Plan. Mrs X entered mediation over this decision and had a right of appeal to the SEN Tribunal. We cannot investigate the Council’s decision not to amend Y’s EHC Plan.
36. Following mediation, the Council decided to amend the EHC Plan on 25 February 2025. It should have issued Y’s final amended EHC Plan no later than 25 March 2025. The Council did not issue the amended EHC Plan until 18 August 2025, a delay of almost five months. This was fault.
37. On balance, I cannot say Y would have moved to school B sooner, and received the SEN provision from school B, had the Council issued the amended EHC Plan in March 2025. Considering the evidence, it is unlikely school B would have been able to facilitate a mid-term move. While the delay in issuing the EHC Plan caused Mrs X frustration and uncertainty over the SEN provision Y was entitled to, it did not result in Y missing out on SEN provision at school B.

Y’s SEN Provision

38. The Council was under a duty to secure the provision in Y’s March 2024 EHC Plan until it issued the final amended EHC Plan in August 2025. I am satisfied the Council secured the 1:1 support for Y specified in the EHC Plan. While Y moved onto a part time timetable from early 2025, the provision remained secured when Y was able to attend school. The Council was not at fault.

Alternative provision

39. Y struggled to attend school full time from early 2025 and school A placed Y on a part time timetable. DfE guidance allows for this as a short-term measure as part of efforts to re-integrate a child into school. Y was on a part time timetable for around one term before moving to school B. School A remained available and accessible to Y during this time. While there is no record of the Council considering its section 19 duties, there was also no explicit request for alternative provision from either school A or Mrs X. I am satisfied there was no role for the Council in providing alternative provision while Y was receiving the part time timetable at school A. The Council was not at fault.

The Council’s complaint handling

40. While the Council accepted delays in issuing Y’s EHC Plan in its complaint response, it failed to respond properly to Mrs X’s stage two complaint, saying it could not respond as it had not received a response from the SEN service. This was fault and caused Mrs X further frustration and uncertainty over the Council’s response to her complaint.

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Action

41. Within one month of the final decision the Council has agreed to pay Mrs X £200 to recognise the frustration and uncertainty caused by the delay in issuing Y’s amended EHC Plan and its incomplete complaint response.
42. We publish the Complaint Handling Code which sets out best practice in how councils should deal with complaints. In this case, we found the Council at fault because it failed to properly respond to Mrs X’s complaint. Within three months of the final decision, in order to prevent similar faults from happening in future, the Council has agreed to consider our guidance and tell us what action(s) it will take to improve the way it deals with complaints.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

44. I find fault causing which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman