Summary: Ms B complained about the way the Council dealt with her daughter J’s education and special educational provision. The Council has accepted there was fault which caused J to miss out on education for four terms. It has agreed to make a payment to Ms B to remedy the injustice caused and to make some service improvements.

The complaint

1. Ms B complained the Council:
1. Delayed issuing a final EHC plan for her daughter after the annual review on 5 October 2023.
2. Failed to provide her daughter with alternative provision while she was out of school from December 2023 to May 2025.
3. Failed to secure the special educational provision in her January 2023 Education, Health and Care plan for the same period.
4. Delayed holding the phase transfer annual review in Autumn 2024 prior to her daughter’s transfer to secondary education.
2. She says this meant her daughter missed out on education and special educational provision and her and the family were caused distress and uncertainty. Ms B wants a full apology and compensation to fund provision to fill the gaps in education.

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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. 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)
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).

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What I have and have not investigated

7. Ms B came to us in August 2025. So her complaint about events prior to August 2024 are late. I have decided there are good reasons to exercise discretion to investigate from December 2023. This is because the apparent fault was continuing and the Council’s complaints procedure was not completed until April 2025.

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How I considered this complaint

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

Relevant law and guidance

Special educational needs

10. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
11. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
12. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Reviewing EHC plans

13. 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)
14. 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.
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.
16. The council must review and amend an EHC plan in enough time before a child or young person moves between key phases of education, such as from primary school to secondary school. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer. To achieve this, the “phase transfer” review meeting should be held in the previous autumn term.

Alternative provision

17. Section 19 of the Education Act 1996 says that a 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 makes 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.
18. 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.
19. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
20. 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.
21. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
22. If a child has an Education, Health and Care (EHC) plan the council also has an ongoing duty to arrange the support guaranteed by the plan. This might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting but any alternative provision must be suitable for the child’s SEN.

My findings

23. As the Council has accepted fault, I have briefly summarised what happened and what the Council has said below.

(a) Delayed issuing a final EHC plan for her daughter after the annual review on 5 October 2023.

24. Ms B’s child, J, has special educational needs, an EHC plan and was attending a specialist school. She was due to start secondary school in September 2025. There was an annual review on 16 June 2023 which recommended some changes to the plan. The Council does not have any evidence of an annual review happening on 5 October 2023.
25. Following an annual review, if the Council agrees to amend the EHC plan, an amendment notice and draft plan should have been issued within four weeks and a final amended plan issued within 12 weeks (i.e. by 8 September 2023).
26. The Council has accepted that annual reviews were not completed and it has no record of any final EHC plan being issued between October 2023 and May 2025. This is fault which causes uncertainty about what SEN provision should have been in place for J and a delay to Ms B’s appeal rights.

(b) Failed to provide her daughter with alternative provision while she was out of school from December 2023 to May 2025.

27. A team around the child meeting in June 2023 (attended by the Council) noted that J had been refusing to attend school since the recent half term due to mental health issues and bullying. The school had put in place a reduced timetable and would arrange home visits, work packs, online learning and tutoring.
28. The Council’s SEND panel noted in January 2024 that J had stopped attending school. The panel decided not to name education other than at school in her EHC plan, but there is no evidence the Council considered whether it owed a section 19 duty to provide alternative provision to J.
29. The school arranged two hours a week tuition for J. Ms B says various other tutors were tried but did not work. J was therefore not receiving a full education. In September 2024, Ms B complained to the Council that a final EHC plan had not yet been issued. She asked for alternative provision to be put in place.
30. A draft EHC plan was issued on 1 October 2024. The Council responded to Ms B’s complaint on 15 November. It apologised for the delay in replying and for not meeting the statutory deadlines in relation to the EHC plan. It was consulting with schools to be named in the plan and an annual review would be arranged.
31. Ms B escalated her complaint in March 2025. She said the school and tutors offered were not suitable for J so she remained without education.
32. The Council’s final complaint response on 16 April said that the school retained responsibility for ensuring educational provision and where attendance on site was not possible, the school was expected to arrange alternative provision. This is fault.
33. The law is clear it is the Council’s duty to arrange suitable education for children who are out of school because of exclusion, illness or otherwise, if they would not receive suitable education without such arrangements. While the Council can delegate the day-to-day implementation of a duty, it cannot delegate the duty itself, and so the responsibility for ensuring education is provided falls to the Council, not the school.
34. Ms B and J moved out of the Council’s area on 1 May 2025.
35. The Council has accepted there was no formal consideration of whether it had a section 19 duty to arrange alternative provision. Nor did it adequately oversee or evaluate whether the school’s provision was effective or sufficient nor keep clear or accurate records. It therefore failed to identify at an early stage that J was not receiving suitable education.
36. This is fault which resulted in a loss of education for J for about four terms, from December 2023 to May 2025. It has also caused Ms B distress.

(c) Failed to secure the special educational provision in her January 2023 Education, Health and Care plan for the same period.

37. As J missed out on education, she also did not receive the provision set out in section F of her EHC plan. This is fault.

(d) Delayed holding the phase transfer annual review in Autumn 2024 prior to her daughter’s transfer to secondary education.

38. As explained in paragraph 16, to ensure the phase transfer review was completed by 15 February 2025, an annual review should have been held in autumn 2024. There is no evidence of any review meeting after June 2023. This is fault which causes uncertainty about whether the provision was appropriate.

Remedying the injustice caused by fault

39. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been. This is because it is not possible to now provide the services missed out on.
40. Where fault has resulted in a loss of educational and SEN provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the harm caused by that loss.
41. The Council has offered to make a payment of £7,200 (£1,800 per term). I am satisfied that this is an appropriate and proportionate remedy in line with our guidance. In reaching that view, I have taken into account that:
• Additional provision now could remedy some or all of the loss.
• The period concerned was a significant one up to her transfer to secondary school.
• Ms B lost her right of appeal to Tribunal.
• J may not have been able to access a full-time education in school.
42. The loss of education also caused distress to Ms B. The Council has offered to apologise and make a payment of £750 to remedy this. This is in line with our guidance.
43. The Council has also agreed to make service improvements, detailed below.

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Action

44. The Council has agreed to take the following actions.
45. Within a month of my final decision it will apologise to Ms B and pay her £7,200 to remedy the loss of education to J and £750 to remedy the distress caused (£7,950 in total).
46. 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.
47. Within three months of my final decision, it will:
1. Remind SEND officers of the need to actively monitor and review the effectiveness of reduced, alternative, or off-site educational arrangements; as well as improve record keeping to ensure that oversight, decision-making, and consideration of Section 19 duties are clearly evidenced.
2. Reinforce the importance of progressing statutory annual reviews and EHC plan amendments within required timescales (in line with its Priority and Improvement Action Plan).
48. The Council should provide us with evidence it has complied with the above actions.

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Decision

49. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman