Summary: Miss X complained the Council delayed amending her child’s Education Health and Care Plan and did not provide suitable education. Miss X says this caused her child to miss education and caused her avoidable distress. We find fault with the Council which caused injustice. The Council has agreed to apologise and make a symbolic financial remedy to Miss X.

The complaint

1. Miss X complains about the Council’s handling of her child, Y’s, education. Specifically, she complains the Council:

1. Delayed amending the Education Health and Care Plan;
2. Did not provide suitable education;
3. Did not provide transport once it provided suitable education; and
4. Communicated with her poorly.

2. Miss X says this caused her child to miss out on education. She says it caused her unnecessary stress and uncertainty.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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. 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.
6. 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)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide it would be reasonable for the person to ask for a council review or appeal. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
9. 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)
10. 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.

Back to top

What I have and have not investigated

11. I consider it was not reasonable for Miss X to use her right to appeal the named school and contents of the EHC Plan in October 2024. This is because the Council began its consultation process for alternative providers and issued a Plan with proposed amendments by the two-month deadline she had to use her right to appeal. I have therefore investigated part b of the complaint.
12. Miss X complains the Council declined her request to provide transport for her child. The Council provided her with a review right when it told her its decision. I consider it was reasonable for Miss X to use her right to review. For this reason, I have not investigated part c of her complaint.
13. I have investigated part a, b and d of the complaint.

Back to top

How I considered this complaint

14. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
15. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
16. 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 found

What should have happened

17. 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 council can do this.

Statutory timescales (part a of the complaint)

18. 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) 
19. 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.
20. 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.

Suitable education (part b of the complaint)

21. 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.
22. 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.
23. 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.
24. 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. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
25. 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. 

What happened

26. Y had an EHC Plan. The Plan named a mainstream school and said Y would receive one-to-one support throughout the school day.
27. In July 2024, Miss X told the Council that Y’s Plan did not reflect their needs, and they were not being properly supported by the named school which was impacting their attendance. She requested an emergency review.
28. In early September, the Council sent the school some information about options to support Y.
29. In late September, the school and Miss X agreed a temporary reduced timetable for Y.
30. In late September, the Council held an interim review meeting. The school told the Council Y’s attendance was over 90% so far that term.
31. In October, the Council decided to not to amend the Plan and provided Miss X with her right to appeal its decision.
32. In late October, the school told the Council Y was at risk of permanent exclusion. The school requested support for Y to attend a short-term intervention placement. The Council told the school the service was at capacity and Y would need to join a waiting list. It decided to hold another annual review meeting.
33. In November, the Council held another annual review meeting. The school told the Council Y’s attendance had significantly reduced. It told the Council this was because of their reduced timetable, a temporary exclusion and due to Y’s tiredness. It told the Council it could no longer meet Y’s needs.
34. The Council asked Miss X for her preference before consulting other placements. Miss X gave her preference and told the Council Y was still attending the named school. The Council consulted with Miss X’s preferred placement.
35. In late November, Y stopped attending school.
36. The Council made a referral to its alternative provision provider.
37. In December, the Council issued an amended draft EHC Plan.
38. In February 2025, the alternative provision provider considered the Council’s referral for Y. The Council sent chasers to the consulted placements.
39. In March, the Council received the consultation responses. It told the named school that whilst Y is on its roll, it is responsible for providing education. It told the school that if Y is unable to attend school for medical reasons, then Y should attend alternative provision.
40. Miss X provided medical evidence which stated Y could not attend school because of medical reasons. Alternative provision was made available. Y did not attend the provision due to transport difficulties.
41. In April 2025, the Council issued a finalised EHC Plan. It named the current school until the end of April. It named a mainstream school with a specialist SEND provision from May.
42. Miss X contacted the Council multiple times requesting information and support to arrange Y starting at the new named school. The Council did not return her calls or emails. Miss X contacted the new school directly and was told it did not have knowledge of Y.
43. In May, the alternative provision provider decided not to offer Y more provision because it considered transition to its service for a short time only and back to another provision would be disruptive for Y. Y did not have access to education.
44. In June, the second named school was made available to Y. Y began attending school with a part time timetable.

Analysis

Statutory timescales (part a of the complaint)

45. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council made its original decision not to amend the Plan within four weeks of the annual review meeting and so met the statutory timescale.
46. The Council should have issued the draft EHC Plan with proposed amendments within four weeks of the second annual review meeting. The annual review meeting was in November, and it issued the draft EHC Plan in December. I find no fault with the Council.
47. The Council should have issued the final EHC Plan by February 2024 to meet the deadline in line with case law. It issued the final EHC Plan in April 2024, which is a delay of two months, which is fault. The Council upheld Miss X’s complaint and apologised to her for not completing the annual review within statutory timescales. I consider the delay caused Miss X avoidable and unnecessary uncertainty, which is injustice. I consider the apology provided by the Council did not meet our expectations because it did not show consideration to the injustice caused.
48. The two-month delay also frustrated Miss X’s right to appeal. I consider this did not cause Miss X additional injustice because she did not use her right to appeal once she received it.
49. I consider the delay issuing the Plan also did not cause a loss of educational provision to Y. This is because the new placement was consulted and named in the April Plan to start from May. Given this information and the information Miss X received when she contacted the school directly, I consider that on balance, it is unlikely a place would have been available to Y before May.

Suitable education (part b of the complaint)

50. The Council supported the school’s plan to source a short-term intervention placement for Y in October 2024; however, the placement did not have capacity at the time and so could not offer Y a place. The intervention placement offers students a full-time timetable. As a result of the placement not having capacity, Y continued to have access to a part time timetable. I consider the lack of capacity to be service failure, which is fault. However, on balance, I consider this caused Y limited injustice because Y’s circumstances and engagement indicate it was unlikely Y would have engaged with a full-time timetable at that time. I consider the service failure caused Miss X some unnecessary uncertainty and frustration.
51. There was a delay of two months in the alternative provision provider considering the Council’s referral. Once the referral was processed, Y engaged with the introductory home visits however did not attend the alternative provision sessions outside of their home. I consider the delay in making the alternative provision available did not cause a loss of provision to Y, as on balance, it was unlikely they would have attended the same alternative provision at an earlier date.
52. The finalised EHC Plan issued in April stated Y would be provided education in another placement in May. The placement was made available in June. The Council attempted to make alternative provision for Y during this time, however the alternative provision provider decided not to make provision available. The provider’s decision was out of the Council’s control. For this reason, I consider this fault to be service failure. I consider this caused Miss X unnecessary uncertainty about the education provision Y could have accessed.

Communication (part d of the complaint)

53. The Council accepts there was a lack of direct communication with Miss X and apologised to her for this in its complaint’s response. I consider the Council’s poor communication was fault and caused Miss X significant avoidable and unnecessary uncertainty regarding Y’s education. I consider the Council’s apology did not meet our expectations because it did not show consideration to the injustice caused. I consider an apology is not sufficient to remedy the injustice caused.
54. To its credit, the Council has since taken service improvement action to improve its communication with parents and carers to ensure it sends relevant updates directly and responds to emails. For this reason, I consider a recommendation for further service improvement action is not appropriate.

Back to top

Action

55. Within four weeks of my final decision statement, the Council has agreed to:
1. make a written apology to Miss X and Y for the unnecessary avoidable uncertainty caused by its two-month delay in issuing its final EHC Plan, its delay arranging alternative provision and its poor communication.
2. make a symbolic financial payment of £400 to remedy the avoidable and unnecessary uncertainty caused by the service failure regarding alternative provision made available to Y and its poor communication. I consider this amount to be appropriate and proportionate to the injustice caused.
56. 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 in my findings.
57. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

58. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Back to top

Investigator's decision on behalf of the Ombudsman