Summary: There was fault by the Council. The Council delayed an annual review meeting and did not produce a final Education, Health and Care Plan until after the next annual review. The Council did not keep under review the amount of hours tuition given to a child who was unable to attend the school named in the Education, Health and Care Plan, as the school could not meet his needs. A symbolic payment and apology remedies the injustice of loss of educational provision to the child and the distress to the family.

The complaint

1. The complainant, who I shall call Mrs X, complains the Council delayed carrying out Annual Reviews and sending out final Education, Health and Care (EHC) Plans after the review meetings. Mrs X says the Council delayed increasing the hours of tuition when her child was able to access more. Mrs X says that her child, Y, now a young adult, missed out on educational provision during their GCSE years and that she was not able to work, as she had to remain home. Mrs X says that without a final EHC Plan, she was unable to appeal to the SEND tribunal which increased her distress and uncertainty.

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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. 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

5. 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) I have exercised discretion to investigate events from January 2024, when the annual review was due as there is enough information available to make a sound decision. There are compelling personal reasons to exercise discretion and Mrs X continued to pursue matters throughout. 
6. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
8. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments. As Mrs X had the right of appeal to the SEND tribunal on 13 June 2026 and appealed to the tribunal, we cannot investigate events after the EHC Plan that Mrs X appealed against was issued.
9. Mrs X has said that the final EHC Plan after the 2026 annual review has been delayed. Mrs X is able to make a new complaint through the Council’s complaints process on this point.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs X 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

12. A child or young person with special educational needs may have an 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. 
13. 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)  
14. 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. 

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. 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) 
16. 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.
17. 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.
18. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

Key facts

19. Y had an EHC Plan that named a mainstream school. The annual review was due by 19 January 2024, when Y was in year 10. Y was not attending school, they were receiving tuition at home.
20. On 1 February 2024 the Council received a Specialist Teacher Report which said the EHC Plan targets were outdated and Y required a specialist setting. At this point, Y was receiving 4 hours a week tuition at home.
21. There is an email on the Council’s files from the Council caseworker to the school. The Council officer asked the school why Y’s tuition hours had been cut as they would normally expect a young person that can engage with tuition to have 10 hours per week.
22. The annual review was held on 17 April 2024 at the school. Mrs X contacted the Council in June 2024 and September 2024, chasing the outcome of the review. The Council said it had not received the paperwork from the school. There is a note on the case file from the Council caseworker that the Council had agreed to increase the funding to the school for 10 hours of tuition per week and send consultations to specialist schools. The note said that Y always attends tuition, which has been 4-6 hours per week.
23. The Council wrote to Mrs X on 11 September 2024 saying that tuition would be increased to 10 hours per week as soon as possible, as an interim measure, while the Council looked for a specialist setting. Mrs X was asked if she had a preference for colleges for the Council to consult.
24. Mrs X emailed on 8 October 2024 to say that Y’s tuition hours had not increased. The school sent some paperwork relating to funding to the Council in October 2024. Y then received 6 hours per week tuition.
25. A second annual review was held on 11 December 2024. Y was now in year 11. This was a phase transfer review for Y to move to post-16 provision.
26. The Council issued a letter on 23 January 2025 confirming amendments were required to the EHC Plan for both reviews.
27. On 19 Feb 2025 the Council issued a draft EHC Plan. A Notice of Proposal to Amend the EHC Plan was sent to Mrs X on 26 February 2025
28. The Council consulted four post 16 provisions on 18 March 2025. All providers said they could not meet need, including the college Y wanted to attend. Y received 8 hours tuition per week in April and May 2025. Then he received 6 hours tuition per week from June 2025 onwards.
29. The Council sent a final EHC Plan to Mrs X on 13 June 2025. This named a mainstream college who had said they could not meet Y’s needs. The Council agreed that tuition could continue until July 2025.
30. Mrs X appealed to the SEND tribunal on 1 September 2025. Y started at the college named on the EHC Plan and Mrs X withdrew the appeal on 14 October 2025.

Annual Reviews

31. There has been fault by the Council. The 2024 annual review meeting was three months late and no final plan was sent to Mrs X before the next review meeting took place nine months later.
32. After the 2025 annual review, the Council took six months to send the final plan to Mrs X. This was a delay of three months. This was also the phase transfer review and so the final Plan should have been issued by 31 March 2025.
33. Educational Provision
34. There is clear evidence from the Council’s files that Y was engaging with tuition. And, that the Council would expect at least 10 hours of tuition to be provided. The Council was also aware from February 2024 that Y was only receiving 4 hours a week tuition and that Mrs X wanted more hours to be provided or a specialist school place.
35. Years 10 and 11 are important school years, leading to GCSE’s. Y received:
• 4 hours a week tuition from February 2024 until October 2024.
• 6 hours a week tuition from October 2024 until April 2025.
• 8 hours a week tuition in April and May 2025.
• 6 hours a week tuition from June 2025 onwards.
36. The Council was responsible for putting in place the provision in Section F of Y’s EHC Plan. 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.
37. The information I have shows there was fault by the Council. It was aware that Y was out of school and was capable of more than 4 hours tuition in February 2024. This was not increased until October 2024, and then to 6 hours when officers had already indicated that they would expect 10 hours per week.

Injustice

38. The failure to complete the annual reviews and finalise the EHC Plans meant that Mrs X had no means to appeal the provision and setting in the EHC Plan when Y was in year 10 and 11 at school. This along with the failure to review the tuition when the Council became aware that Y was not receiving a full time education and was capable of more hours has meant that it is likely that Y has lost out significantly on educational provision from February 2024 until 13 June 2025.
39. Our guidance on remedies says ‘where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the harm caused by that loss. The figure should  be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC Plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.
40. When assessing the level of symbolic payment for Y I have considered there was a delayed right to appeal to the tribunal, that Y was in the period preparing for public exams, that Y had been out of school for a considerable period of time during their secondary education and that 4 hours a week tuition was only a small amount of the education compared to a full time specialist school place.
41. For the loss of educational provision, the Council should make a symbolic payment of £2000 per term for February to October 2024, which is approximately 2 terms, totalling £4000. And it should pay £1800 per term for October 2024 until June 2025 which is approximately 2.5 terms (totalling £4,500) to remedy Y’s injustice.
42. The Council should also apologise to Mrs X and Y and make a payment of £500 towards the distress and inconvenience caused to Mrs X, during a crucial period of her child’s schooling when she was unable to appeal to the SEND tribunal due to the annual review delays.
43. I have not recommended Service Improvements as the Council currently has a SEND priority action plan with actions across all areas until September 2026.

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Action

44. Within one month of the date of the decision, the Council should:
• Apologise to Mrs X. 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.
• Pay Mrs X £9000.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I have completed my investigation and I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman