Summary: The Council failed to ensure Mrs X’s child, Y, received the specialist provision in their Education, Health and Care (EHC) Plan after they stopped attending school. It also failed to properly consider whether it owed Y a section 19 duty. The Council was at fault for the delay in carrying out an annual review of Y’s EHC Plan and for missing the phase transfer deadline. The Council has apologised and paid Miss X £3880 to remedy the injustice caused. We are satisfied with the Council’s actions.

The complaint

1. Miss X complained about the Council’s handling of her child Y’s EHC Plan. Miss X complained the Council failed to:
• Ensure Y received a suitable education and the specialist provision in their Education, Health and Care (EHC) Plan;
• Carry out an annual review of Y’s EHC Plan within statutory timescales; and
• Meet the phase transfer deadline.
2. Miss X said Y has missed a suitable education. The fault has also caused distress, frustration and uncertainty.

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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. 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).

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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). Miss X complained the Council failed to ensure Y received a suitable education and the specialist provision in their EHC Plan since they moved into an area covered by this Council in January 2024.
8. However, Miss X did not complaint to us until August 2025. There is no evidence Mrs X could not have complained to us earlier about events before August 2024 and no good reasons to exercise discretion to go back further than 12 months. Therefore, I have investigated from August 2024.

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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.

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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. 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. 
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)  

Post-16 Phase transfer

13. 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.  

Section 19

14. 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.
15. 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.
16. 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.
17. 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.

Annual reviews

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.
21. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Transfer of EHC Plan between new councils

22. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  

Background

23. Miss X and her child Y moved into the Council’s area in January 2024. Y had an EHC Plan in place, and they were on roll at a specialist school. The Council received Y’s EHC Plan from the old Council in early January.
24. At the end of January 2024, Miss X contacted the Council to explain the following:
• Y had access to a personalised programme at the school and they were expected to attend school for 90 minutes a day;
• Y was refusing to go to school and had not been in education for over a year; and
• Miss X would like an urgent meeting to discuss Y’s EHC Plan as she would like for them to go to a different school.
25. The Council should have carried out the annual review of Y’s EHC Plan no later than early April 2024, three months after the date of transfer. The Council did not do this and Y remained on roll at the specialist school until the end of key stage four which was July 2025.

What happened

26. In May 2025, Miss X made a formal complaint with the Council which said the Council had:
• Delayed carrying out the annual review and the post-16 phase transfer; and
• Failed to provide a suitable education for Y.
27. Miss X did not receive a timely response to her complaint and so brought the matter to us in August 2025.
28. In November 2025, the Council issued its first and final complaint response. The Council apologised for the delay in providing a complaint response. It should have issued this within 20 working days of Miss X’s complaint.
29. In response to the delays with the annual review it said the following:
• Y’s annual review should have taken place in early April 2024, three months after the date of transfer. The Council accepted it did not complete the annual review process in 2024;
• The Council held an annual review meeting in early December 2024 and agreed to amend the EHC Plan in mid-January 2025. It issued a draft Plan at the end of March 2025 but no final EHC Plan; and
• The Council held another annual review meeting in early June 2025 and the Council again agreed to amend the Plan at the end of June 2025. It issued the final amended EHC Plan in October 2025 after Y had already transitioned to college.
30. In response to its failure to provide Y with a suitable education it said the following:
• From December 2024, the school increased its offer from 90 minutes of education a day to two hours. However, Y found it difficult to engage with this and often refused to attend;
• The Council maintained a full-time specialist placement for Y between January 2024 and July 2025. There was no evidence to suggest that a school environment was not appropriate and the Council has therefore fulfilled their duty under section 19;
• The Council had a duty to ensure the provision outlined in the EHC Plan was in place. As Y was not attending school, it should have explored opportunities with the school and Miss X to consider increasing alternative education arrangements for Y as early as possible; and
• The Council could not find evidence it attempted to contact the school to enquire about Y’s personalised programme or their attendance. It accepted it should have been more proactive in their discussions with the school to confirm the current situation.
31. In order to put things right, the Council implemented the following actions:
• It paid Miss X £3880 for loss of provision and the distress, frustration and uncertainty caused;
• It apologised for the faults identified;
• The whole service received training in October 2025 which included regular monitoring of cases for children who did not have access to a full-time education;
• It has updated the staff training programme to include the process for children moving into the local area; and
• It recommended that the SEND assessment service reviews the procedures for children moving into the area to ensure the process is compliant with the requirements of the code of practice.
32. The Council has confirmed Miss X has received the £3880 payment. I have attempted to contact Miss X about her complaint but there has been no response.

My findings

Annual review and phase transfer

33. By August 2024, which is the start point of my investigation, the Council should have already carried out an annual review. The Council carried out the annual review meeting for Y’s EHC Plan in early December 2024. It should have sent Miss X its decision to amend the Plan within four weeks, so by the end of December 2024 at the latest. It did not do this until mid-January 2025, which was a delay of two weeks and fault.
34. Following this, it should have issued Y’s final EHC Plan within statutory timescales. It had eight weeks to do this so it should have issued the Plan by the end of February 2025. It should have also issued it before 31 March 2025, which was the phase transfer deadline.
35. The Council was at fault as it did not issue the amended final EHC Plan until mid-October 2025. This was a delay of almost eight months outside statutory timescales following it holding the annual review meeting in December and almost seven months after the phase transfer deadline. This caused Miss X distress, frustration and uncertainty.
36. We found fault with the Council on a similar case. Following this, the Council agreed to take action through training, guidance or quality monitoring to ensure relevant officers know they must complete a phase transfer review when a child with an EHC Plan is in the key transfer year within the statutory timescales. We will monitor compliance of this and therefore, a further service improvement is not required.

Section 19 duty

37. Miss X notified the Council in January 2024 Y was receiving little to no education. By August 2024, the start point of the investigation, this situation had not changed. We would have expected the Council to consider all the reasons for Y’s absence from school, and make a written evidence-based decision about whether it will arrange alternative educational provision. If it decided Y needed alternative educational provision, we would then expect it to implement this promptly.
38. The Council said it has fulfilled its section 19 duty. However, it has also said it could not find evidence it had contacted the school to enquire about Y’s personalised programme or their attendance. It also accepted it failed to explore opportunities with the school and Miss X to consider increasing alternative education arrangements for Y. These are enquiries we would expect the Council to make to determine whether it owed Y a section 19 duty. As there is no evidence it has done this, on a balance of probabilities, the Council was at fault for its failure to properly consider whether it owed Y a section 19 duty.
39. I cannot say, but for the fault, the Council would have decided to implement alternative educational provision. However, this has caused Miss X distress, frustration and uncertainty about whether it owed Y a duty.
40. We found fault with the Council on a similar case. Following this, the Council has agreed to issue guidance to staff to ensure they understand the Council’s section 19 duty and alternative educational provision and therefore, a further service improvement is not required.

Specialist provision in the EHC Plan

41. Y also has an EHC Plan in place and the Council has an absolute, non-delegable duty to secure the special educational provision set out in the Plan. As Y was unable to attend the school named in the EHC Plan, the Council should have considered how to make the provision specified in section F away from the school. The Council accepted it did not do this which was fault. As a result, Y did not receive the provision as set out in their EHC Plan for the full 2024-2025 school year.

Complaint handling

42. Miss X made a formal complaint in early May 2025. The Council should have issued a complaint response within 20 working days and by early June 2025 at the latest. The Council did not issue a complaint response until November 2025 which was a delay of six months and fault. This caused Miss X distress, frustration and uncertainty.

Recommendations

43. We typically recommend between £900 and £2400 per term in recognition of lost provision, depending on the severity of loss. For the period I have investigated, I am satisfied the £3880 offered by the Council is a sufficient remedy for the injustice caused by the Council’s fault. This recognises the lost EHC Plan provision, its failure to properly consider its section 19 duty and the delay with the complaint handling and issuing the final amended EHC Plan following the annual review.

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Decision

44. I find fault causing injustice. I am satisfied the Council has carried out suitable actions to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman