Summary: There was fault by the Council. The Council failed to issue a new final Education, Health and Care Plan after annual reviews in 2024 and 2025. A child, Y, received none of the educational provision in their Education, Health and Care plan for five terms. The family were not able to appeal to the SEND tribunal as they did not have an updated plan to appeal. A symbolic payment and review of procedures remedies the injustice to Y.

The complaint

1. The complainant, Miss X, complains that her child, Y, did not receive an education or the provision in section F of an Education, Health and Care (EHC) Plan after they had to leave an alternative educational provision. Y received no educational provision for almost 2 years, which caused an injustice of loss of education. Part of this was during a period when Y was a looked after child.

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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 recommend 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)
6. Miss X complained to the Ombudsman in September 2025. I have exercised discretion to investigate matters from February 2024. This is because the information is available to make a sound decision and the families personal circumstances explain why it was difficult for Miss X to make a complaint earlier.
7. I have investigated matters up till February 2026, as there was an ongoing injustice from loss of provision.

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How I considered this complaint

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

10. Y had an EHC Plan that named a mainstream school, which they had not attended since 2022. From October 2023 Y had been attending an alternative educational provision for three days a week, organised through the school.
11. On 9 January 2024 there was an annual review of the EHC Plan. Y was in Year 9. The review recommended the EHC Plan was amended. The review noted that Y had been offered additional provision but had declined. Three days a week was the maximum available at the alternative provision they were attending. A draft EHC Plan was issued on 15 August 2024.
12. Y was advised by the Police to stop attending the alternative provision at the beginning of February 2024 as they could not be kept safe in the area.
13. Y was placed in Foster Care voluntarily in August 2024, under section 20 of the Children’s Act 1989. The first review was held at the beginning of August 2024. This recorded there were two education options, a residential school or a foster placement where Y could live and attend a school nearby. The review said at that time there had not been a meeting about Y’s education, a Personal Education Plan (PEP). The initial meeting for the PEP was proposed for 3 September 2024.
14. The virtual school team said that in October 2024 they received two separate notifications from social care that it was planned for Y to move to a residential school but this did not go ahead. The notes says that ‘the mainstream school still have Y on role and can offer provision’.
15. The Council has said that in September 2024 the virtual school lead officer met with Miss X and Y, who said that Y was unhappy to engage with alternative provision organised by the mainstream school. The virtual school officer asked the SEN team for an update.
16. Y moved to live with his relative, who was being assessed as a foster carer, on 21 October 2024. The virtual school team were notified.
17. A second looked after child review was held on 5 November 2024. This said that sessions with a school outreach worker were to start once a week from 6 November to do an activity of Y’s choice. The review notes that Miss X was concerned that education had not even sent a workbook to Y. The review notes say that everyone agreed that it was very important that Y had the right school seeing as they were not in any formal education since February 2024. The review said that consultations had been sent to other schools and responses were awaited and that other alternative provision options were going to be checked.
18. The review said that ‘the support with your education was being checked in separate meetings called PEP and a new EHC Plan annual review was anticipated.
19. The virtual school notes say that on 15 November 2024 ‘a request was made for a laptop and log in details for an online maths and English programme’.
20. The virtual school officer met with Y and Y’s relative on 3 December 2024 and an annual review of the EHC Plan was planned for January 2025.
21. Y told the virtual school lead on 23 January 2024 they wanted the mainstream school removed from the EHC Plan
22. There was a review of the EHC Plan on 29 January 2025. This said that Y had been offered alternative provision but it had not started as Y did not want to engage with a provider they associated with the mainstream school on the EHC Plan. Y had no provision from September 2024 onwards. The review noted that Miss X, Y’s relative and Y all wanted the mainstream school to be removed from Y’s EHC Plan as it was a barrier to them accessing any further provision. The school said they could not meet Y’s needs.
23. Y was given the log in details to online tuition on 29 January 2025. Y told the virtual school officer the tasks were too difficult. The file notes say ‘alternatives were shared on 7 February 2025’ but does not explain what the alternatives were.
24. Y was removed from the mainstream school roll on 4 March 2025.
25. Y moved back home to live with Miss X on 19 April 2025.
26. The Council said that it agreed to arrange an equine placement on 7 June 2025 but this was not put in place before the end of the summer term (July 2025).
27. Y started at a placement of 15 hours a week at an alternative provision in February 2026.
28. Miss X complained to the Council that Y had had no education since February 2024. The Council’s response to Miss X’s official complaint on 27 August 2025 said:
• Y was on roll at the mainstream school until 4 March 2025 and the school had a duty to put educational provision in place, whether on site or through alternative provision. Throughout this time the SEND team consulted other schools but no placement was identified.
• Y had had not educational provision from 4 March 2025 and the duty for this lies with the Council’s SEND team. The Council apologised that the equine educational provision offered in June 2024 did not take place.
• Y’s SEND keyworker had been on sickness absence since 24 June 2024 and the Council apologised if Miss X had not received an out of office response. The Council said that this challenge to communication was not acceptable and the team was in the process of arranging a telephone booking system for parents to make appointments.

Annual reviews

29. 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. 
30. 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) 
31. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must tell the child’s parents or the young person of their right to appeal the decision to the tribunal.
32. 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.
33. The last final EHC Plan for Y issued was on 21 November 2022. An annual review was carried out on 9 January 2024 and a draft EHC Plan was issued on 15 August 2024 but no final EHC Plan was issued.
34. An annual review was carried out on 29 January 2025 but no draft or final EHC Plan was issued. In response to my enquiries, the Council said ‘the draft remained as, at the time, we were still actively consulting for day and residential placement. Children’s Social Care were heavily involved at the time, and it was unclear on the plans ahead. We did not have a placement to finalise and there were also ongoing amendments so we could update with strength-based language’.
35. I find fault by the Council as it failed to issue a final EHC Plan within 12 weeks of the 2024 and 2025 annual reviews. This meant that Y’s EHC Plan was not updated for almost 4 years and Miss X had no right of appeal to the SEND tribunal to challenge the provision and setting in the EHC Plan. As the Council has said, Social Care were involved. But this is a reason for the EHC Plan to be kept updated as a matter of urgency, especially as it is clear that Y was keen to get practical qualifications.

Educational Provision from February 2024 until 3 March 2025

36. 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)  
37. 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 the provision is not in place at any time. 

38. The Council has said that ‘Y was on roll at a school for this period and it was felt the school could offer alternative provision during this period’.
39. Between February and July 2024, after Y was advised not to return to the alternative provision, I can see no evidence that tuition or alternative provision was offered to Y.
40. In September 2024, after Y went into foster care, Y made it very clear to the virtual school lead that he would not engage with alternative provision provided by the school. On 1 October 2024 a move to residential school was planned but did not go ahead. The Council said ‘Y and family were advised that an education offer remained from the school’.
41. On 15 November 2024, the virtual school lead requested a laptop and online English and maths for Y. Log in details were shared with Y on 29 January 2025. Y said on 5 February 2025 it was too difficult.

Educational Provision from 4 March 2025 until March 2026

42. The Council has said that no educational provision was put in place for this period. This was fault.

Injustice

43. The information I have shows the Council failed to finalise Y’s EHC Plan for 4 years. This has meant that Miss X had no right of appeal to the SEND tribunal to challenge the educational setting and provision in the EHC Plan.
44. The Council then failed to adequately monitor the alternative provision provided by the school. There is no evidence of any alternative provision offered from February 2024 until July 2024, for one and a half terms. There was some provision offered in September 2024, but Y did not engage. From November 2024 a laptop and online tuition was proposed, but this was not put in place until 2 months later and was too difficult for Y. So, Y received virtually no education from November 2024 until March 2026, a further three and a half terms.
45. As Y was a looked after child and is almost an adult, I consider the injustice of the loss of educational provision is to them not Miss X. 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. Given that Y was at GCSE course age and a looked after child I consider a payment at the highest level for 5 terms is a suitable remedy. This would be £12,000 and would include the injustice from the loss of appeal rights to the SEND tribunal.

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Action

46. Within two months of the date of the decision on this complaint, the Council should:
• Apologise to Miss X and Y. 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 Y £12,000.
• Prepare and implement an action plan to ensure that final EHC Plans are issued within legal timescales after annual reviews.
• Prepare and implement an action plan to ensure monitoring occurs of children in alternative provision with an EHC Plan, whether provided directly by the Council or via a school placement. This plan should ensure that children who have a EHC Plan receive the provision in Section F.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. 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