Summary: Mrs X complains the Council delayed issuing an Education Heath and Care Plan for her child Y following an annual review and delayed implementing Y’s Education Other than at School Package causing distress and lost educational opportunity. We found fault by the Council as it delayed carrying out the annual review and caused uncertainty over the amount of provision Y could have been receiving while unable to attend the alternative provision placement. We have recommended a suitable remedy for the injustice caused so have completed our investigation.

The complaint

1. Mrs X complains the Council did not include essential medical evidence when drafting her child Y’s Education Heath and Care Plan (EHC Plan) and it delayed issuing the EHC Plan. Mrs X also complains the Council delayed implementing Y’s Education Other than at School (EOTAS) package causing distress and lost educational opportunity for Y.

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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. 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)
4. 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.
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. I have investigated Mrs X’s complaints from the date of the annual review in November 2024 to July 2025 when the Council issued the final amended EHC Plan. The complaints I have considered include Mrs X’s concerns about a delay in completing the annual review in 2024, issuing a final amended EHC Plan and implementing Y’s EOTAS package of provision.
8. I have not investigated Mrs X’s concerns about the inclusion of medical information in H1 of the EHC Plan issued in July 2025 or its content and provision. This is because Mrs X had the right of appeal to the SEND Tribunal if she disagreed with the content and provision listed in the EHC Plan. It was reasonable to expect Mrs X to exercise her right of appeal as the SEND Tribunal has the authority to direct changes to the EHC Plan.

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How I considered this complaint

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

Legislation and statutory guidance

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 EHC Plan is set out in sections which include:
• Section H1: The social care provision which must be made for the child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.

Maintaining the EHC plan

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.

Reviewing EHC plans

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.

What happened in this case

18. The following is a summary of key events. It does not include all the information I considered as part of my investigation.
19. Y has ASD, ADHD, anxiety and some sensory processing conditions which make difficult for them to attend a school placement. Y has an EHC Plan and in 2024 was attending an alternative provision placement as part of an EOTAS package. The package included 15 hours a week at the alternative provision and parent recognised home learning (hours not specified).
20. The Council held an annual review of Y’s EHC Plan on 22 November 2024. The review noted an incident at Y’s placement in September 2024 triggered their anxiety and health issues, so could not attend it. Mrs X said Y was in a mental health crisis and unable to leave the house. So, she considered the EHC Plan did not meet Y’s needs and needed amending to allow Y to continue to receive education. Y’s Tutor confirmed Y could not access the provision in the EOTAS package. And Y was also uncomfortable with people (tutors) coming to the house.
21. The Council received H1 Medical evidence dated 15 November 2024 from a CAMHS psychiatrist on 18 November 2024 confirming Y’s presentation had significantly deteriorated. The Council said it would arrange for Y to receive tutor provision three hours a week from 22 November 2024 and said it could be increased in time when Y was ready. It said the parent-recognised home learning was specified to continue and noted Y was engaging in some work at an appropriate learning level at home with Mr and Mrs X.
22. On 29 January 2025 the Council issued a decision to amend the EHC Plan and sent the draft plan to Mrs X. Mrs X said the Council had failed to include the H1 medical evidence in the document. The Council issued a second draft EHC Plan on 14 March 2025.
23. The Council met with Mrs X in April 2025 to discuss her concerns and she complained about delay in issuing the final amended EHC Plan. In May 2025 Mrs X complained Y had not received any education since 9 September 2024 and was struggling. Mrs X considered it unacceptable her child was not receiving the education they were legally entitled to.
24. The Council issued the final amended EHC Plan on 15 July 2025. The Plan specified home tuition three times a week while Y could not leave the house. The Council responded to Mrs X’s complaint on 17 July 2025. It said it had been unable to add the H1 document to the draft EHC Plan as it was not available when reviewing the case. But it had added the form in the final amended EHC Plan.
25. The Council said it was aware Y had anxiety and been unable to access the alternative provision setting. So, agreed it was appropriate for Y to access education at home. The Council acknowledged Mrs X did not feel it would be successful if delivered by someone Y did not already know and apologised the home education was not yet in place. This was due to carrying out checks on the proposed tutor which was taking time. However, the Council expected the provision to be in place for the start of the next academic year in September 2025.
26. In September 2025 the Council told Mrs X it had commissioned two tutors to work with Y for 15 hours a week over the next 38 weeks excluding school holidays. It confirmed the tutors would liaise with Mrs X and Y. One was an existing tutor, and it was hoped Y would engage with the new tutor being brought in to work with them. The Council confirmed Y was receiving home tuition from September 2025 onwards.
27. Mrs X complained to the Council:
• About a lack of contact from the EHC Officer since March 2025 and a delay in issuing the final EHC Plan in July 2025 which did not contain form H1 form despite her complaints about this at the draft EHC Plan stage.
• It had proposed a new tutor to work with Y. Mrs X said she had not been included in the discussions and Y was not ready to be introduced with anyone new. Mrs X said Y needed to be introduced gently to learning until they became used to the tutors coming into the home.
• About the content and wording of the EHC Plan including that Y was to be supported by home tuition while they were unable to leave the home.
28. The Council responded in September 2025. The Council:
• Apologised for the delay in issuing final EHC Plan and confirmed Form H1 had been included in the EHC Plan.
• Appreciated Y’s education was a complex situation, and Y needed a lot of ongoing support. But it could only agree to specify ‘home tuition’ in the EHC Plan if it also included it was needed while Y was unable to leave the home. This is because it had not received professional reports stating Y must have home tuition. The Council acknowledged home tuition was appropriate for the time being, and there was no expectation for Y to access education in another environment at this time.
• Needed to ensure that Y had access to an appropriate amount of education. It considered 15 hours per week was suitable for Y, but it could be built up gradually, with the new tutor introduced later. Officers would discuss this further Mrs X. And given the limited number of people able to work with Y, the tuition would need to take place at convenient times for both Mrs X and the tutor. The Council said it could not be more specific in the EHC Plan, but if the tutor already known to Y could provide three sessions a week for two hours, then the Council could arrange that.
29. In response to my enquiries on the complaint the Council acknowledged that unfortunately, there was a delay in securing Y’s educational provision. This was due to Y struggling to engage with any type of provision, so it worked hard to find something that was appropriate for Y. However, this did result in a gap in education as the one tutor Y was willing to work with had to go through the Council’s commissioning systems to ensure quality compliance and safeguarding.

Assessment

30. The documents provided show there was a delay by the Council in completing the annual review and issuing the final amended EHC Plan. The annual review started on 22 November 2024, and the Council issued the final amended EHC Plan on 15 July 2025. The regulations say it should take 12 weeks to review an EHC Plan. In this case the review took 33 weeks. The delay is fault by the Council as it should have issued the final EHC Plan about 14 February 2025 being 12 weeks from the date of the annual review meeting in November 2024. The Council has not provided an explanation for the delay.
31. The fault will have caused an injustice to Mrs X though uncertainty about the outcome of the review and a delay in her being able to exercise her right of appeal if she disagreed with the EHC Plan. To remedy the injustice caused the Council should apologise to Mrs X for the delay and make her a payment of £300. This is a symbolic payment to recognise the uncertainty caused by the delay in completing the annual review and delaying her right of appeal.
32. The evidence provided shows the Council said it would arrange three hours of tutor provision in place for Y in November 2024 once it became aware Y could not attend the alternative provision placement. This was to increase when Y could cope with the tuition. The parent recognised home learning was also specified to continue throughout from September 2024 to July 2025.
33. The Council has accepted some delay in ensuring the EOTAS provision was in place for Y. And it has confirmed it has no evidence it commissioned the tutoring in November 2024. So, the only provision in place for Y was the parent recognised home learning. However, it is difficult to say how much provision Y could have coped with given their mental health at the time and the difficulties in being introduced to new people. But there is no evidence the Council kept Y’s provision under review after November 2024 and so failed to check on whether the tuition was in place and needed increasing.
34. There is therefore fault by the Council as it is required to keep an appropriate oversight on the provision it arranges or agrees to arrange. This has caused an injustice to Mrs X and Y as it failed to arrange the tuition it considered was appropriate and keep it under review. The Council should therefore apologise to Mrs X and Y for the failure to arrange the tuition while Y was unable to attend the alternative provision placement. The Council should make Mrs X a symbolic payment of £250 per term to recognise the lost provision as the Council failed to arrange the tuition. This amount is not according to our usual remedy scales for lost provision. But I consider it appropriate in this case because there is such uncertainty about how much tuition Y could cope with, but it appears it would have only been a modest amount. The Council failed to make the arrangements for tuition for Y for two and a half terms, so the total amount recommended is £250 for each full term and £125 for the half term, totalling £625.

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Agreed Action

35. To remedy the injustice caused by the faults identified above the Council will, within one month of my financial decision:
• Apologise to Mrs X and Y for the delay in carrying out the annual review from November 2024 to July 2025 when it issued the final amended EHC Plan. And for the delay in ensuring Y was receiving the tuition from November 2025 and the EOTAS package once they were unable to attend the alternative provision placement. 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 a symbolic payment of £300 for the uncertainty caused by the delay in completing the annual review from November 2024 and delaying her right of appeal.
• Pay Mrs X a symbolic payment of £625 in recognition of the lost provision by the Council’s failure to arrange the tuition in November 2024 while Y was unable to attend the alternative provision placement.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I find fault causing injustice. The action I recommend is a suitable remedy for the injustice caused in this case.

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Investigator's decision on behalf of the Ombudsman