Summary: Mrs X complained about how the Council delayed the annual review process of her child’s (Y) Education, Health and Care Plan. Mrs X also complained about the Council’s failure to provide Y with full-time education and its poor complaint handling. There was fault by the Council which caused injustice to Y and Mrs X. The Council will take action to remedy the injustice caused to Y and Mrs X.

The complaint

1. Mrs X complained about the:
1. Council’s delays with completing the February 2025 annual review process and issuing Y’s final Education, Health and Care (EHC) Plan
2. school placement named in Y’s final EHC Plan
3. Council’s failure to provide Y with suitable full-time education
4. Council’s complaint handling and its lack of communication with her.
2. Mrs X said as a result, Y missed out on education and support. Mrs X said the matter also caused her distress, frustration and it affected their family life.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. 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.
6. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
7. 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)
8. 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

9. I have investigated matters from February 2025 to September 2025. This covers the period from when an annual review of Y’s Education, Health and Care (EHC) Plan was completed to when the Council issued Y’s final EHC Plan.
10. I have not investigated complaint point ‘b’. This is because matters relating to the contents of an EHC Plan are for the Tribunal and these are out of the Ombudsman’s jurisdiction. And Mrs X has submitted her appeal to the Tribunal on this matter.

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How I considered this complaint

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

What I found

Education, Health and Care Plans

13. 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.
14. The council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person (section 42 of the Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
15. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The review process includes a review meeting, and the subsequent decision, which have appeal rights.
16. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan. Where the decision is to amend the EHC Plan, the council must then issue any final amended Plan within eight weeks of the ‘amendment notice’. Therefore, a final EHC Plan must be issued within 12 weeks of the review meeting.
17. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final Plan is issued.
18. 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). 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 and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.

Alternative Provision

19. Section 19 of the Education Act 1996 says that councils 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.
20. 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.
21. 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.
22. If a child has an 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.
23. Councils should also think about the steps needed to reintegrate the child back into their usual school setting, through ongoing conversations with relevant professionals and the parents.

Part-time timetables

24. 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.

Background

25. Mrs X’s child, Y, has some health conditions and special educational needs (SEN).
26. Y attends School 1 and has an Education, Health and Care (EHC) Plan.
27. Some of the provision set out in Y’s final EHC Plan which was issued in August 2024 included:
1. structured daily opportunities to encourage short interactions with peers and over time to develop turn-taking skills (several times per day).
2. a range of sensory-based activities both indoors and outdoors, with a sensory space and learning breaks once Y is in school (throughout each day).
3. use of an ‘Intensive Interaction’ approach. Duplicate sets of resources needed to maximise the development of Y’s shared attention skills (10-minute sessions, three times per day).
4. 90 minutes of speech and language therapy per term.
28. In September 2024, Mrs X said Y was placed on a part-time timetable because School 1 was unable to manage his SEN needs, dysregulation and behaviours.

Key events

29. Mrs X said she was aware of and agreed to the part-time timetable arrangement because of safety concerns for Y and others. Mrs X said Y attended School 1 every day on reduced hours which varied daily and weekly based on how Y felt and how many hours he could cope with.
30. In 2025, Y continued to attend School 1 on the part-time timetable until June 2025 (the end of the academic session).
31. On 25 February, an annual review of Y’s EHC Plan was completed.
32. Due to Y’s dysregulation, School 1 suspended him temporarily for a few days in February.
33. In April, Mrs X raised concerns and complained to the Council on two occasions about the Council’s delays and lack of communication regarding the annual review process of Y’s EHC Plan. She also said Y was facing significant challenges due to School 1’s lack of sufficient funding and resources from the Council to be able to support Y’s SEN. Mrs X said the lack of support and Y’s ongoing part-time timetable denied him access to full-time education as it was unsafe for him to attend School 1 for an entire day without the required provisions. The Council did not respond to Mrs X’s concerns.
34. In June, Mrs X made a complaint to the Council about its failure to respond to the concerns/complaints she raised in April and its ongoing delays with issuing its annual review decision letter and Y’s final EHC Plan.
35. On 9 June, the Council issued Mrs X with its decision letter to amend Y’s EHC Plan following the February annual review meeting.
36. In June, School 1 suspended Y again for a few days due to his dysregulation. Mrs X informed the Council that it failed to adequately support School 1 and as a result, Y was spending about half his school time at home. Mrs X said the matter was significantly affecting Y’s educational progress and his emotional well-being.
37. In June and September, the Council issued its responses to Mrs X’s complaint. The Council:

• accepted and apologised to Mrs X for its delays with completing the February annual review process, delays with its complaint handling and poor communication with her. The Council also offered Mrs X a £300 payment for its complaint handling delays.
• said it allocated an appropriate level of funding to School 1 to secure the provision set out in Section F of Y’s EHC Plan and to meet his needs.
• said any part-time timetable for a child with an EHC Plan should be agreed between schools and councils but it confirmed that in this case Y’s part-time timetable arrangement had not been approved by the Council.
• said it reviewed and discussed Y’s attendance record from February to June with School 1. The Council said it noted there were occasions where some absences were authorised during this period which formed part of a reintegration plan for Y around periods of dysregulation and the short-term suspensions in February and June.
• said it recognised the impact any absence might have on a child’s education, but the Council maintained Y’s absences were authorized by School 1, it was part of an agreed and balanced approach to support Y’s gradual/manageable return to full-time attendance. The Council said Mrs X was also aware of these arrangements.

38. Mrs X said Y’s repeated exclusions showed that the current provision was neither suitable nor sufficient to meet Y’s SEN. Mrs X maintained the Council had failed to provide School 1 with sufficient funding to provide additional resource for 1:1 support, occupational therapy, or sensory expertise for Y.
39. On 10 September, the Council issued Y’s final EHC Plan.
40. Mrs X was dissatisfied with the contents of the final Plan which included the Section I (named setting), and she subsequently submitted an appeal to the Tribunal.

Analysis

Annual Review Process

41. The Council issued its decision letter to amend Y’s EHC Plan on 9 June 2025 after it completed an annual review of Y’s EHC Plan on 25 February 2025. This was a delay of approximately 11 weeks.
42. The Council should have issued Y’s final EHC Plan on 20 May 2025 (12 weeks after the review meeting). It did not issue Y’s final Plan until 10 September 2025. This was a delay of approximately 16 weeks.
43. These delays were fault. This caused Mrs X distress, and it delayed her right of appeal to the Tribunal.

Contents of Y’s final EHC Plan

44. As stated in paragraph 10, this is a matter for the Tribunal and Mrs X exercised her appeal right after Y’s final EHC Plan was issued.

Part-time Timetable and Provision of Section F of Y’s EHC Plan

45. The Council did not agree or approve Y’s part-time timetable arrangements with School 1. There was no fault by the Council from February 2025 to when it became aware of Mrs X’s concerns about Y’s part-time timetable.
46. After Mrs X raised her concerns with the Council about the arrangements, it discussed Y’s attendance records with School 1. The Council was satisfied that the arrangements was set up to form part of a reintegration plan for Y around periods of his dysregulation and was an agreed approach to support his gradual return to full-time attendance which Mrs X also agreed to.
47. However, there was no evidence to show how the Council kept the arrangements under review and satisfied itself the ongoing arrangements remained in the best interest of Y between May 2025 and June 2025. This was fault and not in line with its legal duty under Section 19 of the Education Act 1996. It caused distress and uncertainty to Mrs X.
48. In addition to its Section 19 duty, the Council also had an ongoing duty to arrange the provision and support set out in Section F of Y’s EHC Plan.
49. I note the Council said it allocated an appropriate level of funding to School 1 to secure the provision set out in Section F of Y’s Plan. But it is the Council’s responsibility to discharge its Section 42 duty to arrange provision which is owed personally to Y. As case law has confirmed this is non-delegable. There was no evidence to show how the Council satisfied itself that Y received the SEN provision as set out in Section F of his EHC Plan via the part-time timetable between February 2025 and June 2025. This was fault
50. I find the Council failed to discharge its legal duties under both Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014. And as a result, Y lost out on suitable education and SEN support.
51. However, Y continued to attend School 1, received education and some provision set out in his EHC Plan which I find mitigated the injustice caused to Y.
52. We have recently made service improvement recommendations in other decisions that the Council should remind relevant staff of the Council’s legal duties under Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014. We are continuing to monitor the actions the Council takes to ensure compliance with those and similar recommendations. For this reason, I have not made service improvement recommendation about the same identified issues in this case. These identified issues are already being addressed through other cases we have investigated.

Poor Complaint Handling

53. The Council already accepted its delays with handling Mrs X’s complaint and how it poorly communicated with her. This was fault and caused distress and frustration to Mrs X. The Council had apologised to Mrs X, and it offered her a £300 payment to acknowledge its failings. This is welcomed and I consider the remedies are proportionate in line with our guidance on remedies. However, as the £300 payment had not yet been made to Mrs X, this will be addressed in the action section below.

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Action

54. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following actions within one month of the final decision:

• apologise in writing to Mrs X to acknowledge the injustice caused to her by the Council’s identified faults as set out above. The apology should be in accordance with our guidance, Making an effective apology
• make Mrs X a payment of £500 to acknowledge the loss of suitable education, provision and support to Y caused by the Council’s failure to discharge its legal duties under Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014 between February 2025 and June 2025. This payment also includes the distress, uncertainty and delayed appeal rights caused to Mrs X.
• make Mrs X the £300 payment it had offered her in its final complaint response in recognition of how the Council failed to properly handle her complaints.

55. The Council should provide us with evidence it has complied with the above actions.

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Decision

56. I find fault by the Council causing injustice to Y and Mrs X. The Council has agreed actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman