Summary: Miss X complained about the Council’s handling of her child Y’s special educational needs between June 2024 and May 2025. We found the Council at fault because it failed to complete the annual review process within the statutory timescales, failed to consider its duty to provide alternative education under section 19 of the Education Act 1996, failed to secure the special educational provision in Y's EHC Plan as required by section 42 of the Children and Families Act 2014, and delayed responding to Miss X's complaints. These failings caused Y to miss approximately one and a half school terms of education and special educational provision and caused Miss X avoidable distress, uncertainty, frustration and time and trouble. The Council has agreed to apologise, make a payment to Miss X and take steps to improves its services.

The complaint

1. Miss X complained about the Council’s handling of her child Y’s special educational needs between June 2024 and May 2025. She says the Council:
1. failed to carry out an annual review in accordance with its statutory duties;
2. failed to comply with the relevant regulations and statutory guidance when conducting an annual review;
3. failed to arrange suitable alternative education while Y was unable to attend school; and
4. provided inaccurate information and communicated poorly throughout.
2. Miss X says these failings resulted in Y missing approximately one year of education and had a detrimental impact on her mental health.

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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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How I considered this complaint

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

EHC Plan 

9. 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. 

Maintaining the EHC Plan

10. 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)  
11. 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

12. 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) 
13. 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.
14. 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.

Appeal rights

15. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan; and
• decision not to amend an EHC Plan following a review or reassessment.

Section 19 duty

16. 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.

Establishing a section 19 duty

17. 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

What happened

18. Below is a summary of key events based on my review of all the evidence provided about this complaint.
19. Y has special educational needs and has had an Education, Health and Care (EHC) Plan since May 2023.
20. In July 2024, the school held an annual review meeting. The Council received the review paperwork in September 2024.
21. In October, following an incident involving a member of staff, Y stopped attending school.
22. In November, Miss X contacted the Council. She complained that an annual review had not taken place, requested a change of school, and explained that Y was no longer attending school. She asked the Council to arrange education while Y remained out of school. The Council agreed to consult with alternative schools.
23. Later that month, Miss X made a further complaint. She said Y had been out of school for almost five weeks and that she had been unable to contact Y's caseworker.
24. Around the same time, the school told the Council an annual review had taken place in July and confirmed that it had already submitted the paperwork. The Council then issued a decision to maintain Y's EHC Plan.
25. Miss X disputed that a valid annual review had taken place. She said she had not been involved in the review and had not received the required paperwork beforehand.
26. The Council initially told Miss X it would arrange an early annual review if consultations with a new school were successful. However, it later told her no further review would take place because it had already decided to maintain the existing EHC Plan.
27. In early December, a further annual review meeting took place. The review identified proposed amendments to sections B, E and F of the EHC Plan. Around the same time, the Council confirmed it had received a positive consultation response from a potential new school.
28. Throughout December, Miss X repeatedly contacted the Council seeking updates on school consultations, the amended EHC Plan and the lack of education Y was receiving while out of school.
29. Later that month, the Council responded to Miss X's complaint. It apologised for poor communication by the case officer and accepted the annual review had taken place outside the statutory timescale. It also said it would remind the school of the annual review process.
30. In January 2025, Miss X escalated her complaint. She maintained that she had not been involved in the earlier annual review, said Y remained without education or special educational provision, and complained the Council had failed to arrange alternative education.
31. Later that month, the Council decided to amend Y's EHC Plan and issued a draft amended Plan shortly afterwards.
32. In March, the Council issued its final complaint response. It accepted decision letters following both annual reviews had been issued outside the statutory timescales and acknowledged it should have considered its duty under section 19 of the Education Act 1996 to provide alternative education. It said it would consider a retrospective personal budget to remedy the missed provision.
33. Later that month, the Council issued Y's final amended EHC Plan and Y started attending a new school.
34. In response to my enquiries, the Council explained the delay in issuing the final amended EHC Plan resulted from staffing capacity issues. It also confirmed that the retrospective personal budget it had proposed had not been progressed.

My findings

July 2024 annual review

35. Councils may delegate the organisation of annual review meetings to schools. We cannot investigate the actions of schools. Therefore, I cannot make findings about whether the school properly invited Miss X to the July 2024 review meeting or provided the required paperwork beforehand.
36. However, responsibility for ensuring the statutory annual review process is completed rests with the Council. It should ensure annual reviews are carried out within the required timescales, obtain the review paperwork promptly and issue its decision within four weeks of the review meeting.
37. Y's EHC Plan was issued in May 2023. The annual review should therefore have been completed by May 2024. Instead, the Council did not issue its decision to maintain the Plan until November 2024, around six months late. The Council also failed to promptly obtain the review paperwork from the school. These were faults.
38. These delays were significant. During this period Miss X was actively seeking a review because Y's circumstances had changed and Y was no longer attending school. The Council's delayed decision-making caused avoidable uncertainty, frustration and distress. Issuing a decision to maintain the Plan after Y had already left school also demonstrated a lack of oversight of Y's changing circumstances.

December 2024 annual review

39. Following the December 2024 review, the Council decided to amend the EHC Plan. Once it decided to amend the Plan it should have issued the final amended Plan within 12 weeks of the review meeting. Instead, it took around 16 weeks. This was around four weeks late and was fault.
40. The Council explained the delay resulted from staffing capacity issues. While I recognise the pressures on SEND services nationally, staffing shortages do not remove the Council's statutory duties or excuse the delay.
41. Although the delay did impact the family, I do not find the delay caused any additional significant injustice.

Alternative education

42. The Council became aware in November 2024 that Y was no longer attending school. At that point it should have established why Y was absent, considered the available evidence and decided whether it owed Y a duty under section 19 of the Education Act 1996 to arrange suitable alternative education.
43. The Council failed to do so. This was fault and resulted in Y missing suitable education between November 2024 and March 2025.
44. The Council accepted during its complaint process that it should have considered its section 19 duty and said it would consider a retrospective personal budget. However, it has confirmed this was never progressed. This was fault. Having accepted it should remedy the loss of provision, the Council should have ensured it followed through with its proposal. Its failure to do so has caused Miss X further uncertainty and time and trouble bringing her complaint to the Ombudsman.

Special educational provision

45. Throughout the period Y remained out of school, the Council continued to have a non-delegable duty under section 42 of the Children and Families Act 2014 to secure the special educational provision specified in section F of Y's EHC Plan.
46. Once the Council became aware that Y was no longer attending school, it should have satisfied itself that Y was still receiving the provision set out in the EHC Plan or taken steps to arrange it. There is no evidence it did either. This was fault.
47. As a result, Y went without the special educational provision the Council was under a legal duty to secure for approximately one and a half school terms.
48. Where council fault results in a child missing education and special educational provision, we normally recommend a symbolic financial remedy. Taking account of Y's age, individual circumstances, the provision specified in section F of the EHC Plan and the loss of education and provision over approximately one and a half school terms, I consider £2,250 is an appropriate remedy.

Communication and complaint handling

49. Throughout this period Miss X repeatedly had to chase the Council for updates. She also received inconsistent information about whether an annual review had taken place and whether another review would be arranged. This was poor communication and was fault.
50. The Council also failed to deal with Miss X's complaints in accordance with its published complaints procedure. It failed to acknowledge one complaint, and both its stage one and stage two responses were issued around 24 working days late. This was fault and caused Miss X avoidable time, trouble and frustration.

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Action

51. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to:
• Apologise to Miss X in line with our guidance on Making an effective apology;
• Pay Miss X a total of £2,750. Comprising of:
1. £500 to recognise the distress and uncertainty caused by the Council’s failures; and
2. £2,250 to recognise Y’s loss of education and special educational provision for approximately one and a half school terms.
52. Within three months of my final decision, the Council has agreed to create an action plan which sets out how, in future, it will avoid similar failures to consider its duties under section 19 of the Education Act 1996 and section 42 of the Children and Families Act 2014 when it becomes aware a child with an Education, Health and Care Plan is not attending school.
53. I have not recommended further service improvements regarding delays within the Council's SEND service. The Council has already implemented an action plan to improve the timeliness and quality of annual reviews and EHC Plan management. It has also introduced arrangements to monitor the implementation of remedies agreed through its complaints process.
54. The Council should provide us with evidence it has complied with the above actions.

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Decision

55. 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