Summary: Mrs X complained the Council delayed issuing her child's final amended EHC Plan and failed to provide suitable full-time education while they were out of school. We found the Council was at fault. This delayed Mrs X's right of appeal to the SEND Tribunal, caused avoidable distress and uncertainty, and resulted in missed education and special educational provision. The Council has agreed to apologise and make an increased payment to Mrs X.

The complaint

1. Mrs X complained the Council failed to issue their child, Y’s final amended Education, Health and Care (EHC) Plan with the statutory timescales and failed to provide full-time education whilst they have been out of school.
2. Mrs X says this frustrated their right of appeal, affected Y’s social and educational development, and affected the family’s 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. 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)
5. 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

6. 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 same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
7. Mrs X had a right of appeal to the SEND Tribunal once the Council issued Y's final amended EHC Plan. Any decision about whether a school should be named, or about the educational provision specified in the Plan, falls within the Tribunal's jurisdiction. I therefore cannot investigate those matters.
8. I have investigated the Council's delay in issuing Y's final amended EHC Plan and whether it failed to provide suitable alternative education and the special educational provision in Y's EHC Plan while Y was out of school, up until October 2025 when the final amended Plan was issued.

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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

Relevant legislation and information

EHC Plan 

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. 

Maintaining the EHC Plan

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)  

Reviewing EHC Plans

13. 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) 
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.

Service failure  

16. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

Section 19 duty

17. 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.

Arranging person centred provision

18. 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.
19. If a child has an Education, Health and Care (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.

What happened

20. Y has special educational needs and has had an Education, Health and Care (EHC) Plan for several years.
21. Following Y's annual review in December 2024, the Council decided to amend the EHC Plan because Y's school had said it would end Y's placement in January 2025 as it could no longer meet their needs. The Council began consulting alternative schools.
22. Y stopped attending school at the end of January 2025. From February 2025, the Council arranged 10 hours a week of alternative provision, delivered on a two-to-one basis in a bespoke setting.
23. In October, Mrs X complained that the Council had not issued Y's final amended EHC Plan, had not secured a new school placement and was providing only 10 hours of education each week. She asked the Council to arrange full-time education and explain what steps it was taking to secure a suitable school.
24. A week later, the Council issued Y's final amended EHC Plan. The Plan said Y required one-to-one support throughout the school day, significant speech and language therapy provision and a specialist placement. However, it did not name a school.
25. In its complaint response, the Council accepted there had been a significant delay in issuing the final amended EHC Plan. It said the delay arose because it had been unable to secure a suitable school placement. The Council apologised, offered Mrs X £200 to recognise the uncertainty and inconvenience caused, and said it would improve its systems for tracking cases and keeping families updated.
26. Mrs X remained dissatisfied and asked the Council to review its decision. She said £200 did not adequately reflect the impact on the family. She also said Y continued to receive only 10 hours of education each week, the Council had not provided all of the special educational provision in the EHC Plan, she wanted to know what action it was taking to secure both full-time education and a school placement, and she sought confirmation that Y's next annual review would go ahead.
27. In its final complaint response, the Council accepted the alternative provision was not full-time and said it was trying to arrange additional tuition, although it could not say when this would be available. It confirmed it was continuing to seek a suitable school placement and had consulted a range of schools without success. The Council offered Mrs X £2,880 to recognise three terms of missed education, said it would develop a five-year plan for additional specialist school places, confirmed Y's annual review would take place before the end of January, and repeated its offer of £200 for the delay in issuing the EHC Plan.

My findings

Delay issuing EHC Plan

28. After deciding to amend Y's EHC Plan, the Council should have issued the final amended Plan by February 2025. Instead, it did not issue the Plan until October 2025, around eight months late. This was fault. Although the Council says the delay resulted from difficulties identifying a suitable school placement, those difficulties did not remove its duty to comply with the statutory timescales.
29. The delay caused injustice because it postponed Mrs X's right of appeal to the SEND Tribunal and caused avoidable distress and uncertainty. The Council recognised some of this injustice by offering £200. Having considered our Guidance on Remedies, I consider a payment of £400 better reflects the impact of an eight-month delay.

Missed education and special educational provision

30. Y stopped attending school at the end of January 2025. From February 2025, the Council arranged 10 hours of alternative provision each week. This remained in place throughout the following three school terms.
31. The Council accepts this provision was less than full-time, which was fault, and said it was attempting to arrange additional tuition. It offered £2,880 to recognise the education Y missed. In deciding whether a further recommendation is necessary, I have considered our Guidance on Remedies, Y's age, special educational needs, the provision specified in the EHC Plan, the amount of education and provision Y received and the extent to which Y was able to access that provision. Taking all of these factors into account, I consider the Council's proposed remedy appropriately recognises the injustice caused. I therefore make no further recommendation in relation to the missed education and special educational provision.

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Action

32. 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 Mrs X in line with our guidance on Making an effective apology;
• pay Mrs X a total of £3,280 instead of the Council’s previous offers. This comprises of:
1. £400 to recognise the uncertainty caused by the delay issuing Y’s final amended EHC Plan; and
2. the £2,880 previously offered to recognise the missed education and special educational needs for three terms.
33. I have not recommended any service improvements to address delays within the Council's SEND service. Since the events of this complaint, the Council has already developed an action plan to reduce delays, including increasing staffing capacity and improving communication with parents and carers.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. 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