The Ombudsman's final decision
Summary: Mrs X complained the Council did not issue her child’s Education Health and Care Plan within statutory timescales and did not provide the provision set out in the Plan. Mrs X says this impacted her child’s education and emotional wellbeing. We find fault with the Council which caused injustice. The Council has agreed to make a payment to Mrs X and take service improvement action.
The complaint
Mrs X complains about the Council’s handling of her child, Y’s, education. Specifically, she complains the Council: Did not meet statutory timescales to review Y’s Education Health and Care (EHC) Plan; and Did not provide the provision set out in the EHC Plan.
Mrs X says this has impacted her child’s education and emotional wellbeing. She says it has also caused her avoidable distress and financial strain.
The Ombudsman’s role and powers
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) 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.
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) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
What I have and have not investigated Mrs X complains about matters which began in March 2024. Mrs X brought her complaint to us in May 2025. As I have explained above, we cannot investigate late complaints unless there are good reasons. I consider it was reasonable for Mrs X to complain about matters sooner. For this reason, I have investigated from May 2024 because this is 12 months before she brought her complaint to us.
I have investigated both parts of the complaint from May 2024.
How I considered this complaint
I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I found
What should have happened 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 council can do this.
The EHC Plan is set out in sections which include: Section B: Special educational needs.
Section F: The special educational provision needed by the child or the young person.
Section I: The name and/or type of educational placement Statutory timescales (part a of the complaint) 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) 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.
Provision (part b of the complaint) 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) 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.
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.
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.
If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.
What happened Prior to May 2024, Y’s EHC Plan named a mainstream school. It detailed strategies for the school to use to meet Y’s needs. It said the Council would provide the school with additional funding to meet these provisions. Mrs X requested a reassessment of Y’s needs and told the Council Y was having difficulty attending school. The school told the Council Y’s attendance was 33%.
In May, Mrs X contacted the Council and requested a personal budget.
In mid-May, the Council declined Mrs X’s request for a reassessment. It said this was because the Plan already reflected the information Mrs X provided in her reassessment request. It told the school it should consider seeking advice from professionals to support Y to access school and consider making a referral to children’s ‘early help’ social care department.
Mrs X requested a meeting with the Council to discuss the way forward with Y. The Council did not respond to her request.
In July, Y’s annual review was due.
In early July, the school arranged an annual review of the EHC Plan. The school did not invite the Council to the review. Mrs X requested to reschedule the meeting. The review did not go ahead.
In mid-July, the school arranged another review. It invited the Council. The Council did not attend this review. The review did not go ahead.
In late September Mrs X told the Council Y had not attended school for three weeks. The Council sent Mrs X a referral form for a support service.
In early January 2025, Mrs X requested another review.
In mid-January, the Council scheduled an interim review meeting. Mrs X attended and then asked to stop the meeting. The Council did not complete the review.
Mrs X told the Council she would like Y to remain on school roll and be supported by an additional Education Other Than At School (EOTAS) package. She told the Council Y had not accessed education at school since summer 2024.
The Council told Mrs X it agreed the aim was for Y to reintegrate into accessing school full time. It explained it would work with the school to achieve this. It asked for medical information and provided the details of several providers which offer tuition for Mrs X to consider.
In late February, the Council held an annual review meeting.
In March, Mrs X told the Council the alternative provision provider had scheduled a home visit to assess Y.
In April, the alternative provision provider completed the home visit.
In May, the school sent the Council the annual review paperwork for the halted meetings in July 2024.
In June, alternative provision was made available to Y. Y was offered up to four hours one-to-one tuition per week in the core subjects to reengage them with education with the plan of reintegrating them into school.
In July, the Council issued the draft EHC Plan.
In August, the Council issued the finalised EHC Plan. The Plan said Y should be educated in a mainstream school placement. The Council provided Mrs X with her right to appeal to Tribunal. Mrs X appealed Sections B, F and I of the Plan.
In October, the Council made further alternative provision available to support Y to reengage with school. Y’s engagement with the offered provision was mixed. The Council reports Y engaged well with one tutor however their engagement with the provision offered by the other tutors was limited.
Analysis Statutory timescales (part a of the complaint) We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Statutory guidance says councils must arrange for the EHC Plan to be reviewed at least once a year. The Council should have issued its final EHC Plan by July 2024. It issued its finalised EHC Plan in August 2025. This is eleven months longer than statutory timescales allow. This delay is fault.
Councils can delegate EHC Plan review meetings to schools. I consider Mrs X’s decision to stop the review meetings going ahead on two occasions contributed to the delay. This said, the Council is responsible for the overall review process and meeting its statutory timescales. The Council could have completed the annual review process within the statutory timescale and issued Mrs X with her right to appeal.
The Council says the school’s delay providing the paperwork also contributed to its delay finalising the Plan. The Council has taken action with the school regarding its delays providing required paperwork. We cannot investigate matters regarding internal school matters. In any case, the Council remains responsible for meeting its statutory timescale and it took a further three months to issue the final Plan once it received the paperwork.
The finalised Plan in August 2025 named a mainstream school placement. The Council finalised this Plan with consideration to additional information about Y’s needs and increased school nonattendance which was available because of its significant delay. For this reason, I consider that on a balance of probabilities, if the Council had finalised the Plan before this date, it likely would also have named a mainstream school placement. Therefore, I consider the Council’s delay did not cause Y to lose provision they would have otherwise accessed.
The Council’s delay of eleven months frustrated Mrs X’s right to appeal. I am satisfied Mrs X would have used her right to appeal at the earlier time. Eleven months is a significant delay to begin the Tribunal process. For this reason, I consider this delay has caused Mrs X avoidable and unnecessary uncertainty about Y’s education, and any education provision they could have accessed if she had been able to use her appeal right earlier.
The Council offered Mrs X £250 to remedy the avoidable distress and uncertainty caused by its delay issuing the final Plan. I consider the amount offered by the Council is appropriate and proportionate to the distress caused.
The remedy the Council offered Mrs X did not include consideration of her frustrated right of appeal. I have considered her frustrated right of appeal in the remedy for the loss of provision, in line with our published guidance on remedies, which I have addressed in the section below.
Provision (part b of the complaint) The Council became aware there were difficulties with Y’s school attendance prior to May 2024. The Council was aware Y was still accessing some school. The provision detailed in Y’s EHC Plan focused on strategies for the school to use to support Y to access education. I consider it was not practicable for the Council to provide the provision set out in Y’s Plan outside of a school placement. The Council provided the school with advice including strategies and resources to support Y to access school and therefore also the provision in their EHC Plan. I am satisfied the Council acted in line with statutory guidance. I find no fault.
I am satisfied the Council was made aware Y had not attended school for three weeks in September 2024. The Council says it was not informed Y was not accessing school until January 2025. I consider there was a delay in the Council considering its section 19 duty, which is fault. We cannot say, even on balance, whether the Council would have accepted a section 19 duty at that point and provided alternative provision. This is because the school made adaptions and referrals to support Y to reintegrate into school and statutory guidance says councils should consider attempts being made by the school in its decision. For this reason, I consider the delay caused Mrs X avoidable uncertainty about the education Y could have accessed during the Autumn term.
The Council accepts it delayed making alternative provision available to Y from January 2025. It made the provision available in June 2025. This meant Y did not have access to education for the spring term and half of the summer term. This is fault. I consider this fault caused Y to lose some education provision, which is injustice.
The Council initially made four hours of tuition available to Y and increased the package in October. I am satisfied the Council considered the provision met Y’s age, ability and aptitude, and their special educational needs. Y engaged well with the provider from June and had limited engagement with the additional package made available in October. On balance, I consider had the full provision been made available to Y before October 2025, their engagement would most likely have been somewhat limited too.
The Council apologised to Mrs X for the lack of educational provision provided to Y from January 2025. It offered Mrs X £250 to remedy the injustice caused by the missed provision. I do not consider this amount is proportionate to remedy the injustice caused.
Mrs X says the Council’s failure to secure provision caused her financial strain because it meant she could not work due to her additional caring responsibilities. Our symbolic financial remedy is intended to remedy injustice caused to the child from missing provision, as well as consequential injustice caused to the family due to this fault. This includes where there are significant additional caring responsibilities that occur from a child being out of education and avoidable disruption to daily routine.
Action
Within four weeks of the final decision statement, the Council has agreed to: make a payment of £1800 to remedy the loss of education caused by its delay arranging alternative provision for Y. This amount remedies the period from January to June 2025 which was the entire spring term and half of the summer term. In considering this figure, I considered Y’s individual circumstances, that they did not access any education during this period and the significant delay which frustrated Mrs X’s right of appeal. I have also considered Y’s engagement with tuition once it was made available. I consider this amount appropriate and proportionate to the injustice caused. If the Council has already made a payment of the £250 it offered Mrs X for the lack of provision, it should take it from this amount from the £1800.
produce an action plan to demonstrate how the council will meet statutory timescales for annual reviews.
The Council should provide us with evidence it has complied with the above actions.
Decision I find fault causing injustice. The Council has agreed actions to remedy injustice.
Investigator's decision on behalf of the Ombudsman