The Ombudsman's final decision
Summary: Ms X complains the Council failed to provide her daughter, Y, with the provision listed in Section F of her Education, Health and Care Plan and failed to consider its Section 19 duty from July 2024. Ms X also says the Council breached statutory timescales to complete an annual review and its communication has been poor. Ms X says this has caused her and her family distress and Y to miss education. We have found fault in the Councils actions for failing to provide Y with suitable education, delay in completing her annual review and for poor communication. The Council has agreed to pay Ms X a further symbolic payment.
The complaint
Ms X complains the Council failed to provide her daughter, Y, with the provision listed in Section F of her Education, Health and Care (EHC) Plan and failed to consider its Section 19 duty from July 2024. Ms X also says the Council breached statutory timescales to complete an annual review and its communication has been poor.
Ms X says this has caused her and her family distress and Y to miss education.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
Ms X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.
What I found
Education, Health and Care Plans 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.
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 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) 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. The process is only complete when the council issues a decision about the review.
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.
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.
For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.
Alternative provision Section 19 of the Education Act 1996 (the Act) says each local authority will make arrangements for the provision of suitable education at school, or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may 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 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.
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.
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.
What happened The Council issued Y’s EHC Plan in July 2024. Ms X raised concerns about the level of education the Council was providing in September 2024, which was Y’s GCSE year, and asked for an emergency review in October 2024.
The Council completed an annual review in January 2025 which said it would look to maintain Y’s EHC Plan.
Ms X raised a complaint with the Council in early February 2025 and said Y was not receiving the education set out in her EHC Plan. Ms X said she was only receiving one hour a week maths tuition and one hour a week engagement. Ms X also raised that the Council had said no change would be made to Y’s EHC Plan following the review and disagreed with this.
The Council received the annual review paperwork in early February 2025.
Ms X emailed the Council in mid-February 2025 to query why it had said Y’s EHC Plan was to be maintained, and no changes were to be made. Ms X also sent a further email in late February 2025 to say Y’s tutor had given her some test results against Y’s request which although very good results had impacted negatively on Y’s confidence and mental health.
The Council said in early March 2025 that it had prematurely issued its decision on Y’s review without the appropriate review process being completed.
The company providing tutoring to Y withdrew its services in mid-March due to non-engagement.
The Council held a multi-disciplinary meeting following the withdrawal of tutoring. The Council agreed that it would focus on Y’s review. It was agreed that Y would not enter any GCSE’s.
Ms X chased the Council in late March to see if Y’s EHC Plan had been finalised.
The Council issued a draft EHC Plan in mid-April 2025 which showed the proposed changes to Y’s EHC Plan.
Ms X emailed the Council in late April 2025 to say she had been expecting a call from it but had not received one.
The Council issued a further draft EHC Plan in late April and again in May 2025.
The Council sent a complaint response to Ms X in early June 2025 and said it apologised for the case not being actioned as quickly as it should. It recognised it had not delivered the provision set out in section F and that it had not met timescales to issue Y’s EHC Plan following the review. The Council also accepted its communication had been poor at times.
The Council issued Y’s final amended plan in late June 2025.
Ms X escalated her complaint to stage two in July 2025 and said the Council had not responded regarding a personal budget and although it had acknowledged the lack of provision it had not understood the importance of this as it was a critical year.
The Council issued a stage two response in late September 2025 and said it apologised for the shortfalls. It offered Ms X £3,150 for missed provision (£1,500 for September 2024-March 2025 and £1,650 for April 2025 to June 2025), £250 for the delay in the annual review process and £300 for the avoidable distress caused by its poor communication.
Ms X accepted the remedy offered to her in October 2025 but explained this did not resolve her complaint.
The Council has advised in response to my enquiries that in addition to the above remedy it has also taken further actions to strengthen practice. The Council says it has developed a dedicated post-16 team, improved management insight of statutory timescales and enhanced supervision of case workers. It has also clarified responsibilities between teams and improved monitoring of review activity.
Analysis Y was receiving Speech and Language Therapy (SaLT), mentoring and one hour a week of maths tuition between September 2024 and March 2025. In its complaint response the Council has accepted Y suffered a loss of provision in this period. The Council offered £1,500 for this. The Council considered as Y was receiving some alternative provision its Section 19 did not apply. Whilst I welcome the Council recognising the fault, the remedy in my view does not go far enough. Y was in her GCSE year and was not receiving the level of provision she was entitled to.
The Council also accepted Y did not receive any provision apart from SaLT between April 2025 and June 2025 when she would have finished year 11. The Council has not been able to evidence how it considered its Section 19 duty after the alternative provision service stopped providing in March 2025. The Council’s failure to put provision in place is fault. The Council offered £1,650 to recognise the loss of provision Y suffered. This is in line with our guidance.
The Council also acknowledged a delay in completing Y’s EHC Plan. This should have been finalised by 31 March as it was a transition year for Y as she was in year 11. This did not happen which is fault. The Council offered £250 for the distress caused by the delay. This is in line with our guidance.
The Council also acknowledged its communication with Ms X was poor on occasions. This is fault. The Council offered £300 in recognition of the distress this caused. This is in line with our guidance.
I understand Ms X accepted the monetary payment offered by the Council and the Council paid Ms X £3,700.
I also welcome the service improvements the Council have made following Ms X’s complaint.
Action
Within four weeks of a final decision, the Council should: Pay Ms X a further £1,500 to recognize the missed provision between September 2024 and March 2025.
The Council should provide us with evidence it has complied with the above actions.
Decision I find fault causing injustice.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman