Summary: Miss X complained the Council failed to provide a full-time suitable education for her son including the provision set out in his Education, Health and Care Plan. She also complained the Council failed to issue the final amended EHC Plan within the statutory timescales. The Council delayed in finalising the EHC Plan and has failed to evidence that it properly considered whether the education provided amounted to a full-time suitable education. The agreed remedy includes a payment for the lost educational provision.

The complaint

1. Mrs X complains the Council failed to provide a full-time suitable education for her son including the provision set out in his EHC Plan. She also complains the Council failed to issue the final amended EHC Plan within the statutory timeframes after an emergency review in December 2023.
2. Mrs X says the situation has caused distress and anxiety to her son and the whole family.

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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(i), 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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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and invited their comments.

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What I found

EHC Plan 

7. 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. 

Reviewing EHC Plans

8. 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. The process is only complete when the council issues its decision to amend, maintain or discontinue 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) 
9. 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.
10. 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.
11. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Educational provision – available and accessible

12. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Delivery of special educational provision

13. We recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC Plan all the time, for example the council may secure provision which subsequently stops without it being informed. The Ombudsman does consider that councils should be able to demonstrate due diligence and as a minimum 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 placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Key facts

14. This section sets out the key events in this case and is not intended to be a detailed chronology.
15. Ms X’s son, Z, has had an EHC Plan since 2020. In 2023, Z stopped going to school full time. He moved to a part time timetable and then there was a period of time when he didn’t attend school at all.
16. Miss X says the school was not providing all the educational provision detailed in the EHC Plan. She says that Z should have been provided with one to one supervision in the playground. She says he was provoked by another child which resulted in Z punching him. Z was then placed on an internal exclusion and moved to a different part of the school. She believes this led to the placement breaking down and that if the stated provision had been provided the outcome for Z would have been very different.

Review of the EHC Plan

17. An emergency review of Z’s EHC Plan was arranged with the meeting due to be held on 14 November 2023. The meeting was re-arranged at Miss X’s request and was held on 5 December. Following this the Council began consulting with specialist school settings. A council officer visited the school to observe Z and also conducted a home visit. Discussions took place with Miss X about engagement with the school along side a home tutor. It is my understanding two hours home tuition began in January 2024.
18. The Council issued the draft EHC Plan on 15 April. Miss X requested the Council include the recommendations from private reports she had commissioned. The Council refused this request but made a referral to its own Speech and Language Therapy service. The Council issued the final EHC Plan on 22 July and on 20 August named the school which was Miss X’s preference. The Council says it named the preferred school as soon as it was able to. It previously told Miss X that it could not include the school until it received its Department of Education registration.
19. Miss X, unhappy with the educational provision set out in section F of the EHC Plan, made an appeal to the SEN Tribunal. The hearing date has been confirmed as 22 October 2025.
20. A council is required to issue the final EHC Plan within 12 weeks of the review meeting. As the review meeting was held on 5 December 2023 and the final EHC Plan issued on 22 July, the Council failed to meet this statutory timescale. The final EHC Plan was issued more than 20 weeks late. This is fault. The Council says the delay arose due to capacity challenges within the SEND service. It has apologised for the delay.
21. The delay meant Miss X’s appeal rights were frustrated. I consider a payment should be made to acknowledge the avoidable delay and distress caused to Miss X.

Provision of education

22. From September 2023, Z failed to attend school full time due to anxiety. Miss X says the failure of the school to provide the special educational provision in his EHC Plan exacerbated this. Miss X says that she raised the issue of a lack of education for Z with a councillor in September and believes the councillor raised the issue directly with the school and internally in the Council. I have not seen any evidence to support this.
23. The Council says it was not aware Z was not attending school full-time until the emergency review meeting in December 2023. From January 2024 Z was attending school one to two afternoons per week and was receiving two hours home tuition. Miss X says the attendance at school was to play with his peers and that he did not receive education at those times. Miss X says she found tutors and also put OT provision in place. She raised this with the school and says it then covered the cost.
24. The Council has a duty to secure the provision specified in section F of an EHC Plan. This duty is owed personally to the child and is non-delegable. This means that if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible.
25. As explained at paragraph 13 above, there is a minimum we expect councils to do to ensure the provision set out in an EHC Plan is delivered. I have not seen any evidence to suggest the Council knew Z was not attending school full-time prior to the review meeting on 5 December. But from that date it had a duty to ensure a suitable full-time education was provided and that the SEN provision was delivered. I note that some action took place and that an officer observed Z at school and at home and there were discussions about home tuition.
26. I have not seen any evidence to show the Council fully considered that the tuition provided to Z amounted to a suitable full-time education that was available and accessible and that the provision in section F of his existing EHC Plan was delivered. This is fault. I am recommending a payment to cover the lack of educational provision from December 2023 until the final EHC Plan was issued in July 2024. I consider this amounts to two terms of education provision.
27. The Ombudsman’s guidance on remedies says that where fault has resulted in a loss of educational provision, we will usually recommend a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. In deciding the amount to recommend in this case I have taken account of Z’s special educational needs and that some tuition was provided.

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Agreed action

28. To remedy the injustice caused as a result of the fault identified above the Council will, within one month of my final decision, take the following action:
• Apologise to Miss X;
• Make a symbolic payment of £300 to recognise the distress caused as a result of the delay in finalising the EHC Plan;
• Make a payment of £4,000 to be used for Z’s benefit to acknowledge two terms of lost educational provision.
29. The Council should provide us with evidence it has complied with the above actions.
30. I have decided not to recommend any service improvements as the Ombudsman has recently upheld complaints against this council about similar issues which included service recommendations and is satisfied with the actions taken.

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Final decision

31. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman