Summary: The Council was at fault because it delayed completing an annual review of a young person’s education, health and care plan, which meant she was without educational provision for a period of time. The Council has agreed to offer a financial remedy to the young person, and the complainant, to reflect the impact on them, as well as writing a letter of apology. The Council was not at fault for not reviewing the alternative provision the young person was receiving, because she was over compulsory school age and this requirement no longer applied.

The complaint

1. I will refer to the complainant as Mrs G. Mrs G is represented in her complaint by Ms D.
2. Mrs G complains the Council:

• significantly delayed completing the education, health and care (EHC) needs assessment and issuing an EHC plan for her daughter, F;
• inappropriately named a mainstream school on her EHC plan in June 2023;
• delayed completing the annual review of F’s EHC plan, which should have been completed by 31 March 2024; and
• failed to review the alternative provision F was receiving during the academic year 2023/24.

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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. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)

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What I have and have not investigated

7. I have investigated the third and fourth points of Mrs G’s complaint, concerning the delay in the annual review of F’s EHC plan, and the Council’s failure to review the alternative provision she was receiving.
8. I have not investigated the first two points of Mrs G’s complaint, about the delay in completing the EHC needs assessment and issuing the EHC plan, and about the Council’s decision to name a mainstream school on the plan. This is because Mrs G was aware of these points more than 12 months before Ms D complained to us on her behalf, in August 2024, which means they are late complaints, as explained in paragraph 4.
9. Although the law gives us flexibility to accept late complaints for investigation, we must first be satisfied there was a good reason for the delay in approaching us. I have seen no evidence to suggest it was unreasonable to expect Mrs G to complain to us within 12 months of becoming aware of these matters, and so I will not exercise discretion to accept them for investigation.
10. Additionally, the second point of complaint, about the mainstream school placement, is also excluded from our jurisdiction because Mrs G had a right of appeal to the SEND Tribunal about it. Again, I have seen nothing to suggest it was unreasonable to expect her to have used this right, and so I will not exercise discretion on this matter.

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How I considered this complaint

11. I considered evidence provided by the Council and Ms D as well as relevant law, policy and guidance.
12. I also shared a draft copy of this decision with each party for their comments.

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What I found

13. F has a learning disorder. She was on roll at a mainstream school, but was struggling to attend consistently, and in May 2022, Mrs G asked the Council to complete an EHC needs assessment for F.
14. The Council agreed to do this, but did not complete the process and issue an EHC plan until June 2023, some 8/9 months later than the statutory deadline, and at the end of F’s Year 11. During this period, F had dropped out of school entirely and had begun attending an alternative education provider.
15. Because of the impact of this on her education, it was decided F would repeat Year 11. However, although the Council agreed she should continue to attend the alternative provider, it named the mainstream school as F’s formal placement on her EHC plan.
16. On 17 April 2024, Ms D submitted a formal stage 1 complaint to the Council on Mrs G’s behalf. She said:

• the Council had failed to make arrangements for F to receive alternative provision when she was in the process of dropping out of school;
• the Council had misleadingly told Mrs G that F had to remain on roll at her mainstream school in order to continue attending the alternative provider, which was the reason it had named the school on her EHC plan;
• the Council had significantly delayed issuing F’s EHC plan;
• as F was repeating Year 11, there should have been a review of her EHC plan by 31 March 2024, but this had not yet happened; and
• the Council had not reviewed the alternative provision F was receiving to ensure it was adequate.

17. Ms D said the impact of the Council’s faults was that F was having to resit year 11, and was unlikely to achieve the qualifications she was academically capable of doing. She said this had caused a deterioration in F’s mental health, and that Mrs G had also had to commit time to supporting her. Ms D asked the Council to carry out an urgent review of F’s EHC plan and alternative provision, ensure it was providing adequate advice and guidance for post-16 options, provide a financial remedy for F’s missed education, and for the delays she had experienced, as well as Mrs G’s time and trouble, and to reimburse Mrs G for educational provision she had funded herself.
18. The Council replied on 10 June. It said:

• the alternative provision F was attending was an unregistered setting, and this could not be named as a placement in an EHC plan for a child of statutory school age (which F was at the time of the discussion). This was why the Council had named the mainstream school in her EHC plan. The Council acknowledged it had not reviewed F’s alternative provision, but confirmed the school had been doing so each half-term. The Council also confirmed F’s annual review had been arranged for 19 June. It partially upheld this element of Mrs G’s complaint;
• the Council acknowledged it had missed the deadline for issuing F’s EHC plan, and upheld this element of the complaint.

19. The Council highlighted that information about careers could be found on its website. It declined to provide a financial remedy, as it said F had been in receipt of education throughout the relevant period, despite the delays, but asked that Mrs G provide evidence of the educational provision she said she had funded herself, for it to reconsider reimbursement.
20. Ms D submitted a stage 2 complaint on 26 June. She said:

• Mrs G had only agreed to F resitting Year 11 because the Council had said this was necessary for her to continue accessing alternative provision;
• the alternative provision F had been receiving was not full-time, and the Council had said it would arrange additional provision, but had not;
• F’s annual review should have happened by 31 March, and she had no qualifications and no placement arranged for the next academic year, this had caused uncertainty and frustrated the right of appeal. She said Mrs G had also not been told who was to attend the review meeting or received any reports in advance;
• Mrs G considered F would be achieving well academically if the Council had reviewed her alternative provision and increased the support she was receiving.

21. Ms D said Mrs G was seeking an apology, and reiterated her request for a financial remedy.
22. The Council responded on 2 July, but declined to escalate the complaint because it said further investigation would not change the outcome. The Council also highlighted it had asked Mrs G to provide details of the alternative provision she had funded for F, but she had not done so.
23. Ms D referred Mrs G’s complaint to the Ombudsman on 8 August.

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Legislative background

EHC plans

24. A child or young person with special educational needs may have an 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. 
25. 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.
26. 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

27. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. We refer to this as section 19 or alternative education provision. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ February 2025)

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Analysis

28. I will address in turn each of the two points of Mrs G’s complaint I have investigated.

Delay in completing the annual review of F’s EHC plan

29. The Council issued F’s original EHC plan in June 2023. Under normal circumstances, the first review of the plan would therefore have been due by June 2024.
30. However, because F was resitting Year 11, she was due to transition to a post-16 option at the beginning of the next academic year. This meant the annual review should have been completed by 31 March 2024 at the latest. As the review did not happen until June, this meant it was approximately three months late. This is fault.
31. In response to my enquiries on this point, the Council said:

“The local authority accepts they were delayed carrying out the annual review for [F]. The local authority understands this would have been frustrating for [F] and we propose to write an apology letter to [F].

“As [F] had effectively been placed out of chronological year group by 1 year, the need for a phase transfer review was not effectively identified. This is a point of learning for the local authority.”

32. I note that, in the stage 2 complaint, Ms D referred to the delay in triggering Mrs G’s right of appeal as one of the problems caused by the delayed annual review. This is a common problem arising from such delays and is something we can find to be an injustice; however, in this case, I am conscious Mrs G did not ultimately make any appeal against the reviewed EHC plan. This being so, I do not consider there is any substantive injustice to Mrs G, or to F, in this respect.
33. However, Ms D has also explained that, because of the delay in reviewing the plan, F did not have a confirmed placement for the start of the 2024/25 academic year in September. Although the Council agreed to name the alternative provider as F’s ongoing placement, this was not confirmed until the issue of the reviewed plan in October, meaning she was without education for the first half of the Autumn term.
34. The chronology provided by the Council shows that, immediately following the annual review in June, the alternative provider confirmed it could offer F an ongoing placement. The Council also consulted with another possible provider, a college, which Mrs G then visited, but explained at a meeting in August that F did not wish to attend there. Although the college later offered her a place, in September the Council agreed to Mrs G and F’s preference to continue with the alternative provider. It then formalised this arrangement when it issued F’s reviewed plan in October.
35. I cannot say exactly when F resumed her placement with the alternative provider, therefore; but I am satisfied there was a delay in confirming the placement which could have been avoided had the review taken place on time, and that this is an injustice to F. I also accept Mrs G has suffered some consequent distress and frustration because of it, which is also an injustice.
36. Our published guidance on remedies says:

“Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:

• the child’s special educational needs;
• any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period; and
• whether additional provision can now remedy some or all of the loss.”

37. F was without any educational provision for approximately half a term, and I note she also did not receive the support set out in her EHC plan during this time. However, I note this support is, for the most part, about providing an amenable learning environment for F, and not substantive provision in its own right. And, given she missed education for only a relatively brief period, I am not persuaded it would be useful or necessary to seek additional ‘catch-up’ provision.
38. Taking these points together, I consider the Council should offer F a remedy of £450 to reflect the half-term of provision she missed.
39. Separately, and again in accordance with our guidance on remedies, I consider the Council should offer Mrs G £150 to reflect her frustration arising from this fault.
40. I note the Council has already committed to writing a letter of apology to F, which is positive, but for the purpose of formality I will also make a recommendation to this effect. I will add that the Council should, in the same letter, reflect upon and apologise to Mrs G for the impact its fault had on her.
41. I find fault causing injustice in this element of Mrs G’s complaint.

Failure to review alternative provision

42. Mrs G complains the Council did not review the alternative provision F was receiving, to ensure it was providing an adequate curriculum for her. She considers that, had the Council done so, and increased the support F was receiving as a result of such a review, F would now be in a better academic position.
43. The Council has again acknowledged it did not carry out any such reviews itself, and nor did it “with clarity request the school to do so”. However, the Council has provided evidence to show the school was, in spite of this, completing half-termly reviews of F’s alternative provision.
44. The law says that councils must provide arrange alternative provision for children of compulsory school age who, for a range of reasons, are unable to attend school. Compulsory school age ends upon completion of the academic year in which the child turns 16.
45. F turned 16 in January 2023, during the 2022/23 academic year. Therefore, although she was resitting Year 11 in 2023/24, she was not of compulsory school age during this period. This meant the Council’s legal duty to arrange – and review – alternative provision for her no longer applied.
46. Given F’s particular circumstances, this is not to say I consider the Council should not have maintained her provision during the 2023/24 academic year. And it is positive, again, the Council has accepted criticism that it did not review the provision. However, as the relevant guidance actually requiring it do so was no longer applicable to F, I cannot find the Council was at fault for not reviewing the alternative provision.
47. Conversely, the Council’s duty to secure the provision set out in section F of an EHC plan applies until the plan is ceased, and therefore was still applicable, regardless of F’s age. But there is no equivalent legal requirement for the Council to keep a watching brief, to ensure the section F is being delivered properly – the day-to-day responsibility falls to the named educational placement. Unless a specific concern is raised, we would not expect the Council to review the delivery of section F provision outside of the normal annual review process.
48. I find no fault in this element of Mrs G’s complaint.

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Action

49. Within one month of the date of my final decision, the Council has agreed to:

• offer to pay £450 to F, to reflect the loss of educational provision due to the delay in completing the annual review of her EHC plan;
• offer to pay Mrs G £150, to reflect her frustration at the same fault;
• write a formal letter of apology to F and Mrs G for the same reasons. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman