Summary: Mrs X complained the Council failed to act on its decision a special school would be suitable for her son, who I will refer to as Y. She also complained the Council did not provide alternative provision to Y, and its communication was poor. The Council was at fault. It failed to properly consider whether it had a section 19 duty, failed to issue decision letters following annual reviews, and delayed issuing the final amended Education, Health and Care (EHC) Plan. Its communication was also poor. Mrs X and Y suffered distress and uncertainty, and Mrs X had a delayed right of appeal as a result. The Council will apologise to Mrs X and make symbolic payments.

The complaint

1. Mrs X complains the Council failed to act and update her son, Y’s, Education, Health and Care (EHC) Plan following the provision panel’s decision a special school would be suitable for him. She says this led to him wrongly being placed in a mainstream school. Mrs X also complains the Council did not arrange alternative education provision for Y when he stopped attending school and its communication with her was poor.
2. Mrs X says as a result, she and her family have suffered distress, and they have been financially impacted. She says Y has also missed education which in turn, has worsened his anxiety and led to isolation.
3. Mrs X would like the Council to:
• Take accountability for its failings.
• Pay a financial remedy.
• Secure an appropriate special school place for Y.
• Arrange alternative education provision for Y while a school place is confirmed.
• Remove the mainstream school from section I of Y’s EHC Plan.
• Improve its service so similar failings do not happen in future.

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The Ombudsman’s role and powers

4. 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 future we may recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. 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)
8. 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

9. I have investigated matters in this case from late June 2024 to early September 2025. I reference matters outside of these dates for context.
10. We would not usually consider matters after the date someone has received a decision which carries a right of appeal. However, in this case, Mrs X did not receive decision letters informing her of her right to appeal to the SEND Tribunal when she should have, after the March 2025 and June 2025 annual reviews. So, it was not reasonable to expect Mrs X to appeal. As such, I have investigated this period, and I have ended my investigation at the point she later appealed, in early September 2025, for the reasons outlined in paragraph 5.

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How I considered this complaint

11. I considered information and evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. 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

Section 19 duty

13. 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.
14. 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.

EHC Plan 

15. 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. 
16. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

Maintaining the EHC Plan

17. 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

18. 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) 
19. 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.
20. 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.

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What happened

21. This is a summary of events outlining key facts and it does not include everything that has happened in this case.
22. The Council issued Y his first EHC Plan in March 2024. In section I, it named a mainstream primary school until July 2024 and named a mainstream secondary school from September 2024.
23. In late June 2024, the provision panel discussed a request Mrs X had made to the Council for a special school place for Y. The panel decided a special school would be appropriate for Y, and it sent a consultation to the nearest special school.
24. In March 2025, an annual review of Y’s EHC Plan was held. In response to my enquiries, the Council says it has no evidence this annual review was formally processed, or that a decision letter was shared with Mrs X.
25. In mid-May 2025, Y stopped attending school. Mrs X told the Council Y’s school could not meet his needs nor support his wellbeing. Mrs X asked the Council for an emergency review of Y’s EHC Plan.
26. In late June 2025, an emergency review of Y’s EHC Plan was held. Mrs X requested the Council amend section I of Y’s EHC Plan to education other than at school (EOTAS). The Council’s decision was not to amend the EHC Plan. It did not send Mrs X a decision letter or advise her of her right to appeal to the SEND Tribunal.
27. Around the same time, Mrs X also asked the Council to arrange section 19 alternative provision for Y. The Council told Mrs X that Y’s school remained responsible for arranging alternative provision if necessary, and that it required medical evidence of Y being unable to attend school.
28. In late July 2025, the Council told Mrs X it was agreed at panel in June 2024 that Y’s needs could be met at a special school. As such, it asked Mrs X if she still wished to go to panel with her request for EOTAS, or if she wished for the Council to consult with special schools, or both. Mrs X told the Council she was not aware of the June 2024 panel decision. She told the Council to consult with special schools alongside her EOTAS request, until a special school place became available for Y.
29. Around the same time, Mrs X complained to the Council. She told it she was unhappy the Council did not share the June 2024 panel decision that a special school would be appropriate for Y, with her. She was therefore unhappy section I of Y’s EHC Plan still named a mainstream school.
30. In early August 2025, the Council decided to amend Y’s EHC Plan. The Council sent Mrs X the amended draft EHC Plan around the same time. Mrs X reiterated to the Council her preference for Y was a special school. In mid-August 2025, the Council sent consultations to special schools.
31. In early September 2025, Mrs X lodged an appeal with the SEND Tribunal. She appealed section I, as a mainstream school was still named in Y’s EHC Plan. The Council’s view was it had not yet issued an amended final EHC Plan with a decision about section I, so Mrs X’s appeal was premature. However, the SEND Tribunal dismissed this. It decided that the Council’s decision not to amend the EHC Plan following the emergency review in June 2025 was a decision which gave Mrs X the right to appeal, and that the Council should have issued a decision letter to advise such.
32. In early December 2025, the Council issued an amended final EHC Plan for Y. Section I listed the type of setting as special school, but a special school was not named.

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Analysis

33. Following the June 2024 panel decision that a special school could meet Y’s needs, the Council consulted with a special school which it says Y remained on the referral list for. However, it allowed matters to drift and did not chase this school for a response until Autumn 2025. The Council also did not discuss the panel decision with Mrs X until July 2025. This poor communication was fault. The school returned a negative response to the Council in December 2025 that it could not offer a place for Y, as did other special schools it consulted with. However, had the Council informed Mrs X of the provision panel’s decision sooner, she may have asked the Council to consult with special schools sooner as her preference, given she later asked the Council to do this when it informed her of the panel decision. This causes Mrs X uncertainty about what the outcome of any earlier consultations might have been had the Council informed Mrs X of the panel decision in June 2024 and made consultations with special schools at this time. Although, while the provision panel decided a special school was appropriate for Y, I do not consider this equates to all mainstream schools being unable to meet Y’s needs.
34. However, Y stopped attending school in mid-May 2025, which the Council was aware of. So, at this point it should have considered whether it had a section 19 duty to provide suitable alternative provision. But, the Council placed the responsibility of alternative provision on Y’s school. It is the Council’s responsibility to decide whether it has a duty to make alternative provision.
35. Instead, when Mrs X asked the Council to arrange section 19 alternative provision in late June 2025, the Council told her Y’s school could not arrange alternative provision without medical evidence that he could not attend school. This is not in line with statutory guidance, which says councils must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. It says councils must look at the evidence for each individual case, even where there is no medical evidence, and make their own decision about alternative education.
36. The Council did not properly consider whether it had a section 19 duty to provide alternative provision, or whether it considered any action necessary to ensure Y received the provision in his EHC Plan. This was fault. This causes uncertainty to Mrs X and Y about whether the Council would have provided alternative provision to Y, and what alternative provision he might have lost the opportunity to receive, had the Council properly considered its section 19 duty.
37. I also have concerns about the Council’s handling of annual reviews in this case. An annual review of Y’s EHC Plan was held at the end of March 2025. Following this, the Council should have issued a decision to either amend, maintain or cease to maintain the EHC Plan. The Council says it has no evidence it formally processed this annual review or that it sent a decision to Mrs X. This was fault, which caused Mrs X uncertainty about what the outcome of the review might have been, and if she might have had appeal rights at this time.
38. Another review was held in late June 2025. The Council’s decision was to maintain Y’s EHC Plan and not amend it. As such, it should have sent this decision to Mrs X, informing her of her right to appeal the decision to the SEND Tribunal. The Council did not send a decision letter to Mrs X. This was fault. This meant Mrs X did not receive her right to appeal. Had the Council issued a decision letter at this time, Mrs X would have had the opportunity to appeal to the SEND Tribunal sooner.
39. The Council later decided to amend Y’s EHC Plan in early August 2025. When the decision is to amend, the Council must issue the final amended EHC Plan within 12 weeks of the review meeting. The review was held in late June 2025. The Council issued the final amended EHC Plan in early December 2025. This is a delay of roughly 10 weeks. This was fault, which caused Mrs X distress and frustration.
40. The Council’s communication with Mrs X was also poor. It has not always responded to her correspondence in a timely manner and there have been occasions Mrs X has chased the Council for updates. Further, the Council has accepted it overlooked the provision panel’s decision during discussions with Mrs X, and has accepted other miscommunications throughout the period I have investigated. Mrs X was already under significant pressure due to other failings by the Council, and its poor communication caused additional frustration.
41. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
42. We have published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
43. In its stage one response, the Council offered Mrs X £200 to acknowledge the distress and frustration caused to her. In the circumstances of this case, this is not sufficient to reflect the injustice caused to Mrs X and Y by the identified faults. The Council has agreed a remedy below to reflect this.
44. We have made service improvement recommendations in other cases where we have identified similar faults. The Council also has a SEND Improvement Plan in place which outlines areas for improvement and actions it will take to meet these goals. As such, I have not made any service improvement recommendations as the Council is already taking action to improve its services.

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Action

45. To remedy the outstanding injustice caused to Mrs X and Y by the identified faults, the Council will take the following actions within four weeks of my final decision:
• Apologise to Mrs X for the injustice caused to her and Y by the Council’s failure to properly consider whether it had a section 19 duty to provide alternative provision and consider if action was necessary to ensure Y received his EHC Plan provision. The Council should also apologise for the failure to process and issue a decision after the March 2025 review, its failure to issue a decision letter after the June 2025 review, its delay in issuing the final amended EHC Plan, and its poor communication.
• Pay Mrs X £400 for the injustice caused to her and Y by the Council’s failure to properly consider whether it had a section 19 duty to provide alternative provision and consider any action necessary to ensure Y received the provision in his EHC Plan.
• Pay Mrs X £500 for the injustice caused to her by the Council’s failure to issue the annual review decision letters, its delay in issuing the final amended EHC Plan, and its poor communication, including the delay in discussing the panel decision with Mrs X.
46. The Council should provide us with evidence it has complied with the above actions.

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Decision

47. I uphold Mrs X’s complaint and find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman