Summary: Mrs X complained about the way the Council carried out an Annual Review of her son’s (Y) Educational Health and Care Plan and its failure to arrange alternative education and special educational provision for Y when he was out of school. She also raised the issue of the Council’s complaint handling. We found no fault with the Council. We cannot investigate the Council’s post-review amendments to Y’s plan as they were part of Mrs X’s appeal to the Tribunal. We will not investigate anything that was linked to Mrs X’s appeal.

The complaint

1. Mrs X complains about the Council’s failure to:
• comply with the Local Government and Social Care Ombudsman’s (LGSCO) recommendation to carry out review of Y’s Education, Health and Care (EHC) Plan within one month from 9 May 2025;
• provide education and deliver special educational provision to Y from the beginning of September 2025;
• draft accurate Section F of Y's EHC Plan issued on 22 September 2025;
• consult schools, including parental preference;
• follow the correct process for handling complaints.
2. The Council’s failure, Mrs X says, caused Y emotional harm and long-term risk of disengagement. Because of the Council’s failings Y lost education. They also, she says, put strain on the whole family.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused a significant injustice or that could cause injustice to others in the future we may recommend a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(3 and 4) as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended)
6. 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)
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
9. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
10. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
11. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin)
12. 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)
13. 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

14. I have not investigated any amendments to Sections B, F and I of Y’s EHC Plan stemming from the Annual Review of this plan. Mrs X appealed these parts of the plan to the SEND Tribunal. As pointed out in paragraph seven we cannot investigate anything that has been appealed.

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How I considered this complaint

15. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
16. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

EHC Plan and appeals

17. 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. 
18. The EHC Plan is set out in sections which include: 

• Section A: The views, interests and aspirations of the child and their parents.
• 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 

19. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
20. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of Sections B, F and I of the final EHC Plan. (Children and Families Act 2014 Section 51(2))

Annual Review

21. 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) 
22. 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.

Alternative provision and delivery of special educational provision

23. 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.
24. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)

What happened

25. This section is not a full account of everything that happened but an outline of events which are relevant to this decision.

Background

26. Y has complex special educational and health needs. He is of primary school age.
27. At the end of November 2024 the Council issued Y’s post-Tribunal EHC Plan. The Council named a specific independent school (School 1) for Y from January 2025.

Annual Review

28. At the beginning of May 2025 in our decision ending investigation of Mrs X’s previous complaint we recommended the Council within a month arrange and hold Y’s Annual Review.
29. School 1 arranged an Annual Review meeting for 10 June 2025. This was a month from our final decision.
30. Four days before the proposed date of the meeting Mrs X asked School 1 to send any reports and documents two weeks in advance of the Annual Review meeting. She agreed to meet on 10 June and sent her and Y’s views. A day before the meeting date Mrs X asked to reschedule the meeting until all the documents, including a Multi-Disciplinary Team (MDT) report, could be shared in advance.
31. On 24 June School 1 arranged a review meeting for 9 July and send the MDT report as well as the school’s Annual Review report. Following Mrs X’s complaint about the MDT report, the meeting was re-arranged for 17 July 2025.
32. The MDT prepared a final version of its report on 21 July 2025. The MDT consisted of: an Occupational therapist (OT), a Speech and Language therapist (SLT), a Play therapist and an Assistant Psychologist.
33. On 6 August the Council sent its proposed amendments to Y’s EHC Plan to Mrs X. Mrs X asked Y’s case officer (the Case Officer) to extend the timescale for her response to 1 September 2025. Throughout August 2025 the Case Officer liaised with Mrs X about the amendments.
34. The Council issued Y’s final EHC Plan on 22 September 2025. A few days after issuing Y’s final EHC Plan the Council started consulting with special schools.
35. In mid-October 2025 the SEND Tribunal registered Mrs X’s appeal against Sections B, F and I of Y’s EHC Plan. Mrs X asked the Tribunal to order SLT and OT assessments for Y. She considered:
• Section B did not fully and accurately reflect Y’s pathological demand avoidance profile and presentation;
• Section F was inadequate, unspecific and not quantified. OT provision was incomplete;
• no school was named in Section I.
36. In mid-May 2026 the SEND Tribunal issued its decision for Mrs X’s appeal. Among other amendments to Y’s EHC Plan the Tribunal ordered to:
• add the need for all staff working with Y to have a pathological demand avoidance training;
• name a specific independent school (School 2) in Section I of Y’s EHC Plan.

Alternative provision

37. The Head of Special Educational Needs and Disabilities (SEND) (the Senior Leader) in the Council attended a meeting with Mrs X in mid-July 2025. A day after the meeting she confirmed School 1 would take Y off its roll and the Council would arrange an interim package of support for him from September 2025. The Council would carry out consultations with specialist setting.
38. In July 2025 Mrs X told the Case Officer that tutoring at home would not be suitable for Y. She had liaised with an alternative provider (Provider 1), who confirmed their availability from September 2025. Mrs X asked the Council to make arrangements with Provider 1.
39. At the beginning of September 2025 the Council offered Y a 75-minutes session per week at Provider 1 starting from mid-September.
40. The Case Officer contacted Mrs X a few days later. She was consulting with several tutoring agencies to find out which of them could meet Y’s needs. The Case Officer made it clear that tutoring would take place outside Y’s house. She also mentioned other alternative provision which she was exploring for Y.
41. Ten days later the Case Officer liaised with Mrs X about further provision identified for Y. The Council proposed an outdoor learning centre (Provider 2) and provision from a specialist educational setting supporting children with autism as well as social, emotional and mental health difficulties (Provider 3). Provider 3 could offer sessions if Mrs X attended them. Mrs X did not consider it would be suitable for Y to have a package of support from many different providers.

Complaint

42. At the beginning of September 2025 Mrs X complained to the Council. She raised the lack of alternative provision and non-delivery of special educational provision for Y, the Council’s delay with the Annual Review of Y’s EHC Plan in contradiction to the Ombudsman’s decision from May 2025 and errors in the amendments proposed to Y’s EHC Plan.
43. The Council’s SEND manager responded to this complaint in mid-September. She said the Council was seeking additional suitable providers for Y as Provider 1 had confirmed they could only offer one 90-minutes session for Y per week. The Council aimed to secure suitable education and delivery of special educational provision included in Y’s EHC Plan. The Council had already offered Y tutoring at home and tutoring in public spaces but Mrs X declined these offers as unsuitable. After completing post-review amendments to Y’s EHC Plan the Council would send consultations to schools to seek a place for Y. The Council stated any delays with the EHC Plan amendments were caused by the delays in getting updated reports from the MDT and an Educational Psychologist (EP).
44. On the same day Mrs X asked the Council to consider her complaint at stage two. She clarified that when refusing the Council’s tutoring offer, she was guided by Y’s needs, as clarified in the professional reports. She also raised disparities between the Case Officer’s correspondence about the educational offer from Provider 1 and the stage one complaint response. Mrs X queried amendments made to Y’s EHC Plan following the Annual Review meeting in July 2025. She also stressed the Council’s delay in carrying out this review.
45. The Senior Leader upheld the Council’s stage one complaint response. She stated the Council’s priority had been to finalise Y’s EHC Plan to enable consultations with suitable schools following Y’s removal from School 1’s roll. Meanwhile the Council had been exploring interim provision for Y. The Council exhausted all the options and asked Mrs X to suggest any other provision which might meet Y’s needs. The Senior Leader offered Mrs X a meeting to discuss possible interim options, including a Personal budget.

Analysis

Annual Review

46. The Council should have started the Annual Review of Y’s EHC Plan by 9 June 2025. If this had happened, Y’s amended EHC Plan should have been issued within 12 weeks, so by the beginning of September 2025.
47. There was a short delay with arranging an Annual Review meeting, which meant that the Council issued Y’s EHC Plan three weeks later than it should have done. The delay was caused by the circumstances beyond the Council’s control, such as the unavailability of the MDT report and Mrs X’s disagreement with its content. Because of this, as well as considering the length of the delay, I did not find the Council’s failure to complete Y’s Annual Review on time amounted to fault.
48. During the process of making amendments to Y’s EHC Plan the Council obtained Y’s and Mrs X’s views and extensively liaised with Mrs X about the content of the plan, including Section A. Although Mrs X was not satisfied with the final result, when amending Y’s EHC Plan the Council followed the right process. As explained in paragraph four in such circumstances we would not criticise the Council’s decision on what to include in Y’s EHC plan.
49. The Council carried out consultations with schools from the end of September 2025. This normally should have happened before issuing a final EHC Plan. In view of the complexity of this case and the importance of getting the content of the plan right before sending it to schools, I do not find fault with the Council’s short delay.

Alternative provision and delivery of special educational provision up to the end of September 2025

50. In July 2025 the Council agreed Y could no longer attend School 1 and needed alternative provision before the Council found him a suitable school placement. Around the same time the MDT prepared its advice for Y which informed amendments to Y’s EHC Plan.
51. Although the Council’s consultations with alternative providers did not start until September 2025, throughout August the Council liaised with Mrs X about amendments to Y’s EHC Plan. Amending Y’s EHC Plan following the most recent professional advice was important to ensure any provision secured for him was suitable.
52. For the reasons explained below I can only look at the Council’s actions up to the date of Y’s final EHC Plan in September 2025. In September the Council offered Y a place at Provider 1 and identified Provider 2 and Provider 3 as extra options for Y. Although Mrs X did not consider the interim package of support offered by the Council was suitable for Y, the Council’s actions were correct. The Council continued engaging with Mrs X and discussing various options, which is what we would expect.
53. Delivery of special educational provision was linked to Y’s education. Y not accessing education meant he did not receive special educational provision either. I have no way of determining whether what the Council offered as alternative provision could meet Y's needs and was suitable for him. There was dispute between Mrs X and the Council about the content of Y’s EHCP and consequently suitability of any provision offered was dependant on the SEND Tribunal decision. Although Y did not receive education and special educational provision in September 2025, I found no fault with the Council’s process.

Alternative provision from 22 September 2025

54. The courts explained an appeal against Section I of a child’s EHC plan refers to a council’s decision to name an unsuitable school or its failure to act to name a suitable school. The consequence of such decision might be that the council fails for a period of time to discharge its duty to provide alternative education. The courts clarified the Ombudsman had no jurisdiction to investigate the consequences of a decision if investigation of the decision itself was excluded.
55. If a person disagrees with the placement named in an EHC plan or there is no placement named, we would generally not remedy a loss of education after the date the right of appeal was engaged.
56. I did not investigate the Council’s actions about Y’s alternative provision from the date of Y’s final EHC Plan issued in September 2025. This is because provision of alternative education to Y was linked to Mrs X’s appeal to the SEND Tribunal.
57. The Council’s Section 19 duty was linked to two elements of Mrs X’s appeal:
• dispute about the content of Section I of Y’s EHC Plan. Mrs X asked the SEND Tribunal to name a special school for Y, which would have a bearing on the Council Section 19 duty;
• dispute about Section F of Y’s EHC Plan. Mrs X asked the Tribunal to order that all staff in any educational setting supporting Y had a pathological demand avoidance training. Deciding whether Y needed this provision would determine the type of alternative provision suitable for Y.

Non-delivery of special educational provision from 22 September 2025

58. As explained in paragraph eight we normally would not investigate any issues which are closely linked to the appealed matters.
59. Mrs X considered Sections B and F of Y’s EHC Plan inadequate. Section B, Mrs X said, failed to describe Y’s needs accurately. Section F failed to specify all the provision needed to address Y’s special educational needs. Besides Mrs X asked the SEND Tribunal to order further assessments of Y’s SLT and OT needs. She considered all staff in Y’s future educational placement should have pathological demand avoidance training. Thus the extent of the appeal was wide and not fully determined in the application for appeal.
60. Because of the extent of Mrs X’s challenge to Sections B and F and its open-ended nature, looking at the non-delivery of special educational provision for Y would be too closely linked to the appeal issues. Our investigation might interfere with the SEND Tribunal jurisdiction.

Complaint

61. The Council’s corporate complaint procedure says that if the complainant is not satisfied with the Council’s stage one response, they can ask for a review of their complaint. This review will be carried out by on independent senior manager who will review the first response and provide a written response to the escalated complaint.
62. Mrs X said the Senior Leader, who responded at stage two, was not independent as she had taken part in the meeting in mid-July 2025. She had also been involved, Mrs X said, in making decisions which Mrs X complained about.
63. I do not consider the Senior Leader’s participation in the meeting with Mrs X undermined her independence. She was not responsible for the Council’s failings complained about, such as a delay with Annual Review, failure to arrange alternative provision and special educational provision for Y and errors in the amendments of Y’s EHC Plan. The Council’s day-to-day functions are delivered by teams, of which the Senior Leader is not part of.
64. I do not find fault with the way the Council responded to Mrs X’s complaint.

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Decision

65. I find no fault. I cannot investigate issues which Mrs X appealed to the Special Educational Needs and Disabilities Tribunal and will not investigate anything linked to Mrs X’s appeal.

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Investigator's decision on behalf of the Ombudsman