Summary: Mrs B complained the Council failed to provide her son with education and special educational needs provision and failed to keep her up-to-date. The Council had made educational provision available but failed to keep Mrs B up-to-date and be clear about its position on the school assigned to her son. That caused Mrs B uncertainty and distress. An apology, payment to Mrs B and introduction of a process to track reviews of EHC Plans is satisfactory remedy.

The complaint

1. The complainant, Mrs B, complained the Council:
• failed to ensure her son received education from September 2023;
• failed to ensure her son received the provision in his education, health and care plan (EHC Plan) from September 2023; and
• failed to keep her up-to-date with what was happening.
2. Mrs B says the Council’s actions mean her son has missed out on education and it has impacted on her mental health.

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The Ombudsman’s role and powers

3. 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)
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
7. 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

8. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mrs B and the organisation 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

Section 19

10. The Education Act 1996 (Section 19) says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child's age, ability and aptitude, including any special needs.
11. 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)

Special educational needs

12. 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 council can do this.
13. Under section 42 of the Children and Families Act 2014 the council is responsible for making sure arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

The Special education needs code of practice (code of practice)

14. EHC Plans must be reviewed by the local authority as a minimum every 12 months.
15. The first review must be held within 12 months of the date when the EHC Plan was issued, and then within 12 months of any previous review, and the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC Plan or previous review).
16. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHC Plan as it is, amend it, or cease to maintain it, and notify the child’s parent or the young person and the school or other institution attended.
17. If the EHC Plan needs to be amended, the local authority should start the process of amendment without delay.
18. If the local authority decides to continue to make amendments, it must issue the amended EHC Plan as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.

What happened

19. Mrs B’s son has special educational needs and an EHC Plan which names School A. Due to some behavioural issues Mrs B’s son had stopped attending School A by the end of September 2023. The Council held an annual review of the EHC Plan in October 2023. At that meeting the Council agreed to consult additionally resourced provisions (ARP’s) but told Mrs B and School A it considered School A remained a suitable placement. The Council told School A it needed to put in place provision for Mrs B’s son.
20. The Council consulted an ARP. That school told the Council it did not consider it was a suitable placement for Mrs B’s son. By the end of January 2024 the Council had decided an ARP was not suitable for Mrs B’s son. There is no evidence the Council told Mrs B that.
21. Mrs B put in a complaint in October 2024. In that complaint Mrs B said her son had not received any education since September 2023.
22. The Council held an annual review of the EHC Plan on 7 October.
23. The Council wrote to Mrs B on 18 October and partially upheld her complaint. The Council accepted there had been limited communication since the October 2023 review and accepted it had not kept her up-to-date with action taken. The Council also accepted it had failed to complete the annual review process. The Council agreed to consider the case and write to Mrs B to confirm the Council’s final decision on education arrangements for her son and to issue a formal letter on the outcome of the annual review.
24. Council officers met with Mrs B and School A on 4 November. By that point School A had opened a therapeutic provision and said it could meet Mrs B’s son’s needs. The Council agreed. The meeting agreed School A would plan the transition for Mrs B’s son to get back into education.
25. Mrs B contacted the Council on 23 November to raise concerns about whether School A was suitable for her son. Mrs B chased the Council in January 2025 and said she wanted to appeal as she did not want her son to attend School A. The Council told Mrs B it considered School A remained a suitable setting. The Council agreed to consult specialist schools at Mrs B’s request. However, none of the schools consulted considered they could meet Mrs B’s son’s needs.
26. The Council held a meeting with School A on 17 January to discuss the placement. Mrs B attended the meeting. School A said it could meet needs and needed more support from parents to affirm routines and behaviour expectations.
27. Early in February Mrs B visited School A to look at the revised provision arranged. Mrs B agreed for her son to return to School A on a reduced timetable. That began on 24 February.
28. On 5 March the Council sent Mrs B a proposed amended EHC Plan which continued to name School A. Mrs B told the Council she did not want her son to attend School A. In response the Council reminded Mrs B School A was responsible for providing education until the Council could find an alternative school.
29. Mrs B’s son continued to attend School A until an incident in March 2025. Mrs B then removed her son from the school. The Council reiterated in April 2025 it considered School A remained a suitable placement.
30. On 7 May the Council issued a final EHC Plan naming School A. Although Mrs B said she intended to appeal she met with the school later in May and agreed for her son to attend on a part-time timetable. However, Mrs B’s son did not start attending School A as Mrs B moved out of the Council’s area in June 2025.

Analysis

31. Mrs B says the Council failed to ensure her son received education from September 2023 until she moved out of the Council’s area in June 2025. Mrs B says that means her son also missed out on special educational needs provision. Mrs B says the Council failed to keep her up-to-date with what was happening. The Council accepts its communications with Mrs B could have been better.
32. The evidence I have seen satisfies me the Council considered the assigned school, School A, a suitable placement for Mrs B’s son throughout. I am also satisfied the Council had named School A in the EHC Plan. So, from the Council’s point of view Mrs B’s son always had an educational placement available for him to access. The Council says it told Mrs B that at the annual review of the EHC Plan in October 2023. The Council says although it agreed to consult ARP schools it told Mrs B she needed to return her son to School A.
33. I am concerned the Council failed to write to Mrs B following the annual review to confirm whether it intended to make any changes to the EHC Plan. The Council should have confirmed its decision within four weeks of the meeting and failed to do so. Had the Council issued that letter it would likely have said, on the balance of probability, the Council considered School A remained an appropriate placement. If the Council had followed the right process and issued a final EHC Plan naming School A Mrs B would then have had an opportunity to appeal or, alternatively, return her son to School A. Failure to issue a decision following the October 2023 review is fault.
34. I am also concerned when the Council decided pursuing an ARP placement was no longer appropriate for Mrs B’s son in January 2024 it failed to write to her to tell her that. That was another missed opportunity to confirm the Council’s view that School A was a suitable placement and Mrs B needed to return her son to the school. That is also fault.
35. Mrs B says the Council was supposed to put in place on extra funding for School A to make provision for her son. I have found nothing in the documentary evidence to suggest this is what the Council said would happen. As the Council has pointed out, School A would have needed to apply for any extra funding and there is no evidence it did so. I therefore have no grounds to criticise the Council for this point.
36. I am concerned though there is no evidence the Council had any further detailed discussions about the placement at School A with Mrs B until a meeting on 4 November 2024. By that point the position at School A had changed as it had a therapeutic provision available which Mrs B’s son could access. I am satisfied at that point the Council made clear its view School A was an appropriate placement and that Mrs B’s son should attend. I am satisfied that led to the school drawing up a transition plan and he returned to the school in February 2025.
37. The evidence I have seen satisfies me Mrs B knew education provision at school was available to her son from February 2025. I therefore do not criticise the Council for any lack of education after February 2025 up until Mrs B moved areas. From the point at which the Council issued the final EHC Plan (7 May 2025) any lack of provision to Mrs B’s son is also outside the Ombudsman’s jurisdiction. That is because Mrs B had a right of appeal about the school the Council named in section I of the EHC Plan.
38. It is clear Mrs B’s son missed out on education between September 2023 and February 2025 though. What I have to consider is whether Mrs B’s son missed out on education during that period due to fault by the Council. The evidence I have seen satisfies me the Council considered School A an appropriate school for Mrs B’s son throughout the entire period. I do not have sufficient evidence though to show the Council made Mrs B aware of that view until November 2024.
39. Given Mrs B’s son was not attending school I am surprised neither Mrs B nor the school told the Council he was not attending School A between November 2023 and October 2024. While I consider the Council at fault for not making its position clear to Mrs B before November 2024 I have to consider whether that would have made any difference had the Council done so.
40. As Mrs B returned her son to School A when the Council made its position clear in November 2024 I consider it likely, on the balance of probability, if the Council had made its position clear earlier Mrs B would also have returned her son to School A. However, I cannot ignore the fact Mrs B only returned her son to School A for a matter of weeks before withdrawing him. It is possible Mrs B would have acted in the same way if the Council had made its position clear at the end of 2023 or early 2024. So, I could not say, on the balance of probability, Mrs B’s son missed out on education between September 2023 and February 2025 due to fault by the Council. I consider it is possible Mrs B’s son would have missed out on education during that period even if the Council had acted properly as Mrs B may have withdrawn her son after a matter of weeks as she did in 2025.
41. I therefore consider Mrs B’s injustice is limited to her frustration and uncertainty about whether the situation could have been different had the Council acted as it should have done. I also consider Mrs B missed out on an opportunity to appeal the Council’s decision that School A remained a suitable school as the Council failed to follow the review process properly. As remedy for that I recommended the Council apologise to Mrs B and pay her £600. That is to reflect her delayed appeal rights and uncertainty around her son’s schooling. The amount recommended is separate to the £525 the Council has offered to reflect the delays following the annual review. I further recommended the Council put in place a process for tracking annual reviews to ensure officers adhere to the timescales set out in the code of practice. The Council has agreed to my recommendations.

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Action

42. Within one month of my decision the Council should:
• apologise to Mrs B for the distress and uncertainty she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs B £600; and
• introduce a process to track reviews of EHC Plans to ensure the timescales set out in the code of practice are adhered to.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman