Summary: Ms C complained about the Council’s handling of her son’s (X) education when he stopped attending his school placement, and delays in the EHC plan process. We found fault by the Council for causing significant delays in the statutory process and its failure to ensure X received an appropriate education in 2024. The Council will apologise and make payment to acknowledge the impact its faults had on Ms C and X.

The complaint

1. The complainant, Ms C, complained about the Council’s handling of her son’s (X) education. She said it:

• placed X at a school which could not meet his needs and it did not tell her;
• failed to ensure X received education and provision set out in his EHC plan including 1:1 support, a routine, and consistency. He stopped attending school in early 2024 and received very limited education;
• agreed X needed a special school placement in late 2024, but caused further delays as the Council’s panel needed to consider the decision;
• provided conflicting information from different caseworkers and failed to respond to her concerns.

2. Ms C said, as a result, she experienced distress and uncertainty, and X had a loss of education.

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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 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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)
8. 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.
9. 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)

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What I have and have not investigated

10. Ms C’s complaint relates to the Council’s handling of X’s education from Autumn 2023 to December 2024. Parts of her complaint is late as matters occurred more than 12 months before she brought her concerns to our attention, and I have not seen good reasons for exercising my discretion.
11. I will therefore consider Ms C’s complaint about the Council’s handling of X’s education, EHC plan process, and communication with her from January to December 2024.
12. I have not investigated:
• X education prior to January 2024, or events which occurred when X was attending his school placement. This is because such concerns are late, and concerns about events in the school should be brought to the school’s attention through its complaints process;
• Ms C’s disagreement about the suitability of X’s school placement or her request for a different placement. This is because we have previously considered this and found this was for the SEND Tribunal to consider; and
• any new concerns Ms C may have about X’s education from January 2025 onwards, as this was not part of her complaint to the Council or it did not have the opportunity to consider this through its complaints process.

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How I considered this complaint

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

Relevant law

Education, Health and Care Plans

16. 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.
17. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s needs, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan. 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 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).
19. The Council has a statutory duty under s.14 Education Act 1996 to provide sufficient school places for its area and under s.27 of The Act to keep provision for children with special educational needs under review and consider the extent to which local provision meets the needs of children with special educational needs and disabilities.
20. 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 twelve months of the first EHC Plan and within twelve 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)
21. 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.
22. An EHC Plan may need to be amended outside of an annual review if there are specific changes to a child’s circumstances. Where there are significant changes to a child’s needs a Council may consider it appropriate to carry out a reassessment. (The Code 9.186-9.193)
23. Parents have a right to request specific types of school are named in an EHC Plan (s.38(3) of the Act). This includes requests for special schools.
24. Councils must consult with schools before deciding to name a school, but the decision to name a school is for the Council and it can decide to list a school if it does not agree with a school’s views about being able to meet a child’s needs.

Alternative provision

25. 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. (Education Act 1996, section 19). We refer to this as Section 19 or alternative education provision.
26. This applies to all children of compulsory school age living in the local council area, including those enrolled at school. (Statutory guidance ‘Alternative Provision’ January 2013)
27. The education provided by the council must be full-time unless the council decides full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
28. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
29. We recommended councils should:
• consider the individual circumstances of each case. They should be aware they may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
30. In addition, the courts have considered the circumstances where the section 19 duty applies. Caselaw has found a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child “reasonably practicable” for it to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (see R (on the application of DS) v Wolverhampton City Council 2017)
31. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure they fulfil their duties.

What happened

32. Ms C’s son (X) has been diagnosed with health conditions which impacts his ability to receive and engage with his education.
33. In 2023 X had an EHC Plan which set out his needs and the special educational needs provision he should receive. It listed a mainstream school (School Y) which he should attend.
34. X attended School Y in the Autumn term of the 2023-2024 school year. However, his attendance reduced and he increasingly lacked engagement or absconded from lessons in school.
35. Reviews of X’s EHC Plan took place in Summer 2023 and an interim review in late 2023. The Council issued a draft amended EHC Plan in January 2024. This shows:
• Ms C believed School Y could not meet X’s needs and he needed a specialist school placement. She shared her parental preference with the Council;
• School Y found X was at risk of school refusal and it had put as much support in place as it could to support him; and
• the Council found School Y was suitable and it could support X with his education. School Y remained listed in the draft EHC plan, which also referred to some 1:1 provision could be removed as X could access the provision without this support.
36. In January 2024 X stopped attending School Y completely. School Y put some tutoring in place for X, which was two hours per week.
37. The Council subsequently spoke with Ms C and agreed for its Special Educational Needs Panel (the Panel) to consider X’s need for a different type of school placement. The Panel found X was on roll with School Y, but he could not cope in a mainstream environment despite the efforts the school had made. Consultation with mainstream schools with specialist units (Focus Provision) should therefore be completed.
38. Ms C continued to disagree with the Council and its panel’s view. She said X needed a specialist school. She also raised concerns directly to School Y. The Council spoke with Ms C.
39. By Summer 2024 the Council had consulted with the available Focus Provision schools and Ms C’s preferred specialist school. All said they could not meet X’s needs. Ms C shared a letter from School Y which supported X’s need for more specialist school placement. The Council spoke with Ms C.
40. In Autumn 2024 the Council consulted with a special school (School Z). It spoke with Ms C and explained its previous consultations. and signposted her to the Special Educational Needs and Disabilities Information, Advice and Support Service (SENDIASS) for independent advice.
41. In October 2024 Ms C told the Council School Z had confirmed it could support X. She asked the Council to contact the school to arrange for X to attend.
42. In December 2024 School Z told the Council it was yet to receive confirmation X would be placed with the school. Ms C called the Council several times, and the Council subsequently confirmed X should be placed at School Z.
43. X started School Z in early 2025.

Ms C’s complaint

44. In December 2024 Ms C complained to the Council about its handling of X’s education. Below are the key points of her complaint and the Council’s response:
• placed X at a school which could not meet his needs and it did not tell her;

The Council said X was initially placed on roll with School Y, but it had since been unable to meet his needs and the Council had later decided he needed a specialist provision.

• failed to ensure X did receive education and provision set out in his EHC plan including 1:1 support, a routine, and consistency. He stopped attending school in early 2024 and received very limited education;

The Council acknowledged the difficulties X had experienced in his school.

• agreed X needed a special school placement in late 2024, but caused further delays as the Council’s panel needed to consider the decision; and

The Council apologised the decision around School Z had to be considered by its panel and the delay this caused for the placement to start. This had since been confirmed, which resolves her complaint.

• provided conflicting information from different caseworkers and failed to respond to her concerns.

The Council acknowledged Ms C felt there had been inconsistencies in the information it had provided and there had been changes in officer’s allocated to X.

45. Ms C escalated the complaint to the Council as she felt it had not properly considered the impact its actions had on her and X. The Council found her complaint had been investigated and explained its Special Educational Needs and Disabilities Team had been under significant pressure over the period of her complaint. However, it has a SEND Action plan to secure the long-term effectiveness of its service. This includes identifying children with special educational needs, better partnerships with families, co-production of services, and enhancing workforce capacity and expertise.
46. Ms C asked the Ombudsman to consider her complaint.
47. In response to my enquiries the Council confirmed:
• it issued X’s final amended EHC plan in October 2025 which lists School Z. It acknowledged delays in the process and explained its officers at the time were prioritising live assessments and it was aware of some delays in annual reviews due to this;
• its view it was for School Y to provide X with an education from January to December 2024 when he was on roll with the school. This could be on site or through alternative provision; and
• three officers had been allocated to X’s case during 2024, however, Ms C was informed about the changes. It acknowledged some communication with families could be improved and it was actively working on this.

Analysis and findings

Annual reviews and EHC Plan process

48. I have considered the Council’s handling of the EHC Plan process for X. I have identified faults by the Council.
• Two annual reviews took place in 2023. However, no annual review took place in 2024. This was fault as such reviews must take place at least every 12 months.
• Following the 2023 annual reviews, a draft EHC Plan was issued for X in January 2024. However, no final amended EHC plan was issued within the statutory timescales. It was not until October 2025 this was completed. This was fault.
• Some provision for X was changed or reduced in School Y without a final amended EHC plan having been issued, and she alerted the Council to this. This was fault as any changes must first take place when the final plan has been issued and appeal rights have been shared with Ms C.
• The Council’s panel agreed in early 2024 the mainstream school placement, School Y, could not meet X’s needs and Focus Provision should be consulted. While the Council made attempts to find a suitable school placement, this was not successful. This was therefore a service failure, which meant X did not have an allocated school placement which could meet his needs. This failure stopped when X was on roll with School Z in early 2025.
49. I am satisfied Ms C experienced distress and uncertainty as a result of the Council’s faults and service failure. She was also denied her appeal rights to the SEND Tribunal for a significant period of 19 months. This was from when X’s final EHC Plan should have been issued following the draft amended EHC Plan in early Spring 2024. Including any subsequent amendments to X’s EHC Plan.

X’s education and alternative provision

50. I have considered the education X received from January 2024 when he was on roll with School Y.
51. The Council was informed and aware X stopped attending School Y in January 2024. At that time, the Council had a duty to consider whether:
• it should consider action against Ms C for X’s lack of attendance.
• School Y’s education offer and limited alternative provision for X was appropriate; or
• it should put in place alternative provision to ensure X received a full-time education, or as much education as he could manage.
52. I found the Council at fault for how it considered its alternative provision duty towards X. This is because it is the Council’s duty to ensure X received an education when he stopped attending School Y, even though he was on roll with the school.
53. I was also conscious School Y considered formal action against Ms C for X’s lack of attendance but decided not to take any action. The Council’s panel found X needed a different placement and consultations took place, and the School put in place a very limited offer of tuition. However, this was not a full-time education, nor was there any evidence the Council kept this under review or took any action when Ms C repeatedly raised concerns X was at home and not getting an education.
54. While I cannot say what provision X may have been able to engage with, nor how much provision. I am satisfied he experienced a loss of education from February 2024 until December 2024 as a result of the Council’s fault.

Communication with Ms C and complaints handling

55. The Council has acknowledged some of its communication with families and Ms C could be improved.
56. While the evidence shows the Council did communicate with Ms C which included emails and several phone calls from various officers in 2024. I agree with the Council acceptance this fell below the standard which should be expected. I therefore found the Council at fault, which caused her some additional unnecessary distress and uncertainty.
57. However, I found the lack of clarity Ms C experienced were primarily due to the Council’s poor and delayed EHC Plan process and inability to find X a suitable school placement.
58. There was no delay in the Council’s complaints handling. However, its responses failed to address key points of Ms C’s complaint, as it believed the matter had since been resolved with X’s placement at School Z. This was therefore a missed opportunity to resolve her concerns without the Ombudsman’s involvement, in particular around X’s loss of education.

Service improvements

59. The Council had an action plan in place to address issues identified within its Special Educational Needs and Disability service, which were similar to those experienced by Ms C. It was working on steps to improve its service during and after the period of Ms C’s complaint and has since recruited and trained staff.
60. I have therefore not made any service improvements on this complaint.

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Action

61. To remedy the injustice the Council caused to Ms C and X, the Council should, within one month of the final decision:
1. apologise in writing to Ms C to acknowledge the injustice its faults caused her and X;

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.

2. pay Ms C £4,250 to acknowledge the loss of education and special educational needs provision X experienced between early 2024 to December 2024; and
3. pay Ms C a symbolic payment of £350 to acknowledge the distress and uncertainty she experienced as a result of the delayed EHC plan process, delayed appeal rights, and poor communication.

In total the Council should pay Ms C £4,600.

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

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Decision

63. I have completed my investigation with a finding of fault by the Council, which caused Ms C and X an injustice. The Council will apologise and make payment to acknowledge the impact it caused them.

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Investigator's decision on behalf of the Ombudsman