Summary: Miss X complained about delays by the Council in reviewing her child’s Education, Health and Care Plan and its failure to provide a suitable education for them when they could not attend a school. We found the Council was at fault for not completing the review on time and for its complaint handling, which caused injustice to Miss X and her child. However, we found there was no fault in how the Council considered its duty to secure alternative education provision for Miss X’s child. The Council has agreed to apologise to Miss X and her child to remedy their injustice and make changes to its service to prevent the same fault happening to others.

The complaint

1. Miss X complained the Council did not complete the review of her child, Y’s, Education Health and Care (EHC) Plan within the legal timeframes. She said it also failed to provide Y with a suitable education when they could no longer attend their education placement which caused Y’s mental and physical health to worsen. She said that it did not respond to her complaint about these matters and its communication with her was poor, which caused her frustration.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
4. 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)
5. 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.
6. 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 suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. 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.
8. 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)
9. 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

10. The Council had a reasonable opportunity to consider and respond to Miss X’s complaint, but it did not send a final response to Miss X, despite us asking it to. We therefore decided to investigate this complaint even though the Council did not send its final response to Miss X.
11. Mjss X complained Y stopped attending their education placement in December 2024, until March 2025 and the Council failed to secure both Y’s alternative education and special educational provision during this time.
12. I have not investigated if the Council failed to secure Y’s special educational provision in their EHC Plan during the period complained about. This is because Miss X complained to the Council about the school named in Y’s EHC Plan and said it was not suitable to meet Y’s needs or provide the support in Y’s EHC Plan. Miss X could have appealed to the Tribunal about these matters. This means I have not investigated how the Council secured Y’s special educational provision during this time, because this issue is too closely linked to a decision which could have been appealed to the Tribunal.
13. I have, however, investigated how the Council considered its duty to secure a suitable alternative education for Y during this time. This is because the issue of Y’s alternative education provision is separable from the matters that could have been appealed to the Tribunal.
14. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did.
15. On the broader point, we cannot always respond to complaints in the level of detail people might want. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.

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How I considered this complaint

16. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
17. Miss 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

Relevant law and guidance

EHC Plans and reviews

18. A child or young person with Special Educational Needs (SEN) 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.
19. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date, but a council can review the EHC Plan at any time if it agrees one is needed. The 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 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) 
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.

Alternative education provision

21. 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. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
22. 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

Education other than at school

23. If school or college is not appropriate for the child or young person with an EHC Plan (for either all or part of their education), the council can arrange for any special educational provision which the child or young person requires to be delivered somewhere other than in a school, college or early years setting. This is known as ‘education otherwise than at school’ (EOTAS). There is a right of appeal about any decision to name (or not name) EOTAS. 

The Council’s complaint policy

24. The Council’s complaint policy states it will respond to stage one complaints within 20 working days. If the complainant then goes on to make a stage two complaint, it will respond to the stage two complaint within another 20 working days.

What happened

25. In the academic year 2023/24 Y was on roll at a school (‘the School’) but not attending the School. Section F of Y’s EHC Plan explained the Council would provide the School with funding for alternative education provision, and the School would arrange this for Y. Y was attending an alternative education provision provider, which I will call ‘the Provision’, with the School’s permission.
26. In August 2024 Miss X asked the Council to name a new school in Y’s EHC Plan. She said the School could not meet Y’s needs or deliver the support in their EHC Plan. The Council considered Miss X’s request and decided it would not name a new school in Y’s EHC Plan.
27. In October 2024 Miss X complained to the Council about its decision not to name a new school in Y’s EHC Plan. She said Y struggled to attend the School and would also not engage with 1:1 tuition, either in-person or online, and so needed to attend an independent school instead. In the same month the Council held an interim review of Y’s EHC Plan.
28. In November 2024 Miss X and the Council attended mediation to try and agree the school to be named in Y’s EHC Plan. The Council did not change its mind. Miss X was given a mediation certificate which allowed her to appeal to the Tribunal about the Council’s decision.
29. In December 2024 the School held a meeting with Miss X and the Council. The School said, due to a policy change, it could no longer approve the Provision Y was attending and they would not be allowed to attend the Provision from January onwards. The School said it would work with Miss X to increase Y’s attendance at the School.
30. In December 2024 the Council emailed the School and the Provision to try and resolve the issues with Y’s alternative education provision. The School did not change its mind and continued to say it would not give permission for Y to attend the Provision after Christmas.
31. The Council then followed its process for when a child is not receiving a suitable education. It asked the School to refer Y’s case to a multi-agency panel, but the School refused to do this and so the Council did this instead in January 2025. The panel considered if it would agree to name a school Miss X asked for in Y’s EHC Plan. The panel agreed to name the school, but said if it did, Y would not be able to continue attending the Provision. Miss X then declined the Council’s offer to name the new school, because she felt it was important Y continued to attend the Provision, as that was the only education they would likely engage with.
32. The Council offered Miss X and Y other alternative provisions such as tuition and mentoring. Miss X declined the tuition as she said Y would not engage with this and the mentoring service declined the Council’s referral.
33. The Council then said it would instead start to look at securing an EOTAS package for Y and it would then remove Y from the School’s roll. This would mean Y could continue to attend the Provision without the School’s permission.
34. In February 2025 Miss X complained to us. She said the Council had not sent its final response to her complaint. We asked the Council to finish considering the complaint and respond to Miss X.
35. Y started their EOTAS package in early March 2025. This meant they were able to start attending the Provision again.
36. In April 2025 the Council sent Miss X a proposed amended EHC Plan for Y.
37. In August 2025 the Council had still not sent Miss X its final complaint response. We then decided to investigate the complaint.
38. The Council sent Y’s amended final EHC Plan in October 2025.

Analysis

EHC Plan review

39. The EHC Plan review meeting was held in October 2024, and the Council sent Y’s amended final EHC Plan in October 2025. However, the Council should have sent Y’s amended final EHC Plan within 12 weeks of the review meeting. Therefore, this was a delay of around nine months.
40. This delay caused injustice to Miss X and Y because it left them with uncertainty about what would be in Y’s EHC Plan and what support Y would be entitled to and it delayed Miss X’s right to appeal to the Tribunal if she disagreed with the EHC Plan.
41. However, this injustice was limited because Y’s EOTAS package started in March 2025, despite the Council not yet issuing their amended final EHC Plan which named the EOTAS package. This meant Y did not need to wait for the final amended EHC Plan to begin their EOTAS. The delay from when the EHC Plan should have been issued to Y starting their EOTAS was around two months which did not cause a significant injustice.
42. When we find fault, as well as a personal remedy for the affected person, we will always consider whether the organisation needs to improve how it works to prevent the same problem happening again to others. We have recommended changes to improve how the Council meets its legal deadlines when carrying out EHC Plan reviews.

Alternative education provision

43. The Council told us it became aware that Y was not attending their alternative education provision in January 2025. However, a Council officer attended a meeting with the School in December 2024, in which the School said it would no longer allow Y to attend the Provision after the Christmas holidays. Therefore, the Council became aware of issues with Y’s education in December 2024.
44. In December 2024 the Council emailed the School to ask it to agree for Y to continue attending their alternative education provision after Christmas, but the School would not agree to this. Emails show the Council then started to try and arrange alternative education provision for Y in early January 2025.
45. The Council’s case notes show it responded quickly to the School’s notice and tried to work with the School in December 2024 to allow Y to continue attending the Provision. When the School would not change its mind, the Council started exploring different alternative education provision options for Y in early January 2025, which was not a significant delay from when it became aware Y would no longer be able to attend the Provision.
46. The Council explored finding a new school, and providing mentoring and tuition for Y. Miss X declined the offer of a new school and tutoring, and the mentoring provider did not accept the Council’s referral. However, the evidence shows the Council acted without significant delay in exploring temporary alternative education provision options for Y whilst trying to secure a long-term EOTAS package for them.
47. Miss X said the Council offered a different school place and tuition even though it knew these would not be suitable for Y’s needs. On balance, the Council made offers of provision that were appropriate because Miss X had previously asked it for these. Once it knew these options would no longer be suitable, the Council focused on securing an EOTAS package for Y, as requested by Miss X.
48. Emails between the Council and the Provision show Y attended the Provision at least once in January 2025. The Council arranged for Y to start attending the Provision again in March 2025. This meant the period Y could not attend the Provision was likely less than two months in total.
49. The Council acted without much delay to secure Y’s EOTAS package which enabled them to return to the Provision, which was Miss X and Y’s preferred choice, after less than two months of non-attendance. It explored temporary alternatives for Y whilst it did this. Therefore, there was no significant fault by the Council on this point.

Complaint handling

50. The Council failed to send Miss X a final response to her complaint.
51. This caused Miss X injustice because it caused her uncertainty and a loss of opportunity to have her complaint about Y’s education resolved.
52. As explained in our guidance note Principles of Good Administrative Practice operating an effective complaints procedure, which includes offering a fair and appropriate remedy when a complaint is upheld, is good practice for Councils. As the Council failed to complete its consideration of Miss X’s complaint, we had to investigate before the Council had taken the opportunity to put things right.
53. In response to one of our previous investigations, the Council told us it was recruiting more staff which it believed would improve its complaints handling. It is likely the Council’s actions will increase its capacity to investigate and respond to complaints, so I have not made any recommendations on the point, but we will monitor the effectiveness of the Council’s actions through our casework.

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Action

54. Within one month of our decision, the Council will apologise to Miss X and Y for the uncertainty and frustration caused to them by the delay in Y’s EHC Plan review and its poor complaints handling. This apology should be in accordance with our guidance for making an effective apology.
55. Within three months of our decision, the Council will review how it completes reviews of EHC Plans and identify any improvements it needs to make to that process to ensure it is still able to complete reviews within the legal time frames when a parent or young person makes a request for EOTAS during the EHC Plan review process. It will provide us with a copy of a timebound action place to make any improvements it has identified.
56. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman