Summary: Mr X complained about the Council’s failure to provide his daughter, Y, with suitable education and support for her special educational needs and related matters. We found the Council to be at fault. It failed to ensure Y had access to appropriate support when she was unable to attend school. To remedy Mr X’s injustice, the Council has agreed to apologise and increase a symbolic payment already offered during its internal complaint handling that was made to acknowledge the time Y spend without an education or specialist support. There was also fault with the annual review process and there was poor communication with Mr X. The Council will make a further payment to Mr X to acknowledge his frustration time and trouble.

The complaint

1. Mr X complains about the Council’s failure to provide his daughter, Y, with suitable education and support for her special educational needs (SEN) from July 2024. Specifically, he says the Council:

• failed to adhere to statutory timeframes in respect of the Education, Health and Care Plan process;
• failed to ensure alternative provision was available to Y when she was unable to attend school for reasons related to her SEN; and
• failed to communicate with him properly.

2. Although the Council has already upheld part of his complaint, and more recently provided appropriate support, Mr X says he should not have had to fight so hard to get what Y was entitled to much sooner. He also feels the Council’s remedy is inadequate. His wife had to give up work and has suffered significant distress, time and trouble supporting Y whilst she was denied full-time education.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 SEND Tribunal in this decision statement.
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health, and Care Plan.
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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

10. I have not investigated what happened since Mr X lodged his appeal with the SEND Tribunal in January 2025. However, during the course of this investigation, Mr X withdrew his appeal because the Council agreed to provide a bespoke package of support.
11. Although Paragraphs 23 to 25 (below) apply to this time period, a council may still offer a remedy to acknowledge any loss of provision. The Council has chosen to do so in this case.
12. I have referred to this later in this decision statement.

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How I considered this complaint

13. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
14. Mr 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

Legal and administrative background

Education Health and Care Plans

15. A child with special educational needs may have an Education Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
16. The EHC Plan is set out in sections which include:

• 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 

Reviewing EHC Plans

17. 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 take place.

18. When changes are suggested to the draft EHC Plan and agreed by the Council, it should amend the draft plan and issue the final EHC Plan as quickly as possible, and within eight weeks of the date the Council send the proposed amendments to the parents.
19. Where a Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC Plan.
20. In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

Early reviews

21. A request can be made for an early review (sometimes referred to as an emergency or interim review) of an EHC Plan if there is a change of circumstances, such as a change in need or the current EHC Plan is no longer meeting needs.

Failure to secure provision

22. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act 2014). The courts have said this duty to arrange provision is owed personally to the child and is non-delegable.

SEND Tribunal and appeal rights

23. There is a right of appeal to the SEND Tribunal against the special educational provision specified, the school or placement or that no school or other placement is specified.
24. 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 SEND 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)
25. 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.

Alternative provision

26. 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.
27. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

What happened

28. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
29. Y is of secondary school age with SEN. She has a diagnosis of ADHD and has an EHC Plan. In 2024, she attended School D.
30. Mr X says Y’s mental health declined in Year 7, and despite being supported by alternative provision, arranged by School D, she stopped both attending both settings in July 2024.
31. This prompted School D to hold an emergency annual review in July 2024. Mr X says he was also unaware this was a formal meeting and was not sent the usual review paperwork in advance. Nor did her receive any follow up information until four months later.
32. He says School D failed to make any alternative arrangements for the start of the autumn term. Mr X says he asked School D to arrange animal-based therapy, but this was initially refused. He also asked the Council to intervene. But he says it failed to contact him or respond to his letter or phone calls during the start of the autumn term 2024.
33. This prompted Mr X to lodge a formal complaint in October 2024. He explained the devastating impact Y’s lack of specialist support and education was having on both her and the wider family. Her mental health was getting worse, and she was no longer able to participate in everyday activities due to her severe anxiety and was demonstrating self-harming behaviours. He also complained about delays and mismanagement of the EHC Plan review process and poor communication from the Council.
34. In its stage one response, the Council accepted there was fault with annual review process. It apologised and offered Mr X £200. It did not uphold his complaints about poor communication or Y's lack of education and support for Y’s SEN.
35. Mr X expressed his dissatisfaction with this outcome. He reminded the Council Y remained without a school place or support, suggesting this was evidence of ongoing failure that should be acknowledged.
36. In November 2024, the Council notified Mr X of its intention to amend the EHC Plan following the review held in July.
37. Another annual review was held in December 2024. This led to an amended final EHC Plan being issued in January 2025. This named School D at Section I, despite it saying it was unable to meet Y’s needs. Mr X immediately lodged an appeal with the SEND Tribunal.
38. Mr X withdraw this appeal in October 2025, when the Council agreed to fund a bespoke package of support.

The Council’s position

39. In January 2025, the Council responded to Mr X’s stage two complaint. The Council:

• explained School D had implemented several strategies and interventions to support Y’s access to education. It remained School D’s duty to deliver provision in the EHC Plan. This included an exceptional referral for animal-based alterative provision for one day per week and counselling. Specialist online support had been offered and refused by Mr X;
• explained referrals had been made to other support services;
• accepted School D failed to investigate alternative provision options for the start of the autumn term;
• accepted there had been issues with delay and communication, specifically around alternative school places; and
• accepted the annual process has not been correctly followed both before and after the review in July 2024.

40. The Council repeated its previous offer of £200 as a symbolic payment to acknowledge fault with the annual review process. It also offered £1500 for missed provision over the autumn term 2024 (calculated at a rate of £100 per week).
41. In response to the Ombudsman’s enquiries, the Council offered to make an additional payment to acknowledge previously unremedied loss of provision. This was:

• an additional £200 to acknowledge the last two weeks of the summer term 2024 when Y was without any support of education; and
• £2500 to acknowledge the limited alternative provision available to Y between January and July 2025 (£100 per week for 25 weeks).

Analysis

I will consider Mr X’s separate area of complaint below.

Education, Health and Care Plan process

42. The emergency annual review was held in July 2024, prompted by Y’s withdrawal from alternative provision. I have identified several faults with the way this was managed.

• Mr X was not told the meeting was an annual review.
• Mr X was not provided with essential paperwork in advance as required by statutory guidance.
• The Council failed to notify Mr X of its intention to amend Y’s EHC Plan until November 2024, approximately two months late. This delay contributed to further delay in issuing a final amended EHC Plan.

43. I am satisfied these faults caused Mr X significant distress and frustration. It also delayed Mr X appeal to the SEND Tribunal by several months, and potentially impacted on an earlier resolution of Y’s lack of education and support. Whilst the Council has already acknowledged and apologised for these faults and offered a symbolic financial payment, I do not consider this sufficient to remedy this injustice. This is reflected in my recommendation below.

Alternative provision

44. The case records show Y was unable to attend the school named in her EHC Plan or provided with adequate alternative provision from mid July 2024 to January 2025, when the Council issued a final amended EHC Plan. During this time she had minimal education and support for her SEN. The fact she missed out on this support meant an already vulnerable young person was further disadvantaged.
45. Although I accept this was, in part, due to the actions of School D, for the reasons set out in paragraph 22, the Council remains responsible for ensuring support set out in the EHC Plan is provided.
46. I welcome the Council’s acceptance of fault, and its acknowledgement that this caused a significant injustice to Y and her family. I consider the symbolic payment of £2500 offered in response to Mr X’s complaint to be appropriate and in line with the Ombudsman’s published Guidance on Remedies
47. To the Council’s credit, at the invitation of the Ombudsman, it has offered to make a further payment to Mr X to acknowledge the lengthy period of time Y remained out of education between January and July 2025, as well as a short period of time at the end of the summer term 2024. Although I was unable to investigate this latter period of time for the reasons explained, I consider this an appropriate resolution to remedy the outstanding injustice to Mr X.

Poor communication

48. Mr X says the Council failed to communicate with him about the difficulties he faced with School D and other options that may be available for Y. The case records I have seen support his position for the following reasons.

• In its stage one complaint response, the Council confirmed it had decided in July 2024 (following internal discussions in May 2024) that had that Y’s needs could be met in a special school and it was consulting with such a school, that was deemed to be the nearest suitable setting for Y. Although I have been provided with a copy of a letter to Mr X about this, he says he did not receive it. It is clear to me from subsequent contact between Mr X and the Council that he was unaware of the Council’s position about the type of school until it was referred to in the Council’s stage one response. Regardless of the reason why Mr X did not receive this specific letter, I would have expected some discussion to have taken place with his about this matter, especially as Mr X had asked the Council to consult with a different school at the July 2024 review.
• The Council did not inform Mr X of the outcome of its consultation with the special school.
• Mr X contacted the Council on several occasions in September and October 2024, explaining the urgency of Y’s situation and School D’s failure to offer alternative provision. Mr X did not receive any meaningful response until the Council’s stage one complaint response in mid-November 2024.

Based on this, I find there was fault with the Council’s communication with Mr X. This caused significant distress, frustration, time and trouble that requires a remedy.

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Agreed action

49. Within four weeks from the date of my final decision, the Council has agreed to take the following action.
1. Apologise in writing to Mr X.
2. Pay Mr X £1700. This is a symbolic payment to reflect Y’s missed education and SEN support from mid July 2024 to January 2025 (term time only).
3. Pay Mr X £2500. This is a symbolic payment to reflect Y’s missed education and SEN support between January and July 2025.
4. Pay Mr X £500. This is a symbolic payment to acknowledge the distress and frustration caused by the Council’s handling of the annual review process and poor communication
50. For the avoidance of doubt, any payments already made to Mr X should be deducted from these recommended payments.
51. In response to Mr X’s complaint, the Council has provided a detailed explanation about the strategies it has put in place to address the more systemic areas of fault I have identified. For this reason, I have not made any additional service improvement recommendations to the Council.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I find fault causing injustice. The Council has agreed to take action to remedy the personal injustice to Mr X. On this basis, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman