Summary: Mrs P complained the Council failed to secure the special educational provision in her daughter Q’s Education, Health and Care Plan, failed to provide full time alternative educational provision, did not meet the legal timescale to review the plan, and named a school in the plan that did not want Q to attend. We find the Council at fault for failing to secure some of Q’s special educational provision and missing the deadlines to review the plan which caused missed educational provision and distress. The Council has agreed to make a symbolic payment and apologise.

The complaint

1. Mrs P complains about how the Council handled her daughter Q’s special educational needs. She complains in particular the Council:
1. Failed to secure the special educational provision in Q’s Education, Health and Care Plan when it did not find her a placement in a special school.
2. Failed to arrange full time alternative educational provision for Q.
3. Failed to comply with the legal timescales to complete an annual review and issue an amended EHC Plan.
4. Named a school in Q’s EHC Plan that did not want to offer her a placement.
2. Mrs P says the Council’s failings meant Q missed the educational provision and support she was entitled to, and caused her significant distress in the form of emotional damage and isolation from other children.

Back to top

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. 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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
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 Tribunal in this decision statement.
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
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)

Back to top

What I have and have not investigated

10. I have investigated parts a), b) and c) from 26 October 2024 until 4 December 2025.
11. There were Tribunal proceedings that ended on 26 October 2024. I have not investigated matters before that date because doing so would overlap with the role of the Tribunal.
12. The Council issued an amended final EHC Plan on 4 December 2025. I have not investigated after that date because I have decided it was reasonable for Mrs P to have used her right of appeal to the Tribunal. She could have asked it to specify the special educational provision and name an available special school placement. I therefore cannot investigate after that date because doing so would overlap with the role of the Tribunal.
13. I have not investigated part d) of Mrs P’s complaint. This is because the decision to name the school was made during an appeal to, and specified in a consent order made by, the Tribunal. I therefore cannot investigate it because I cannot overlap with the role of the Tribunal.

Back to top

How I considered this complaint

14. I considered evidence provided by Mrs P and the Council as well as relevant law, policy and guidance.
15. Mrs P and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
16. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Law and Guidance

EHC Plans and special educational provision

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 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 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). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Reviewing EHC Plans

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 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 then take place. Following the review meeting the council must issue a decision to either 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) 

Appeal rights

21. There is a right of appeal to the Tribunal against matters including the special educational provision specified, the school or placement named, or that no school or other placement is specified, in an EHC Plan.
22. 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). The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
23. 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.
24. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
25. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
26. 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). 

Section 19 duty to arrange alternative educational provision

27. Section 19 of the Education Act 1996 says that the council must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
28. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
29. We publish good practice guidance on how we expect councils to fulfil their responsibilities to identify and arrange alternative educational provision: Supporting children out of school (October 2025)
30. Our guidance says that councils should:

• consider all the reasons for a child’s absence from school, and make a written evidence-based decision about whether it will arrange alternative education provision;
• communicate this decision as a matter of good practice to parents and where it decides not to arrange alternative education tell parents the expectations about school attendance, and the potential consequences for continued absences;
• ensure the provision meets the individual needs of the child where it decides to arrange alternative education and explain its reasons for providing a part-time education if it decides the child cannot cope with full time provision;
• keep all cases of part-time education under review with a view to increasing when the child is able;
• work with parents and schools to draw up plans to reintegrate children to their normal educational setting as soon as possible, reviewing and amending plans as necessary; and
• ensure effective channels of communication between parents, internal teams, and external bodies (such as schools, the NHS) so that issues are dealt with promptly by the right people, and that any complaints are identified and responded to under the relevant policy.

31. The DfE guidance (Arranging education for children who cannot attend school because of health needs) states the law does not define full-time education but children with health needs should have provision, where possible, which is equivalent to the education they would receive in a mainstream school.
32. It states if, for example, a child receives one-to-one tuition, the hours of face-to-face provision could be fewer as the education may be more intensive. Where full-time education would not be in a child’s best interests for reasons relating to their physical or mental health, local authorities must arrange part-time education on whatever basis they consider to be in the child's best interests.

What happened

Background

33. Q has special educational needs. She has an EHC Plan that was first issued in December 2023. She was on the roll of a mainstream primary school. I shall refer to this as her home school. Q had not been able to attend her home school for some time. Her non-attendance was linked to her special educational needs.
34. The Council established it had a section 19 duty to arrange alternative educational provision. It was in the form of face to face tuition. It arranged this in coordination with Q’s home school. The face to face tuition continued uninterrupted into the period I investigated.
35. In early 2024 Mrs P appealed to the Tribunal. She wanted the Council to name a special school in Q’s EHC Plan.

Investigation period

36. In October 2024 the Tribunal proceedings ended. The Tribunal issued a consent order that the Council name a specific special school in the EHC Plan. I shall refer to this as Special School A.
37. The Council issued an amended EHC Plan in early November. It named School A in Section I.
38. Later in November Mrs P visited School A. Following the visit School A told Mrs P and the Council it would no longer offer Q a place. Mrs P told the Council she wanted Y to attend School A.
39. The Council said it contacted School A in December and said it was still named due to the Tribunal’s order.
40. The Council should have completed an annual review of Q’s EHC Plan by mid-December 2024. It did not do so.
41. In February 2025 the Council arranged a resolution meeting with Mrs P and School A. The purpose was to resolve issues with the aim of Q attending.
42. The resolution meeting happened at the beginning of March. The outcome was an agreement Q would have a three month transition period to School A from May to July, and then attend from September.
43. Mrs P visited School A again later in March. Mrs P raised concerns about the visit. The Council said it spoke to School A and Mrs P who agreed to continue with a slow approach and relationship building.
44. In early April Mrs P told the Council she had decided she would not allow Q to start at School A. She explained the reasons. She also complained the annual review was six months late. She complained that meant she could not appeal the naming of School A in the plan.
45. Later in April the Council told Mrs P it would seek a different special school placement for Q. It said it would arrange an annual review to amend the EHC Plan.
46. In May the Council made arrangements for an annual review meeting in June. It sent invitations and requested reports.
47. The Council consulted two different special schools at the beginning of June. Neither could offer Q an immediate place.
48. The Council held the annual review meeting on 9 June. Attendees included Mrs P, staff from Q’s home school and her alternative provision tutor.
49. On 13 June the Council notified Mrs P it intended to amend Q’s EHC Plan.
50. The Council consulted two more special schools after the annual review meeting. Neither could offer Q a place.
51. Mrs P complained the Council had not consulted enough schools.
52. The Council consulted two more special schools in early July. Neither could offer Q a place.
53. Mrs P complained the lack of a school place was having a significant negative impact on Q. She said it was because she had no contact with other children.
54. Later in July the Council commissioned additional alternative educational provision for Q. It would take place at a special educational facility with other children. It started at the beginning of the new term in September.
55. On 8 August the Council should have issued Q’s amended final EHC Plan. It did not meet the deadline.
56. At the end of September the Council issued a draft amended EHC Plan. It again contacted one of the schools it had consulted earlier. It was Mrs P’s preferred special school. I shall refer to this as School B. It could offer Q a place to start in September 2026.
57. The Council issued Q’s amended final EHC Plan on 4 December. It named School B in Section I. The plan said it would come into effect on 1 September 2026.

Analysis and findings

58. I address parts a), b) and c) of the complaint in order below

a) Failed to secure the special educational provision in Q’s EHC Plan

59. The Council had a duty to secure the special educational provision in Section F in Q's EHC Plan. That duty started as soon as it issued the plan in early November 2024.
60. I find the Council initially had a reasonable expectation Q would attend School A.
61. However, the Council was notified at the end of November that School A had retracted its offer of a place. I find it understood Q would be unable to attend School A and receive all the special educational provision she was entitled to from that date. I have therefore considered the Council’s actions to secure special educational provision for Q after November 2024.
62. I find, on the balance of probabilities, Q did not receive all of her special educational provision.
63. I acknowledge the Council had arranged alternative educational provision in the form of face to face tuition in that period. The reports from the provider show the tuition was tailored to Q’s special educational needs. However, I have decided the special educational provision in her EHC Plan was written with the expectation it would be delivered in a special school setting. It also specified contact with peers. The tuition did not take place in a school setting or include contact with peers. I therefore find, on the balance of probabilities the Council secured most, but not all, of Q’s special educational provision. This was fault.
64. I find the Council’s fault was service failure, not maladministration. This is described in paragraph 5. This is because I have decided the evidence shows School A’s decision to retract its offer of a place was the reason Q did not receive all the special educational provision. I have decided the Council was not to blame for that decision.
65. I find the fault lasted until September 2025. This is because I have decided the Council took appropriate steps to secure a special school placement and special educational provision for Q from September. It did so when it arranged a resolution meeting in March. Mrs P and School A agreed, during the meeting, a transition period from May to July with the intention of Q attending from September.
66. I acknowledge Mrs P decided in April that she would not allow Q to attend School A. I find any absence of special educational provision after September was a consequence of that decision. I do not find the Council at fault for Mrs P’s decision. It therefore does not change my finding the Council took adequate steps to secure Q’s special educational provision from September.
67. I also acknowledge Mrs P’s complaints the Council did not do enough to consult other special schools, and continued to delay her right of appeal.
68. I find the Council’s actions to consult six different special schools was a proportionate and adequate response to Mrs P’s decision in April. I also find there is not enough evidence to say, even on balance of probabilities, that a completed annual review and right of appeal would have resulted in a different special school placement being available in September. Therefore, these factors do not change my finding the Council’s fault ended in September.
69. I find the fault caused injustice in the form of missed special educational provision for Q between November 2024 and September 2025. It also caused consequential distress and frustration for her family.

b) Failed to arrange full time alternative educational provision for Q

70. I have decided the evidence shows the Council arranged alternative educational provision based on Q’s individual needs.
71. It did so by arranging the provision in coordination with Mrs P and Q’s home school. It received and considered progress reports from the providers. It arranged additional provision in response to Mrs P’s concerns about the negative impact of a lack of peers.
72. I acknowledge Mrs P complained the Council did not arrange full time education for Q. I find the face to face tuition provision and subsequent transfer to the specialist educational facility were, on the balance of probabilities, more intensive when compared with general full time mainstream education. I therefore find, on the balance of probabilities, the Council arranged it in Q’s best interests.
73. For the reasons above I find the Council arranged alternative educational provision for Q broadly in line with the relevant guidance and the Ombudsman’s expectations. I therefore find no fault in the way the Council handled its section 19 duties.
74. I have decided the Council could have improved its record keeping and communication. It could have clearly recorded and explained to Mrs P why it considered part time education was in Q’s best interests. However, when considering the Council’s actions on balance, I do not find its failure to do so amounted to fault in these circumstances.

Failed to comply with the legal timescales to complete an annual review and issue an amended EHC Plan

75. The Council should have completed an annual review of Q’s EHC Plan by issuing a decision notice in December 2024. This is because it was 12 months after it issued the first EHC Plan. It did not do so until 13 June 2025. This was fault.
76. The Council decided to amend Q’s EHC Plan on 13 June. That means it should have issued a final amended EHC Plan within eight weeks, by 8 August. It did not do so until 4 December. This was fault.
77. I have decided there is not enough evidence to say the Council would have decided to amend Q’s EHC Plan, or that Mrs P would have used a right of appeal, had it completed the annual review on time.
78. However, I find its delay in completing the annual review, and subsequent delay in issuing the amended final EHC Plan, caused significant injustice in the form of frustration, uncertainty, and delayed appeal rights.

Remedies for the injustice

79. I have considered the extent of the injustice caused by the missed special educational provision on Q, and consequential injustice to her family. It lasted for approximately two and a half school terms, between November 2024 and September 2025. I have decided to recommend a symbolic payment of £300 per term to remedy the injustice, which is £750 in total.
80. I have considered the injustice caused by the delayed annual review and amended EHC Plan processes. I find the faults caused significant uncertainty and delayed appeal rights. I have decided the injustice warrants a further symbolic payment of £350 to remedy the injustice.
81. I note the Council has already apologised for the delayed annual review process. It meets our expectations for how organisations should apologise.
82. I have decided not to make service improvement recommendations. This is because the Council has current organisation led service improvements in progress. I have decided recommendations in this case would create unnecessary duplication.

Back to top

Action

83. Within four weeks of the date of my final decision the Council will:
1. Make a total symbolic payment of £1,100 for the injustice of missed special educational provision, uncertainty, frustration and delayed appeal rights.
2. Apologise for the injustice caused by the failure to secure all of Q’s special educational provision.
84. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

85. For the reasons laid out in my analysis and findings I find fault in the Council’s failure to secure all of Q’s special educational provision and delays to the annual review of her EHC Plan causing injustice. The Council has agreed actions to remedy the injustice and I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman