Summary: Mrs X complained the Council delayed completing the steps following annual reviews, wrongly tried to end her daughter’s alternative provision without discussion, tried to force her daughter into an unsuitable education setting, delayed consulting her chosen school and contacted her at inappropriate times. The Council delayed following an annual review, failed to keep Mrs X up-to-date with what was happening, delayed consulting her chosen school and contacted her at inappropriate times. That caused Mrs X and her daughter distress and uncertainty. An apology, payment to Mrs X, a process for managing annual reviews and guidance for officers is satisfactory remedy.

The complaint

1. The complainant, Mrs X, complained the Council:
• delayed completing the steps it should have followed following an annual review of her daughter’s education, health and care plan (EHC Plan) in March 2024;
• delayed completing the steps it should have followed following an annual review of the EHC Plan in September 2024;
• wrongly tried to end her daughter’s alternative provision without discussion;
• consulted schools which were not suitable for her daughter;
• tried to force her daughter into an education setting that was not right for her;
• delayed consulting her parental choice of school; and
• regularly contacted her late on a Friday to tell her about decisions when she could not speak to officers until the following week.
2. Mrs X says the Council’s actions have caused her, her daughter and her family stress, worry and concern. Mrs X says the Council’s actions have had a negative impact on her daughter’s and her own mental health.

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The Ombudsman’s role and powers

3. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. 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)
6. 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 X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mrs X 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

Special educational needs

10. A child or young person with special educational needs may have an EHC Plan. This sets out the child's needs and arrangements for meeting them.
11. Local authorities (councils) have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)

The special educational and disability needs code of practice

12. The child’s parent or the young person has the right to request a particular school, college or other institution of certain types to be named in their EHC plan. That includes independent schools or independent specialist colleges (where they have been approved for this purpose by the Secretary of State and published in a list available to all parents and young people – section 41 of the Children and Families Act 2014).
13. If a child’s parent or a young person makes a request for a particular nursery, school or post-16 institution the local authority must comply with that preference and name the school or college in the EHC Plan unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources
14. The local authority must consult the governing body, principal or proprietor of the school or college concerned and consider their comments very carefully before deciding whether to name it in the child or young person’s EHC Plan, sending the school or college a copy of the draft plan.
15. The child’s parent or the young person may make representations for places in schools without section 41 status and the local authority must consider their request. The local authority is not under the same conditional duty to name the provider but must have regard to the general principle in section 9 of the Education Act 1996 that children should be educated in accordance with their parents’ wishes, so long as this is compatible with the provision of efficient instruction and training and does not mean unreasonable public expenditure. The local authority should be satisfied the institution would admit the child or young person before naming it in a plan since these providers are not subject to the duty to admit a child or young person even if named in their plan.
16. EHC Plans must be reviewed by the local authority as a minimum every 12 months.
17. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person. If the 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 X’s daughter was receiving some alternative provision which her assigned school had put in place for her. I will refer to that school as school A.
20. School A held an annual review in March 2024. When the Council considered the paperwork from school A in May 2024 it had some concerns about the paperwork provided and the provision school A had arranged. The Council told school A the paperwork may not be fit for purpose and it may need to hold another annual review.
21. School A put in place a formal intervention plan and shared updates with the Council.
22. Mrs X contacted the Council on 7 August. Mrs X said her daughter could not attend school because of the school trauma she had experienced and her complex needs. Mrs X asked the Council to look at other ways to support her daughter rather than forcing attendance at a formal education setting. Mrs X explained the alternative provision school A had put into place was her daughter’s lifeline. The Council noted that but explained the alternative provision in place was not an education setting. The Council said it would hold an annual review on 18 September.
23. Mrs X raised concerns about that because she pointed out an annual review had taken place in March. The Council told Mrs X the March 2024 meeting had not been processed as an annual review and apologised if nobody had told Mrs X about the concerns with the paperwork.
24. School A gave the Council six weeks notice on Mrs X’s daughter’s placement on 13 September.
25. An annual review meeting took place on 18 September.
26. On 25 September Mrs X asked the Council to consult an independent school, school B, for her daughter to start in September 2025. The Council said the priority was to identify a suitable education for Mrs X’s daughter for the academic year 2024/25.
27. On 26 September the Council sent Mrs X a letter confirming its decision to amend her daughter’s EHC Plan.
28. Mrs X contacted the Council on 27 September to ask it to consult school B as her daughter fit the criteria from September 2025. The Council agreed to refer the case to its placement and resources panel.
29. In October Mrs X told the Council she and her daughter had visited a new alternative provision which her daughter was keen to engage with. The Council explained if Mrs X wanted the placement and resource panel to consider the new provider it would need to defer the case to a later panel as the deadline for putting in information had passed.
30. On 11 October the Council’s placement and resources panel considered the request for education other than at school and for the alternative provision already in place. The panel agreed to fund the alternative provision package for the existing provider at 10 hours per week with an added six hours per week from a second provider. The panel noted this would apply for the autumn term 2024/25 and would be reviewed. The Council told Mrs X about the panel’s decision on 15 October.
31. On 16 October Mrs X again asked the Council to consult school B. The Council explained it would need approval to do that as school B was not section 41 approved. The Council said it would refer the case to its next panel meeting. The Council later told Mrs X the panel would also review the existing alternative provision package.
32. On 15 November the placement and resources panel agreed to continue with the existing alternative provision package for the rest of the autumn term. The panel did not agree to consult school B. The Council told Mrs X about the outcome of that meeting at 5pm on Friday 22 November.
33. The placement and resources panel considered the case again on 13 December. The panel agreed to continue with the existing alternative provision package until February half term. The Council told Mrs X about the outcome of the panel meeting later that day. The Council told Mrs X the panel had not agreed to consult school B as it did not consider that would be an efficient use of the Council’s resources.
34. In January 2025 the Council told Mrs X about another school, school C, which it had consulted in December. The Council told Mrs X school C wanted to invite Mrs X’s daughter for an assessment visit. Mrs X’s representative raised concerns about the Council consulting school C without speaking to Mrs X first.
35. On 10 February Mrs X’s daughter met with a potential alternative provider. Following that Mrs X asked the Council why it could not continue the existing alternative provision over the longer term as it was the only provision that had worked for her daughter. The Council explained it needed to explore other options which would give Mrs X’s daughter recognised qualifications in an area she was interested in. The Council explained the alternative provision Mrs X’s daughter had visited in February was like one of the providers already in place and therefore that would stop but the second provider could continue for a short time to help with the transition.
36. In February Mrs X reiterated to the Council that her daughter wanted to attend school B. Mrs X asked the Council to consult school B. Mrs X made clear her daughter did not consider school C suitable and would not visit it.
37. On 28 February the placement and resources panel met and decided it would be an inefficient use of public resources to arrange a placement at school B. The panel decided to reduce one of the alternative provisions in place to one day per week from 24 March before it would end on 23 May as another provider was to begin. The second provider in place would be increased at the same time until the end of the academic year to support the transition. The Council told Mrs X about the outcome of that meeting at 5:07pm on 6 March. Mrs X raised concerns about the lateness of the email and the decision reached. Mrs X explained the impact the decision had on her daughter.
38. Later in March the new alternative provider offered Mrs X’s daughter a place on a City and Guilds course. Mrs X told the Council her daughter had agreed to try it. That alternative provider later stopped operating and the placement could not go ahead. The Council said it would look for an alternative.
39. Mrs X put in a complaint. When responding to that complaint the Council accepted it had delayed following the annual review. The Council offered Mrs X £200.
40. On 2 April the Council issued a final EHC Plan.
41. In April Mrs X asked the Council to consult school B as she understood it was now a section 41 approved setting. Mrs X also asked for a new case officer and said she did not consider the other new provisions the Council had raised suitable for her daughter.
42. The Council met with Mrs X in May 2025 as she had asked for her complaint to go to the next stage. When responding to that complaint the Council agreed to extend the period for the alternative provision it had previously said would end in May. That would now stop at the end of the summer term.
43. In July the placement and resources panel considered Mrs X’s daughter’s case. The panel did not agree to fund the proposed new alternative provision. Instead the panel agreed to continue one of the alternative provisions already in place for the autumn term. The panel also said the Council needed to explore options for Mrs X’s daughter to access functional skills in maths and english. The Council told Mrs X about the outcome of that panel meeting on 31 July.
44. Mrs X raised concerns about the panel’s decision and asked for a meeting. Mrs X then appealed the EHC Plan issued in April.
45. The Council consulted school B on 2 September. School B said it considered itself a suitable placement for Mrs X’s daughter but did not have any spaces. The Council told Mrs X and explained why it could not fund the alternative provider which had finished at the end of July. The Council asked Mrs X about other alternative provision it had identified. Mrs X told the Council she did not consider those options suitable. Mrs X said she wanted education other than at school until her daughter could start at school B.

Analysis

46. I am exercising the Ombudsman’s discretion to investigate what has happened since the annual review in March 2024. That is because it makes sense to consider the entire period.
47. Mrs X says the Council failed to follow the statutory process following the annual review in March 2024. Mrs X says the Council did not issue an amendment notice and failed to tell Mrs X it had any concerns about the annual review until August 2024.
48. The documentary evidence I have seen satisfies me the Council did not write to Mrs X following the annual review to say whether it intended to amend the EHC Plan. I am concerned that although the Council identified issues with the annual review paperwork in May 2024 there is no evidence it shared those concerns with Mrs X at the time. I am also concerned that despite the Council identifying the need for another annual review in May 2024 it did not hold another one until September 2024. Failure to tell Mrs X about the issues with the first annual review and delay holding the second annual review is fault. I consider that caused Mrs X distress and led to her feeling the Council was not keeping her up-to-date with what was happening.
49. Mrs X says the Council failed to follow the statutory process following the annual review in September 2024. I am satisfied following that annual review the Council acted quickly to tell Mrs X it intended to amend the EHC Plan. The Council accepts though it then delayed amending the EHC Plan and in issuing a final EHC Plan. Those delays are fault. I am satisfied that led Mrs X to have to go to time and trouble to pursue the Council and caused her distress. I am also satisfied the delay issuing the final EHC Plan delayed Mrs X’s appeal right, although I note she did not appeal the final EHC Plan until four months after the Council issued it.
50. Mrs X says the Council repeatedly tried to end the alternative provision in place for her daughter without discussion and consulted schools which were not suitable. Mrs X is particularly concerned because she had told the Council repeatedly the alternative provision in place was the only education provision her daughter had engaged with. I understand Mrs X’s concern in those circumstances. However, I am also satisfied the Council had made clear it would need to keep under review the alternative provision package it had put in place for Mrs X’s daughter. I therefore cannot criticise it for reviewing the alternative provision package.
51. I consider it possible though the issues with the alternative provision package could have been identified, discussed and resolved earlier if the Council had not delayed holding the second annual review in 2024 and in issuing the final EHC Plan. Had the Council complied with the timescales it is possible the plans for Mrs X’s daughter’s education in 2025 would have been resolved earlier. I therefore consider the Council’s delays have also impacted on the length of time the alternative provision package has been in place. I am satisfied that has made the situation for Mrs X’s daughter more difficult as she has had a further extended period with the alternative provision she is comfortable with.
52. I am also concerned to note when the Council consulted school C in December 2024 it did not tell Mrs X it had done so. That is also fault and is unlikely to have reassured Mrs X the Council was involving her in its plans for her daughter’s education, particularly as Mrs X did not consider that type of school suitable for her daughter.
53. Mrs X says the Council tried to force her daughter into an education setting that was not right for her without discussing that with her. I understand Mrs X had concerns about school A before the placement broke down in 2024. As I understand it though, that placement was secured because of a tribunal decision. The Ombudsman does not have jurisdiction to consider a complaint about matters decided by tribunal. I therefore cannot comment on it.
54. I have seen nothing in the documentary evidence to suggest the Council tried to force Mrs X’s daughter to attend another school after the placement at school A broke down. I recognise the Council discussed Mrs X’s daughter returning to school A in August 2024. I am satisfied though the Council held an annual review following that to discuss Mrs X’s daughter’s education. I therefore could not say the Council tried to force Mrs X’s daughter to return to school A. The evidence after that review satisfies me the Council extended the alternative provision in place until it identified a suitable placement from September 2025. I therefore have no grounds to criticise the Council.
55. Mrs X says the Council delayed consulting school B for a September 2025 start. Mrs X says despite asking the Council to consult school B repeatedly it failed to do so and by the time it consulted school B did not have any places available.
56. I do not criticise the Council for concentrating on identifying a suitable placement for Mrs X’s daughter for the 2024/25 academic year in 2024, rather than consulting schools for a September 2025 start. I note though when the Council referred the case to its placement and resources panel it did not initially consult school B because it was not registered as a section 41 school. While I understand the Council’s concern the code of practice is clear the Council should nevertheless consider the request to consult a school that does not have section 41 status if the parent requests it. Failure to do that is fault.
57. I can also see though the Council had concerns about whether a placement at school B would be an efficient use of the Council’s resources. That is an issue the Council’s placement and resources panel continually raised when asked to consider consulting school B.
58. However, I do not have any documentation to show what evidence the panel relied on in reaching the decision school B was not an efficient use of the Council’s resources. None of the reports for the placement and resource panel refer to the costs of school B compared to the cost of alternatives. In those circumstances I am not satisfied the Council properly considered school B before deciding not to consult. That is fault. I am also concerned once school B gained section 41 status the Council delayed consulting it. That is also fault.
59. I could not reach a safe conclusion about whether Mrs X’s daughter would have secured a placement at school B had the Council consulted it earlier. That would be dependent on school B having a place available for Mrs X’s daughter and the Council accepting it was a suitable placement and a good use of Council resources. I therefore consider Mrs X’s injustice is limited to her frustration and uncertainty about whether the outcome for her daughter would have been different.
60. Mrs X says Council officers regularly contacted her late on a Friday afternoon to tell her about decisions when it knew she would not be able to speak to anybody until the following week. Mrs X says this has caused her anxiety.
61. The documentary evidence shows Council officers sent Mrs X details of panel decisions about the provision for her daughter late in the day on a Thursday or Friday. The Council says it did that so it could share decision straight after the panel outcome. However, the documentary evidence shows a gap between most panel meetings taking place and the Council telling Mrs X about the panel’s decisions. In those circumstances I would have expected the Council to consider whether it was appropriate to contact Mrs X about the decisions late on a Thursday or Friday. Failure to do that is fault, particularly as Mrs X had raised concerns about the Council contacting her late in the day when she could not speak to officers.
62. I am satisfied though this is a matter the Council has already rectified through the parent carer forum. I therefore do not make any further recommendation for remedy for this specific part of the complaint, other than an apology for Mrs X.
63. I have set out in this statement various areas where I consider the Council at fault. I am satisfied those failures have led to Mrs X and her daughter experiencing distress and frustration, delayed Mrs X’s appeal rights and led to Mrs X and her daughter experiencing uncertainty about whether the situation could have been different. As remedy for that I recommended the Council apologise to Mrs X and her daughter and pay Mrs X £600. The Council has agreed to my recommendation.
64. I also recommended the Council introduce a process for managing annual reviews to ensure once a review is completed the steps are monitored to ensure compliance with the timescales set out in the statutory guidance. I further recommended the Council provide guidance to its placement and resource panel so members are aware of the need to ensure decisions are properly evidenced. In addition, I recommended the Council provide guidance to officers in its SEN department about what the code of practice says in relation to consulting independent schools that do not have section 41 status. The Council has agreed to my recommendations.

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Action

65. Within one month of my decision the Council should:
• apologise to Mrs X and her daughter for the distress, uncertainty and frustration 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 X £600;
• provide guidance to its placement and resource panel so members are aware of the need to ensure decisions are properly evidenced;
• provide guidance to officers in its SEN department about what the code of practice says in relation to consulting independent schools that do not have section 41 status.
66. Within three months of my decision the Council should introduce a process for managing annual reviews to ensure once a review is completed the steps are monitored to ensure compliance with the timescales set out in the statutory guidance.
67. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. 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