Summary: Mrs X complained the Council failed to update her child, Y’s, Education, Health and Care Plan and incorrectly told her it could not fund Y’s school place. We find the Council at fault for failing to complete an annual review in June 2022 and keep records of its decision making. This caused Mrs X uncertainty and frustrated her right to appeal. The Council has agreed to apologise and make a symbolic payment to remedy the injustice caused.

The complaint

1. Mrs X complained the Council failed to update her child, Y’s, Education, Health and Care Plan following an annual review in June 2022 and it used an incorrect Plan for the next few years. Mrs X also complained the Council incorrectly told her it could not fund the private school place which was named in Y’s Education, Health and Care Plan. Mrs X told us these issues have caused considerable stress for the family. Mrs X also told us her son has not attended school since March 2025, he did not complete his GCSE’s, and the use of an outdated Plan impacted the school consultations which took place. Mrs X would like the Council to apologise, finalise an Education, Health and Care Plan which is reflective of Y’s current needs, provide compensation for the impact of the faults and ensure it has a workforce that is reflective of the diversity in Wiltshire.

Back to top

The Ombudsman’s role and powers

2. 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)
3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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)
5. 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)
6. 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 have and have not investigated

7. Mrs X complained to us in June 2025, which means anything earlier than June 2024 is a late complaint.
8. The decision for Y to attend School B was made prior to June 2024, however, Mrs X has provided evidence she was not aware of any potential fault regarding the placement fees for School B until December 2024. The Council’s actions in completing the annual review in 2022 is relevant to its actions regarding the placement fees. Therefore, I do not consider this part of Mrs X’s complaint to be late. I have investigated the Council’s actions in completing the annual review and determining it was not required to fund the placement for School B.
9. The Council provided evidence it completed annual reviews and issued Mrs X with final Education, Health and Care Plans and letters explaining the right to appeal these Plans in October 2024 and March 2025. Based on the information provided by the Council, there is not enough evidence of fault in the Council’s actions in completing annual reviews in 2024 and 2025 to justify completing an investigation into this matter.
10. I have also investigated the Council’s actions in providing Y’s special educational provision between March and October 2025, when he was unable to attend school.

Back to top

How I considered this complaint

11. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Legal and administrative background

Education, health and care plans

13. 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. 
14. 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)  
15. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Annual review

16. 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) 
17. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
18. 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.
19. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Naming a school or institution

20. In accordance with section 38 of the Children and Families Act 2014, parents have a right to request the Council name any of the following types of nursery, school or college in an EHC Plan;
• A maintained school or nursery (mainstream or special)
• An Academy (mainstream or special)
• An institution in the Further Education sector
• A non-maintained special school
• A section 41 school.
21. If a parent requests an independent school which is not on the above list, the Council does not have to name the requested setting if it determines there is a suitable setting in the list which could meet the child or young person’s needs.

What happened

22. The following is a summary of key information. It is not intended to be a detailed chronology.
23. Y was first issued with an EHC Plan in 2017. From September 2017 Y’s parents arranged for him to attend an independent school, School A.
24. An annual review meeting took place in June 2022, during which it was noted that Y had completed entrance exams and been offered an art scholarship at School B, another independent school.
25. In response to our enquiries the Council was unable to provide any information or correspondence which relates to the Council’s agreement to name School B in Y’s EHC Plan. The Council has not provided evidence it completed the June 2022 annual review, issued Mrs X’s appeal rights or determined an alternative suitable setting for Y between September 2022 and October 2024.
26. In March 2025, the Council received an email from School B explaining that Y’s placement at the school had ended. The school told the Council it would be a private exam centre for Y to sit his GCSE’s.
27. The Council contacted Mrs X to discuss steps for securing suitable educational provision for Y.
28. The Council secured a package of tuition for Y which started at the end of April. The Council also completed school consultations and named Mrs X’s preferred setting from October 2025.

My findings

29. The Council failed to complete the June 2022 annual review and record its decision making when determining it was not required to provide funding for Y’s school placement between June 2022 and October 2024. Although I am satisfied with the Council’s determination that School B was parental preference and Y’s attendance was arranged without Council support, the Council’s failure to complete the annual review and record its decision making is fault which caused Mrs X uncertainty and frustrated Mrs X’s right to appeal.
30. There is no fault in the steps taken by the Council to secure educational provision once it was made aware Y’s placement at school B had ended.

Back to top

Action

31. Within one month of the final decision the Council will:
• Apologise to Y and Mrs X for the injustice caused by the faults identified. 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.
• Make a symbolic payment of £500 in recognition of the uncertainty and frustrated appeal rights caused by the Council’s failure to complete the June 2022 annual review and record its decision making when determining it was not required to fund Y’s school placement.
32. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman