Summary: The Council was at fault for failing to properly consider if it needed to amend the special educational provision in Mrs X’s child’s Education, Health and Care Plan when they struggled to engage with the education on offer at their school. This caused Mrs X avoidable frustration and uncertainty. To remedy Mrs X’s injustice, the Council will apologise and make a symbolic payment.

The complaint

1. Mrs X complained the Council failed to find her child, W, a suitable school with resourced provision. She said this meant W had to remain at an unsuitable school, which meant they missed out on education. Mrs X said this caused W harm and caused the family stress and financial loss.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), section 34(B))
5. 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

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs 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

Law and guidance

Education, Health and Care Plans

8. 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 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 

9. 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)  
10. 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 annual 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 complete when the council issues its decision to amend, maintain or cease to maintain the EHC Plan.
11. 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). The council also asks the young person or child’s parent to confirm their preferred school placement. Case law sets out the council should send the non-amended Plan and accompanying notice 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.
12. Once the council completes any amendments by issuing a final amended EHC Plan, the child’s parent or young person can appeal its contents to the SEND Tribunal. Matters which can be appealed include the school or type of school named in section I of the Plan.

What happened

13. The Council issued W an EHC Plan in 2023. The special educational provision in the Plan included:
• School staff would implement speech and language therapy (SALT) strategies across the school day. Staff would also give W 15-minute sessions five times per week;
• One-to-one sessions for 30-45 minutes per week to develop social skills;
• Use of strategies to help W understand other people’s thoughts and feelings and to have positive interactions with other students;
• Three sessions of ‘pre-teaching’ per week, for 15-20 minutes, covering literacy, numeracy and wider curriculum topics to be covered that week;
• Use of breaks during the day and access to a safe, quiet space;
• Use of strategies and prompts to help W engage with and benefit from learning;
• 15-minute weekly sessions with a member of staff to help W understand themselves as well as regular check-ins to help W identify and communicate their emotions; and
• Activities and strategies to develop W’s dexterity, improve their reading and writing and manage their sensory needs.
14. In early June 2024, W’s school (school A), held an annual review meeting on the Council’s behalf. The meeting heard Mrs X felt W needed a school with resourced provision. These are mainstream schools with units for children with special educational needs, where they can receive specialised support and education.
15. The meeting records noted W was struggling with the demands of the full mainstream curriculum despite support from school A. The school’s comments indicated it felt it could not meet W’s increased need for support, but there was no evidence to suggest W was not currently accessing a full education, or that they were not receiving the full special educational provision in their EHC Plan.
16. In August 2024, the Council agreed W needed a school with resourced provision. The Council consulted with four schools in late August and a further school in mid-September.
17. The Council decided it would amend W’s EHC Plan following the annual review meeting and issued a draft amended Plan to W’s parents. In September, Mrs X and W’s father responded to the draft to say W was ‘losing touch’ with the curriculum and was isolated learning at a desk in learning support, instead of the classroom. Learning support provides additional support to children who need more help to become independent learners.
18. The Council issued W’s final amended EHC Plan in early October 2024. It named school A but said the Council had agreed W should move to a school with resourced provision. Mrs X did not appeal. The special educational provision in the Plan was largely unchanged except it now said teachers should implement occupational therapy (OT) strategies throughout the school day. This included:
• A quiet space to work;
• A programme to develop W’s fine motor strength and stamina, three times per day;
• Exercises to improve W’s core strength, three times per day;
• Access to ear plugs and a gym ball; and
• Handwriting warmups before writing.
19. By mid-October, the Council had heard none of the five schools it had consulted could offer W a place. Around the same time, it asked Mrs X if she would be willing for it to consult with schools located further away but did not receive a response.
20. School A intended to hold another annual review meeting on behalf of the Council in early November, but it was postponed to late-November. The Council attended the meeting. Records of the meeting show that school A said:
• W’s attendance so far was above 90%;
• W was placed in learning support. School A also put other support in place, including access to a therapy dog and ways to minimise the stress of being in a large school;
• W was following a mainstream timetable in terms of subjects. The teaching was tailored to W’s level of understanding;
• W spent time with other children in learning support and in a quiet environment with their friends from outside learning support;
• School A had been able to provide the SALT, OT, social skills, pre-teaching, English and literacy support in section F of their EHC Plan. W also had support to help with their emotions;
• W was nonetheless struggling to access the curriculum and school A felt their social, emotional and mental wellbeing was diminishing as they stayed in learning support. Their ability to engage in education was also deteriorating; and
• School A had arranged for W to attend an animal therapy provider every Friday, which was working well and provided W with further social interactions. The school felt W should be able to attend two days per week but needed additional Council funding for this.
21. At the meeting, Mrs X said:
• She unhappy W was only receiving English and maths teaching; and
• She wanted the Council to review W’s EHC Plan if they were diagnosed with autism following an upcoming assessment. Mrs X said she did not want W to move to a new school only to move again if the autism assessment showed that school was unsuitable.
22. Mrs X told the Council W had been diagnosed with autism in late February 2025 and in mid-March, she told the Council W was not receiving the special educational provision in their EHC Plan. Mrs X did not specify what provision was missing.
23. School A held a new annual review meeting in late-March. Records of the meeting show:
• W’s attendance at the school was still good;
• W continued to attend learning support with a small group of peers instead of going to classes. They had English lessons and occasionally maths each week. W struggled to go to maths because it was held in the main part of the school. W went to animal therapy one day per week with a small group of other children;
• W had interventions in maths, English and science. These are short programmes of teaching designed to reduce gaps in a pupil’s knowledge;
• W had OT, weekly social skills sessions, pre-teaching of the curriculum, SALT, access to sensory equipment and help with their emotions; and
• Mrs X was unhappy W had been in learning support for six months and had limited access to the curriculum. She said W needed more support in school to engage with the curriculum and manage their needs.
24. Following the annual review, the Council issued its decision to amend W’s EHC Plan in mid-April and asked Mrs X to name her preferred placement. The Council consulted with more schools by late April and issued W’s amended EHC Plan at the end of the month. It continued to name school A.
25. The Council told Mrs X that it had named school A in the meantime, while it looked for a school with resourced provision. It said she could appeal that decision to the SEND Tribunal. Mrs X did not appeal.

Findings

What I have and have not investigated

26. The period Mrs X complained about begins in June 2024. 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. This means our investigations normally end on the date the organisation issues its final response to a person’s complaint. For Mrs X’s complaint, this was mid-July 2025. (Local Government Act 1974, section 26(5), section 34(B)6)
27. The courts have established that if someone has appealed to the SEND 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. 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. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. It ends when the next appealable decision is made. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
28. Mrs X had a right of appeal to the Tribunal to challenge the Council’s decision to name school A in W’s October 2024 EHC Plan. It was not reasonable for her to have appealed that Plan because at that point, the Council had recently agreed W needed a resourced provision school and issued some consultations.
29. By the time the Council issued W’s next EHC Plan naming school A at the end of April 2025, Mrs X was unhappy with its efforts to find W another school. At that point, it was reasonable for her to have appealed to the Tribunal to change the school or type of school in W’s EHC Plan. Because of this, I cannot investigate Mrs X’s complaint about W’s education or the efforts the Council went to in finding W a new school from the end of April 2025 to mid-July 2025. Mrs X is entitled to make a new complaint to the Council about events from mid-July 2025 onwards and to complain to the Ombudsman if she remains unhappy.
30. Section 19 of the Education Act 1996 says that a council must arrange suitable alternative educational provision outside of school when it finds that a child would not receive a suitable full-time education because of a permanent exclusion, an illness, or for any other reason. It is widely accepted, including in government guidance, that the duty applies when a child is not attending school full-time. However, it is not clear whether the wording of section 19 means the duty also applies when a child is in school full-time but not receiving the full curriculum, as in W’s case. The Ombudsman makes findings on maladministration and service failure. We cannot make definitive judgements on how to interpret legislation. Whether or not section 19 can apply to children in W’s circumstances is not something the Ombudsman can definitively decide; it is for the courts to consider. Investigation cannot achieve Mrs X’s desired outcome; for the Ombudsman to conclude the Council owed W the duty to arrange alternative provision. Therefore, I have not investigated the matter.

Search for a new school

31. After the Council decided W needed a school with resourced provision, it acted without delay to consult with the five schools. The Council did not take action between mid-October and late-November, but this was not fault. The gap in action occurred for valid reasons:
• Schools were closed for half-term;
• It was waiting for a response from Mrs X about whether she agreed to it consulting schools located further away from home; and
• It was waiting for the postponed annual review to be held. The annual review would have provided updated information for the Council’s decisions about what schools might be suitable for W.
32. The Council was not at fault in not consulting with other schools between late-November 2024 and mid-March 2025. In November, Mrs X had said she wanted to wait until W had been assessed for autism and if they were diagnosed, she wanted to review their EHC Plan before deciding on a new school. The Council respected Mrs X’s decision.
33. Following W’s diagnosis and the subsequent review meeting in late March, the Council invited Mrs X to submit her preferred schools, in accordance with the annual review process. This was during the school holidays and the Council consulted with more schools in late April, within one week of school’s reopening. The Council did not delay consulting with schools after W’s diagnosis, so it was not at fault.

Annual reviews

34. The purpose of an annual review is to decide whether a child’s special educational provision meets their needs and allows them to access a suitable education. Following W’s annual review meeting in June 2024, the Council issued W’s draft amended EHC Plan. In response to that draft, Mrs X told the Council for the first time that while W was in school full-time, they were not receiving a full education. This suggested their special educational provision may not have been suitable. The Council subsequently issued W’s amended Plan, which was its decision on what special educational provision W needed, a decision the Ombudsman cannot question.
35. However, the Council did not issue Y’s amended EHC Plan until October 2024 which was 18 weeks after the annual review meeting. This was a delay of six weeks and was fault. It caused Mrs X avoidable frustration as she waited for the outcome of the review and amendments. Taking into account school holidays, the delay meant W began receiving the OT in their amended EHC Plan four weeks after they should have.
36. At the November 2024 annual review meeting, the Council heard again that although W was attending school full-time, they could not engage in education fully. There is no evidence the Council considered whether W’s issues accessing education indicated their special educational provision was not suitable. The Council’s failure to consider this issue was fault. Specifically, the Council failed to consider:
• Whether the increased support school A had put in place was sufficient to allow them to access a suitable education;
• Whether W was accessing the full curriculum, given Mrs X and school A gave different accounts; and
• Whether W needed another day at animal therapy, funded by the Council.
37. Following the meeting, the Council failed to issue a decision on whether to amend, maintain or cease W’s EHC Plan, which was also fault. The faults in paragraphs 36 and 37 caused Mrs X avoidable frustration and uncertainty about whether, had the Council not been at fault, it would have amended the Plan to include provision which could have helped W engage more with education while it looked for another school.
38. School A held another annual review on the Council’s behalf in late March 2025, after which the Council issued W’s amended final EHC Plan. It did so within six weeks, which was well within the 12-week timescale. The Council was not at fault in how long it took to do the annual review and EHC amendments.
39. I have not considered if the Council was at fault in how it decided whether the special educational provision in W’s EHC Plan should be increased or amended during the annual review because the end result of its consideration was the amended Plan, which Mrs X could have appealed to the SEND Tribunal. An appeal would have determined whether the provision was sufficient to meet W’s needs.

Special educational provision

40. Mrs X told the Ombudsman W did not receive the special educational provision in their EHC Plan during the period I have investigated. However, while councils owe the duty to secure the special educational provision in a child’s EHC Plan, we accept it is not practical for them 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 expect councils to check provision is in place through the annual review process and to act promptly when they become aware a child’s provision is not in place.
41. Much of the special educational provision in W’s 2023 and October 2024 EHC Plans was to be delivered throughout the day, in lessons and breaktimes. This was still possible even when W moved to learning support and the animal therapy provider. Although Mrs X raised concerns about whether W was accessing the full curriculum, I have seen no evidence that the Council was told that W was not receiving the full special educational provision in their EHC Plans between June 2024 and February 2025.
42. By mid-March 2025, Mrs X told the Council that W was not receiving their special educational provision, but she did not specify what provision was being missed. W’s March 2025 annual review meeting was held shortly after, which was an appropriate way for the Council to confirm if W was missing some special educational provision. The evidence from the meeting indicated school A was delivering W’s provision, so the Council was not at fault.

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Action

43. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mrs X for the uncertainty and frustration she experienced because of its delay issuing W’s EHC Plan after the June 2024 annual review and its failure to properly consider if it needed to amend the special educational provision in W’s EHC Plan at the November 2024 annual review.
2. Pay Mrs X £500 to recognise that injustice and the impact of the four weeks of lost OT provision on W.
44. The Council will provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman