Summary: We uphold Mrs X’s complaint, finding the Council delayed in issuing her daughter with an updated Education, Health and Care Plan and in answering her complaint. These faults caused injustice as avoidable distress, time and trouble. The Council has accepted these findings. At the end of this statement, we set out the action it has agreed to take to remedy Mrs X’s injustice.

The complaint

1. Mrs X complained about the actions of the Council, following a review of her daughter’s Education, Health and Care (EHC) Plan held in September 2024. Mrs X said the Council:

• delayed in issuing her daughter ‘Y’, with an amended EHC Plan following the review;
• ignored evidence including that contained in an educational psychologist’s report that Y’s primary school was no longer suitable for her. It continued to name the primary school (School A) on Y’s EHC Plan having chosen not to consult an independent school (School B) preferred by Mrs X;
• failed to ensure that Y received education in line with her Plan while at School A;
• failed to make alternative education provision for Y after her placement at School A broke down;
• delayed investigating her complaint about these matters and unreasonably restricted its complaint investigation.

2. Mrs X said because of the Council’s actions, Y suffered harm to her wellbeing and development, causing setbacks to her education. Mrs X said she experienced exhaustion, frustration and anxiety because of the Council’s actions.

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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. 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. 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 Tribunal in this decision statement.
7. 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)
8. 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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What I did and did not investigate

9. I did not investigate Mrs X’s complaints about the content of an EHC Plan issued to Y in May 2025. This included complaints about:

• the Council’s decision to continue to name School A as Y’s place of education;
• the content of Section F of the Plan setting out the scope of Y’s education provision including any therapy needed;
• the weight it gave to an educational psychologist’s report of December 2024, in production of the Plan.

10. I set out my reasons below, after summarising relevant law and guidance; and the key facts of this case. This is in the first part of my findings, headed “my approach to investigation”.

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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. I gave both Mrs X and the Council chance to comment on a draft version of this decision statement. I took account of any comments they made or further evidence they provided, before issuing this final version.

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What I found

Relevant legal and administrative considerations

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 the arrangements made to meet them. The EHC Plan has various sections. These include:

• Section F: This sets out the special educational provision needed by the child or the young person. 
• Section I: This sets out the name and / or type of educational placement the child or young person will attend.

14. A child’s parent has the right to request that an EHC Plan names a particular school, college or other education setting in Section I. This can include asking the Council to name an independent school, if approved by the Government under Section 41 of the Children and Families Act 2014 (see section 38 of the Children and Families Act 2014 and paragraph 9.78 of the SEN Code of Practice). The Council must comply with parental preference in these circumstances, except where it considers the child’s attendance at the preferred education setting would be:

• unsuitable for the child or young person given their age, aptitude or special educational needs;
• incompatible with the efficient education of others, or the efficient use of resources.

15. 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).
16. We accept it is not practical for councils to keep a ‘watching brief’ on whether every education institution provides all the special educational provision expected for pupils with EHC Plans. But we consider councils should have enough oversight to show compliance with their legal duty. For example, we expect them to investigate if they become aware of concern a school is not providing education for a child or young person in line with their EHC Plan.
17. The council must arrange for a review of an EHC Plan 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. 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) 
18. Where the council proposes to amend an EHC Plan, it must send the child’s parent or the young person a copy of the existing (non-amended) Plan. It should enclose a notice providing details of proposed amendments. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). This should happen within four weeks of the date of the review meeting. The Council must then issue the final amended EHC Plan within a further eight weeks.
19. A parent can appeal to the Tribunal if unhappy with the content of some parts of a final EHC Plan. This includes any disagreement with the content of sections F or I.
20. The courts have established that if someone has appealed to the Tribunal, we cannot investigate any matter which was part of, connected to, or could have been part of, the appeal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
21. This has implications where we receive complaints about a child or young person being out of school while an appeal to the Tribunal remains outstanding. We must consider if the non-attendance has a link 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. If so, then we cannot investigate a lack of special educational provision, or alternative educational provision from the date of the appealable decision. The period that we cannot investigate ends when the Tribunal issues a decision, or if the appeal is withdrawn or conceded.
22. We can investigate matters that do not have a right of appeal, or are not connected to an appeal, or not as a consequence of an appeal. For example, complaints about: 

• delays by the Council before an appeal right started;
• a child or young person not receiving support in an EHC Plan, unconnected to any appeal that has, or should have, happened; and
• a failure to provide alternative education when the non-attendance has no connection to, or is not a consequence of, a matter that was (or could have been), part of an appeal to the Tribunal.  

The key facts

23. In September 2024 Y began Year 5 of her education. She has special educational needs, and the Council first produced an EHC Plan for her in 2019. Y attended School A, a maintained specialist primary school. Y’s Plan did not identify that she needed any specialist therapeutic services. Nor did it refer to Y needing any ‘sensory circuit breaks’ during the school day.
24. At the end of September 2024, School A arranged the annual review of Y’s EHC Plan. Mrs X made representations in writing for the review and attended the review meeting. Representatives from the school and officers from the Council’s special educational needs assessment team (SENAT) also attended the meeting.
25. There is no record in Mrs X’s written submissions or the minutes of the review of her expressing specific dissatisfaction with Y’s schooling. However, the minutes recorded some changes to Y’s presentation at school and her becoming more withdrawn. Mrs X questioned why Y’s Plan had not been more recently updated expressing concerns for her progress, wellbeing and educational needs. Mrs X also said she wanted Y to move to School B, an independent school.
26. Because of her concerns for Y’s progress, wellbeing and educational needs Mrs X went on to arrange for Y to see an Educational Psychologist. They completed their assessment in November 2024 and issued a report the following month.
27. The Council wrote to Mrs X in late January 2025 (over 12 weeks after the review meeting) to say that it proposed issuing Y with an amended EHC Plan.
28. The Council then issued Y with a final EHC Plan in May 2025. The Plan continued to name School A as Y’s place of education.
29. Before it issued the final Plan, Mrs X raised the prospect of Y going to School B, in line with what she said to the review meeting the previous September. She asked the Council to consult with School B as her parental preference. The Council wrote to Mrs X in April 2025 to say it would not send a copy of Y’s draft Plan to School B. It said that its specialist panel did not agree that it needed to consult any independent schools. However, it said it would “seek views” from School B when it had finalised Y’s Plan and when it issued this, the Council said it had done so.
30. Section F of the Y’s EHC Plan issued in May 2025, identified that Y should receive support twice a week, for 30 minutes each time, from a therapist to help with her mental health. It said she would also receive an occupational therapy assessment. It also included provision that Y would receive “daily sensory circuits and sensory breaks”.
31. Mrs X said after the Council issued the amended Plan she had discussion with the school about this provision. She said the school could not support Y with the two 30-minute therapy sessions. One therapist could not work with Y because of absence from work. School A referred Y to a third-party organisation, but Mrs X said the support this offered was not the same. A dispute then also arose around the ‘daily sensory circuits’ and whether these happened every day and what impact they had on Y spending time with peers. A further dispute arose when School A reassigned a trusted member of staff for Y.
32. Mrs X appealed the content of Y’s EHC Plan in July 2025. Her appeal included requesting changes to Section F of the Plan, and Section I where Mrs X wanted School B named instead.

Mrs X’s complaint

33. In April 2025 Mrs X made her complaint. She was unhappy with the delay in the Council issuing Y with her amended EHC Plan. Mrs X also asked the Council to consult with School B, saying that if it did not do so, that would be a breach of the law.
34. The Council replied later that month. It apologised for the delay in issuing Y with a draft EHC Plan. It said this was because of the high demands on the Council’s special educational needs service. It said that because School B was not an independent school on the ‘Section 41’ list, the Council had no duty to agree the parental preference for a place.
35. Unhappy with its reply, Mrs X escalated her complaint to stage two of the Council’s complaint procedure the same day. She maintained the Council should consult School B. Mrs X explained why she considered School B would provide education for Y more in keeping with the advice of the Educational Psychologist’s report issued in December 2024.
36. Before the Council replied to her complaint, Mrs X made it aware of the disputes she had with Y’s school summarised in paragraph 31.
37. In its final reply the Council reiterated that it considered it had approached the issue of consultation with School B correctly. It recognised that Mrs X did not agree with its decision to continue to name School A but said she could appeal that. The Council also recognised that it had delayed in issuing Y with a final EHC Plan.
38. The Council said Y’s Plan did not require School A to provide her with “significant therapeutic input”. But that its complaint officer had tried to liaise with the Council’s SENAT, around Mrs X’s concerns highlighted in paragraphs 31 and 36. However, the SENAT had failed to provide information in response to enquiries about the alleged specific failings in Y’s provision. So, the Council said the SENAT would now make more enquiries and ask School A if it considered Y needed more therapeutic input. The Council also offered a symbolic payment of £100 to Mrs X to recognise the “frustration and uncertainty” caused by its actions.
39. During this investigation the Council sent me copies of emails exchanged between Mrs X and School A. These showed that Y stopped attending the primary school in mid-July 2025. In its communications with Mrs X both then and in September 2025, School A explained why it considered it could still meet Y’s needs.
40. Y did not return to the primary school for the start of her Year 6 in September 2025. Mrs X said she had ongoing concerns about whether School A could meet Y’s needs given the “delivery of provision and suitability of [the] placement”.
41. In November 2025, with Mrs X’s appeal against the EHC Plan still outstanding, the Council agreed that Y could transfer to School B. She began there later that month. The Council said it did this after recognising relations between Mrs X and School A had by then broken down.
42. In general comments on this complaint the Council has pointed to the exceptional pressures experienced by its SENAT as contributing to delays in this case. It has also said that since January 2026 it has recruited a new member of staff in SENAT whose role includes liaison on complaints. And that work between its complaint service and SENAT continues to improve communication between the two.
43. I noted that in February 2026 the Council’s Children and Young People’s Services Scrutiny Committee discussed the Council’s Special Educational Needs and Disabilities Strategy 2026-2030. This recognises the difficulties the Council experiences in meeting the statutory timescale for completing education, health and care needs assessments which might result in a child or young person receiving an EHC Plan. It sets out how the Council plans to improve its performance. It does not comment on how successfully the Council meets timescales for reviewing EHC Plans and issuing any amended plans following review.

Findings

My approach to investigation – matters I did not investigate

44. I did not investigate certain matters connected to the content of Y’s EHC Plan issued in May 2025. After the Council issued the Plan, Mrs X appealed, wanting changes to Section F covering Y’s education provision and Section I, which named School A. As I explained above, where a complainant has used this right of appeal, we cannot investigate a complaint about the matters appealed. So, I could take no view on the Council’s decision not to include more therapeutic provision in Section F or its decision not to name School B in Section I.
45. Nor did I consider that I could investigate Mrs X’s complaint the Council did not give enough weight to the Educational Psychologist’s report produced in December 2024. It was Mrs X’s view this provided compelling evidence for why Y needed to change schools and needed certain provision not contained in her Plan. The document therefore went to the crux of her appeal case. So, I had to consider any complaint about the Council’s approach to its content as also falling outside our powers to investigate.
46. I also decided we could not investigate the Council’s decision not to make alternative education arrangements for Y between July and November 2025. I found Y’s absence resulted from the diagnoses that cause her to have special educational needs. While her absence also took place against the backdrop of Mrs X’s expressing the view that School A could no longer meet her daughter’s needs. I found this was in dispute, as the school made the case that it could continue to meet Y’s needs, which the Council agreed with (up to November 2025). It considered Y had education available and accessible to her while she was out of school. I considered this was a position the Council could reasonably take given the facts of this case.
47. I noted the Council went on to concede part of the appeal, agreeing Y could join School B in November 2025. But I did not find this meant it had come to the view School A was no longer suitable for Y at that point or any earlier date. I considered the circumstances described in paragraph 21 therefore applied here, and none of the exceptions set out in paragraph 22 applied.
48. That said, I could investigate the complaint School A failed to provide Y with education for her in line with her EHC Plan for the time she attended the school. That included the period between May to July 2025, when Y had an EHC Plan whose contents were under appeal. I set out my thinking about that below

The complaint about delay

49. I found the Council at fault because of the delay in it issuing Y with an amended EHC Plan after her September 2024 annual review. The Council should have issued Y with her updated Plan by the end of December (12 weeks), but instead it did not do so until May 2025, a delay of around 20 weeks.
50. During this time, Mrs X experienced an injustice as distress. First, as uncertainty, in not knowing what the amended Plan would contain. Second, as frustration, with the delay stopping Mrs X being able to exercise appeal rights. I recommended action I wanted the Council to take to remedy that injustice, which it agreed to. I set that out below.
51. I also considered any impact on Y of the Council not updating her Plan sooner. I found the education provision described in the Plan in use before May 2025 was not as suitable to meet her needs, as the version that followed. However, I also noted the Plans in force both before and after May 2025 were not so different. I did not consider therefore that Y missed any education provision because of the Council’s delay, to the extent we could consider that a separable injustice.
52. Nor did I find that it followed that Y would have necessarily moved to School B sooner had the Council issued the updated Plan sooner. Y’s change of schools followed events from July 2025 onward. I cannot assume such events would inevitably have happened sooner, had the Council finalised her EHC Plan before May 2025.

The complaint about consultation

53. Before the Council issued Y with her EHC Plan in May 2025, it did not consult School B as Mrs X wanted it to. I did not consider it at fault for that. The law places a clear expectation that councils consult independent schools preferred by parents of children with EHC Plans, if those schools are ‘Section 41’ approved schools (see paragraph 14). It does not place an equivalent expectation that the Council should consult non-Section 41 approved schools.
54. That said, a council should still take account of parental wishes when producing an EHC Plan, if a parent expresses a preference for a non-Section 41 school. But the evidence in this case is the Council did so here. The SENAT officer explained to Mrs X in April 2025 that its Panel of senior officers had considered Y’s case and did not think it necessary to consult independent schools before finalising her Plan. Mrs X could respectfully disagree, but the way to resolve that disagreement was for her to appeal.

The complaint about non-provision of education

55. I did not find the Council at fault here. I found no evidence of any complaint School A failed to make provision in line with Y’s EHC Plan before the content changed in May 2025. After that, Mrs X raised two main concerns. First that the school did not provide Y with the therapy detailed in her Plan. Mrs X’s other concern was that School A did not provide consistent or suitable ‘sensory circuit breaks’ for Y as her EHC Plan now required.
56. I am satisfied the Council knew of Mrs X’s concerns and had opportunity therefore to check Y’s provision with School A. However, that opportunity was short, as around two to three weeks after Mrs X raised these matters, Y stopped attending the school.
57. I did not consider the Council at fault for failing to have intervened in this short timescale. It knew of ongoing discussion between Mrs X and the school around Y’s provision, and the Council could reasonably wait to see if this resulted in a resolution. This is after I note there was no dispute the school did not make some attempts to deliver the provision. It would appear to the Council there were some problems in its implementation, as sometimes happens when a school must schedule a new provision. Also, I noted this provision formed but a small part of Y’s overall provision. So, even if the Council could have done more to try and bring the parties together, I could not say its failure to do so caused Mrs X or Y a significant injustice.

The Council’s complaint handling

58. Finally, I considered the Council’s complaint handling in this case, which at stage two of the procedure was poor. It should have provided its final response to Mrs X’s complaint before the end of May 2025, but she had to wait another three months for it to do so. That delay was a fault.
59. The Council explained the delay resulted from the SENAT not replying to enquiries from officers charged with replying to Mrs X’s complaint, something I am concerned about. I am also concerned the complaint response promised follow-up action which the Council failed to take. Specifically, it said the SENAT would explore the specific concerns raised by Mrs X about School A not making certain provision for Y. The SENAT should therefore have written to Mrs X again to clarify its position on those matters. Not doing so, was a fault.
60. However, I did not fault the Council for saying some matters Mrs X complained about were for an appeal to resolve. The Council’s complaint procedure will aim to resolve matters for which no other form of redress exists, such as a statutory appeal procedure.
61. I found the injustice caused to Mrs X by the Council’s poor complaint handling was that she experienced more time, trouble and frustration in making her complaint than she should have. But I did not consider the lack of a follow-up letter by the SENAT caused any additional injustice. This was because by August 2024 events had moved on since Mrs X first expressed concern that Y did not receive all the provision in her Plan. Y had stopped attending School A. While the dispute about whether that remained an appropriate setting for Y was subject to appeal.

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Agreed Action

62. In paragraphs 50 and 61 I found fault by the Council caused an injustice to Mrs X. The Council has accepted this finding and agreed that within 20 working days of this decision, it will:
1. provide a written apology to Mrs X accepting the findings of this investigation. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making its apology;
2. make a symbolic payment to Mrs X of £350. I recommended £250 for Mrs X’s distress and £100 for her time and trouble, noting the Council had already made a payment of £100 following its own consideration of her complaint. This award is in addition to the Council’s previous payment.
63. I also recommended the Council should look to make service improvements following this complaint. I welcomed the work it had undertaken to improve complaint handling since Mrs X made her complaint. I considered this sufficient to demonstrate it would likely better handle a similar complaint if made now with improved liaison between its complaint service and its SENAT.
64. I also noted the Council continued to work to improve its service for delivering special educational needs provision at a time of unprecedented demand. But I wanted reassurance that it had not lost focus on the need to complete reviews of EHC Plans within the statutory timescales. So, within two months of a final decision on this complaint, the Council has agreed it will write to us and explain what action it is taking, or proposes to take (and if so in what time frame), to:
1. monitor timescales for completing reviews of EHC Plans, including where it has agreed to amend a Plan;
2. improve the timeliness of reviews and issuing amended Plans if, as in this case, it is not meeting the statutory timescales.
65. The Council will provide us with evidence it has complied with the above actions.

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Final Decision

66. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mrs X. The Council accepted these findings and agreed to take action that I considered would remedy that injustice. Consequently, I completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman