Summary: The Council was at fault for delay consulting with Ms X’s preferred school following the annual review and for her child’s missed education. The Council was also at fault for poor communication. The Council has agreed to remedy the missed education, distress, time and trouble this has caused.

The complaint

1. Ms X complained the Council delayed consulting with her preferred school following the annual review of her child’s (C’s) Education, Health and Care (EHC) Plan. Ms X also said the education provided by the Council while C was out of school was inadequate and complained about the delay and lack of correspondence. Ms X said this meant C missed out on education and it caused her and C distress. Ms X said she had been put to time and trouble handling the complaint.

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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. 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.
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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What I have and have not investigated

6. I have considered Ms X’s complaint from October 2024, when she said her child C was not attending school full time, to October 2025, when Ms X complained to the Ombudsman. While I have referenced some matters after October 2025, as relevant for my consideration of this investigation, I have carried out no investigation or made any decision of fault after October 2025.

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How I considered this complaint

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

Relevant legislation

The Education, Health and Care (EHC) Plan and the Annual Review

9. 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. 
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 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) 
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). 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.

Appeal to the Tribunal

12. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan; and
• decision not to amend an EHC Plan following a review or reassessment.

13. 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.

The Section 19 duty – Alternative Provision

14. 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.

What happened

15. I have summarised below the key events; this is not intended to be a detailed account.
16. The Council first issued C with an EHC Plan in February 2021. The Council updated this in June 2022, November 2023 and June 2024.
17. C started attending their first year in mainstream secondary school (School M) in September 2024.
18. School M suspended C regularly. By October 2024, C did not attend School M.
19. In October 2024, the Council provided C three half days a week at an alternative provider (AP1).
20. In April 2025, School M held an annual review meeting and said C needed increased provision. Ms X said she would like C to attend a special school, her preference was School P. Ms X telephoned School P, it said it had a place available. Ms X told the Council.
21. The Council issued a final EHC Plan later in the month. It named the same school as the previous Plan. Ms X did not appeal.
22. The Council consulted with School P in July 2025. It did not have any available places for C.
23. In September 2025, the Council provided extra funding for C to receive provision at an additional alternative provider (AP2). C attends three days a week.
24. In January 2026, the Council assigned a new officer to the family.
25. The Council issued a new EHC Plan in June 2026.

The complaint

26. Ms X complained to the Council in early July 2025. Ms X complained the Council failed to respond to her emails and delayed contacting School P which meant C missed a place. She also complained the alternative provision was not enough.
27. The Council issued a stage one response in the middle of August 2025. It recognised C had been out of full-time education since October 2024 and offered a financial remedy of £1,500.
28. Ms X was not satisfied with the response and asked for a stage two investigation.
29. The Council issued a stage two response in the middle of September 2025. It partially upheld Ms X’s complaint. The Council apologised for the delay referring C to School P to see if there was a school place available. It said it referred C in the middle of July and the School responded in early August to say there were no places available. It accepted this was distressing for the family and confirmed it sent referrals to other schools.
30. The Council offered an increased financial remedy payment for missed provision to Ms X of £3,000 from October 2024 to October 2025. The Council said it referred to the Ombudsman’s guidance on remedies before making this offer. It said it considered the provision in C’s EHC Plan and the alternative provision it offered, which lessened the impact. It also considered C’s missed education in her first year of Key Stage 3 which increased the impact.
31. The Council said it would assign a newly recruited officer to C and apologised for the poor relationship and communication Ms X experienced with the previous officer. The Council apologised for the distress, time and trouble caused.
32. Ms X was not happy with the Council’s response and complained to us in early October 2025.
33. In response to my enquiries, the Council explained its calculation for missed provision as outlined in paragraph 30 above. It also offered an extra £300 remedy for Ms X’s distress and £200 for her time and trouble pursuing a complaint.

Analysis

34. The Ombudsman cannot investigate matters which should have been appealed or are connected to matters which should have been appealed to the Tribunal. Part of Ms X’s complaint is about the Council’s delay consulting with School P. Ms X had a right of appeal to challenge the Council’s decision to name School M in C’s EHC Plan (the school which C was not attending), instead of consulting with School P and naming this in the plan, as was her preference. However, it was not reasonable to expect Ms X to have appealed because the Council gave her the impression it may secure C a place at School P. Therefore, I can consider this part of Ms X’s complaint.
35. The Council was at fault for failing to consult with School P as part of the annual review process. Annual reviews are intended to consider the continued suitability of a child’s EHC Plan, including the setting named in it. A request made for a preferred school during the annual review must be considered as part of that process. Instead, the Council ended the annual review process by issuing the EHC Plan naming School M and failed to consult with School P until after it had finalised the plan. The Council removed the possibility for Ms X to appeal to the SEND Tribunal when it subsequently decided not to name School P in the plan. This fault caused Ms X avoidable frustration and uncertainty about how the Council considered her request for her preferred school.
36. In addition, the Council took three months to consult with School P. In its complaint response and response to my enquiries, the Council accepted this was fault. It caused Ms X further avoidable frustration. The Council also accepted fault for failing to put suitable alternative provision in place for C, which meant C missed out on education they were entitled to. The Council has apologised and offered £3,500 to recognise the impact of those faults on C and Ms X. This offer is a suitable sum to remedy the injustice caused by the faults identified in this paragraph and paragraph 35 and is in line with the Ombudsman’s guidance on remedies.
37. The Council also accepted communication and the relationship with its officer was ineffective and apologised for this in its complaint response. This was fault which caused the family distress. The Council said it had recruited a new cohort of officers which it was training and would allocate one to the family, which it has now done. This prevents any continuing injustice.
38. The Council has issued a new EHC Plan to C. If Ms X is not satisfied with the Plan, she can challenge this at the Tribunal.

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Action

39. Within four weeks of the final decision, the Council should pay Ms X £3,500 to recognise the impact of C’s missed education from October 2024 to October 2025, the distress Ms X felt because of the delay consulting with school P and the Council’s failure to consider her request for a school placement during the annual review process.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman