Summary: The Council was at fault in how it reviewed W’s Education, Health and Care Plan and for delay in considering W’s mother’s request for Education Otherwise Than At School. The faults meant W missed out on education they should have had. They also meant W’s mother, Ms X, experienced avoidable frustration and uncertainty. The Council will apologise and make a symbolic payment. It will also issue a staff reminder on annual reviews.

The complaint

1. Ms X complained the Council took too long to decide whether to arrange for her child, W, to receive Education Otherwise Than At School (EOTAS). Ms X said that after the Council agreed W should have EOTAS, it took too long to decide what the package of education should be.
2. Ms X said this meant W missed out on education at key stage, which will have a lasting impact on them. Ms X also said it caused her and W significant anxiety and upset.

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The Ombudsman’s role and powers

3. 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)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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).

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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

Law and guidance

Education, Health and Care Plans

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 which include:
• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and/or type of educational placement 
10. Education Otherwise Than At School (EOTAS) is the term for a package of education which is delivered wholly outside of a school setting. The package is tailored to the child or young person receiving it but typically involves tuition alongside other forms of provision such as outdoor activities or therapies.
11. If a council agrees a child or young person should have EOTAS it must issue a final EHC Plan which includes details of the package in section F and leaves section I blank.
12. 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).

Appeals

13. There is a right of appeal to the SEND Tribunal against a council’s decision on what placement or type of placement to name in section I and the content of section F.
14. 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. 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. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

Annual reviews

15. 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. 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) 
16. 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.
17. 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.

What happened

18. In May 2024, the Council issued an EHC Plan for W. After they struggled to attend the school named in the Plan, the Council arranged a package of 10 hours of maths and English tuition per week, alongside provision from an organisation which provided weekly mentoring.
19. In early May 2025, at W’s annual review meeting, Ms X asked the Council to agree EOTAS. At the end of the month, the Council issued its decision to maintain W’s EHC Plan unchanged. It told Ms X it would continue to work with her to decide what EOTAS package W should have. After some discussion, Ms X said she wanted W’s EOTAS package to include tuition for a greater range of subjects than English and maths.
20. In early September, Ms X made a stage one complaint to the Council. She said it had taken too long to decide if W should have EOTAS. She said W did not know what their education would be, which was making them disengage from tuition.
21. The Council issued its response in late September. It said:
• It accepted it had agreed to consider Ms X’s request for EOTAS outside of the annual review process, which may have confused her. It said it should have told Ms X that EOTAS was not guaranteed and that because it was making its decision outside of the review process, she would have no right of appeal if the Council decided EOTAS was not appropriate. The Council said it had raised the matter with managers to ensure communication was better in future;
• It agreed W should have EOTAS; and
• It would tell Ms X what the EOTAS package would be by early October.
22. The Council did not do this, so Ms X asked it to respond to her complaint at stage two. The Council responded a few days later. It said it had consulted with a possible tuition company but had heard in early October that the organisation could not teach W.
23. The Council later told Ms X it would respond about the EOTAS package by mid-October. It did not do so, and Ms X complained to the Ombudsman.
24. In early December, the Council issued W’s amended EHC Plan. It included an EOTAS package of 15 hours tuition per week, plus one hour mentoring per week. The Plan does not name what subjects W would study, but Ms X told the Ombudsman it was a range, which allowed W to sit their exams in summer 2026.

Findings

25. The Ombudsman cannot investigate matters which should have been appealed or are connected to matters which should have been appealed. Ms X’s complaint is about the Council’s consideration of whether to put W on EOTAS. Ms X had a right of appeal to challenge the Council’s decision to maintain W’s EHC Plan unchanged, continuing to name the school they were not attending, instead of including EOTAS in section F and leaving section I blank. However, it was not reasonable to expect her to have appealed because the Council gave her the impression it was going to agree EOTAS. Therefore, I can consider Ms X’s complaint.
26. The Council was at fault for failing to consider Ms X’s request for EOTAS 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 change of placement during the annual review must be considered as part of that process. Instead, the Council ended the annual review process by issuing its decision to maintain W’s EHC Plan unchanged and then considered Ms X’s request separately. If the Council had considered Ms X’s request as part of the annual review, it would have had to make any amendments to W’s EHC Plan within 12 weeks of the date of the review meeting in early May; this was by the end of July. By acting outside of the review process, the Council circumvented that deadline. It also removed the possibility for Ms X to appeal to the SEND Tribunal, if it had decided against an EOTAS package. The fault caused Ms X avoidable frustration and uncertainty about how the Council was considering her request.
27. The Council ultimately took almost 31 weeks to issue an amended EHC Plan for W, including the EOTAS package. This was 19 weeks later than it should have been; almost five months. The delay was fault. On balance of probabilities, had the Council reviewed and amended W’s EHC Plan as it should have, it likely would have agreed the same EOTAS package as in the December 2025 EHC Plan. Therefore, and taking into account school holidays, W missed out on five hours per week of tuition between September and early December 2025, during a key stage in their education. This was an injustice to them, but the fault also caused Ms X avoidable frustration and uncertainty.
28. Ms X also experienced additional frustration because of the Council’s failure to make a decision on the EOTAS package by the deadlines it set itself. This was fault.

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Action

29. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Ms X for the frustration and uncertainty she felt because of the faults set out in this decision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Ms X £1300 to recognise the impact of the loss of tuition on W.
3. Clarify to staff that if a child’s parent or young person requests a change of placement at an annual review meeting, the Council must consider that request as part of the annual review process. It must not issue a decision to maintain a child or young person’s EHC Plan and then consider the request separately as doing so circumvents the required timescales that apply to annual reviews and removes the option of an appeal for the parent or young person.
30. The Council wil provide us with evidence it has complied with the above actions.

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Decision

31. I find fault causing injustice. The Council has agreed actions to remedy that injustice and prevent fault in future.

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Investigator's decision on behalf of the Ombudsman