on the lessons that can be learnt from our complaints about end of life care given in care homes and in the home.
Category : Education > Special educational needs Decision : Upheld Decision date : 18 Feb 2026
The Ombudsman’s role and powers
What I have and have not investigated
What I found
Agreed
action
Final decision
The Ombudsman's final decision
Summary: Mrs X complained about the Council’s actions linked to her daughter’s education. We found fault because the Council failed to deliver provision set out in her daughter's Education, Health and Care Plan, failed to consider its alternative education duties, failed to amend her plan in statutory timescales and did not communicate effectively. This caused Mrs X avoidable distress, frustration and uncertainty. It meant Y missed out on provision she was due. To remedy the injustice caused, the Council will apologise and make a payment to Mrs X.
The complaint
Mrs X complains about the Council’s actions related to her daughter, Y’s, overall education and Education, Health and Care (EHC Plan). Specifically, she complains: it did not consult with other possible education providers when it said it would after issuing her first EHC Plan; it did not provide Y with an appropriate education or alternative education when she felt unable to attend school; it took too long to issue an amended plan when it agreed to amend her existing EHC Plan; and communication was poor overall.
Mrs X says this caused her distress and frustration. She says this affected the education Y received.
The Ombudsman’s role and powers
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) 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) 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.
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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated My investigation will begin when the Council issued Y’s first EHC Plan in March 2024.
My investigation will end when the Council completed its complaint process and signposted Mrs X to the Ombudsman in March 2025.
How I considered this complaint
I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.
What I found
Special educational needs A child with special educational needs (SEN) may have an EHC Plan. This 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 (Section B), education (Section F), or the name of the educational placement (Section I). Only the SEN and Disabilities (SEND) Tribunal (the Tribunal) or the council can do this.
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) General section 19 duty Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as S19 or alternative education provision (AP).
Available and accessible The courts have considered the circumstances where the S19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under S19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017) What happened I have set out below a summary of the key events. This is not meant to show everything that happened.
Background and context Before the period of my investigation, the Council had agreed to complete an EHC needs assessment on Y. This process began in December 2023. Y was on roll at a mainstream secondary school, School A. Y was in Year 10 when GCSE studies are underway.
As part of the consultation process, the Council asked School A if it could meet Y’s needs. School A voiced concerns about being named as the setting to deliver the SEN provision suggested in Y’s draft plan. It was concerned her attendance would hinder its ability to meet needs and that it was not resourced or equipped to meet the provision set out in the draft plan.
The Council discussed the naming of School A with Mrs X on 22 March 2024. It said it had little choice but to issue the EHC Plan and name School A so that it kept within statutory deadlines. It said it would consult with other providers and work on securing Y a different school place. The Council finished by saying the final EHC Plan could be amended if needed, after it had been finalised.
2024 EHC Plan onwards The Council issued Y’s first final EHC Plan on 25 March 2024 naming School A. On the same day, the Council agreed to consult two other specialist schools to see if they could meet Y’s needs from September 2024 onwards. It agreed to update Mrs X after the Easter break.
Mrs X emailed the Council on 13 June to say things were not working as hoped at School A, Y was struggling to attend and she wanted to discuss the other settings.
The Council sent a consultation letter to a different provider on 19 June, School B. This was to enquire whether the provider could meet Y’s needs, according to the provision set out in her EHC Plan.
Mrs X chased the Council on 25 June to ask for a response her email of 13 June. The Council replied the next day to say matters regarding an alternative setting were being looked at by senior officers.
Mrs X chased for an update again on 8 July and said Y was still struggling to attend School A. She suggested alternative education would be the best way forward for September onwards.
On 23 August, Mrs X again chased for an update as she was still unaware what would happen in September. Mrs X asked this to be classed as a complaint.
The Council sent its stage one complaint response on 13 September. It apologised and said it should have been made clear to Mrs X that it had not agreed to name a special school for Y, as yet. It recommended an early annual review of Y’s EHC Plan. It apologised for Mrs X’s experience so far.
The Council held the early annual review of Y’s EHC Plan at the beginning of October. It received a response from School B in mid-October which said it could initially offer a six-week placement. At the end of the month, the Council advised Mrs X of its intention to amend Y’s EHC Plan.
Mrs X made a second complaint to the Council in mid-December.
2025 In its January 2025 complaint response to her, the Council noted the amended EHC Plan was still at draft stage when it should have been finalised by 26 December 2024. It apologised and said this delay was due to limited capacity in the team.
Mrs X later registered a third complaint to which the Council responded on 18 February. It again acknowledged the amended EHC Plan was still at draft stage. It also said it would discuss Mrs X’s request for tutoring to run alongside the school provision with School A itself. It said it would present the case to panel and update Mrs X and School A. Unhappy with this response, Mrs X escalated her complaint to stage two of the Council’s process.
Following a call with Mrs X to discuss matters, the Council sent its stage two response on 5 March. In this, it: again apologised for not issuing the amended EHC Plan within statutory timescales; said it had agreed with Mrs X to re-draft the amended EHC Plan and issue it no later than 7 March; and acknowledged it had not referred Y’s case to its S19 panel as it had said it would and that it would now make the referral as discussed.
The Council apologised and said it regretted it had not provided the expected standard of service to her and that it should have taken a more active role in supporting the family. It said it should have ensured provision was secured in line with Y’s EHC Plan and should have considered its S19 duties. It signposted Mrs X to the Ombudsman.
After the end of my investigation The Council agreed AP for Y in April 2025. It issued three more draft EHC Plans before consulting with three new providers.
After issuing another draft EHC Plan in July 2025, it then issued an amended final EHC Plan ready for Y’s transition to the next phase of her education after GCSEs.
Analysis Mrs X told me she had not been advised of her Tribunal appeal rights linked to the EHC Plan issued in March 2024. The Council has sent evidence of the decision letter being produced. Regardless of whether Mrs X received the decision letter, she was told by the Council it would consult with other schools, and the EHC Plan could be amended later if needed.
I am satisfied that Mrs X understood the Council would take the action it said it would and this was a reasonable stance to take given the circumstances. I have therefore exercised discretion to include this period in my investigation.
Consulting with other education providers In response to my enquiries, the Council said it had not sent consultations to other providers in March 2024 as it said it would.
Evidence shows during the period of my investigation the Council consulted only one provider, School B, on 19 June 2024. This was one of the two schools it said it would consult with in March. It sent the consultation 6 days after Mrs X had chased it about consultation progress.
The Council did not send any other consultations in the period of my investigation. In mid-March 2025, it eventually consulted with the second school on March 2024’s list, a full year later than planned.
Not consulting the two schools when it said it would in March 2024 was fault on the Council’s part. It caused Mrs X avoidable distress and uncertainty.
School B replied four months after the Council sent the consultation. I have seen no evidence the Council chased a response during the intervening period. In the circumstances of this complaint and given it had consulted only one school, I am satisfied the Council allowed things to drift. It was reactive rather than proactive when dealing with both Mrs X and School B. This lack of action is fault. It caused avoidable distress, frustration and uncertainty to Mrs X and Y. I have made a recommendation below to remedy this injustice.
Alternative education for Y In my enquiries, I asked the Council if it had considered its S19 duties during the period of my investigation. In response, the Council said that during this time it had not accepted any S19 duty as there were no referrals for this provision. The Council said it had made a referral on 1 April 2025 after which time AP was put in place for Y. This was a package of tutoring and equipment to help.
The Council said it is reliant on schools notifying it of attendance concerns and making referrals to its S19 panel. It said it recognised this dependency had the potential to delay identifying pupils who needed S19 provision. The Council also said it had strengthened its processes and communications with schools related to S19 referrals.
Mrs X notified the Council Y was struggling to attend School A in an email sent to it on 13 June 2024. Mrs X first mentioned that she thought AP was needed in an email to the Council on 8 July 2024. The responding officer said she had passed this on for consideration.
The Council later agreed in its stage one complaint response sent 18 February 2025 that it would present Y’s case at the S19 panel. It said this again in its stage two response sent 5 March 2025 but did not then make a referral to it until April 2025.
I note the Council’s comments and welcome the steps it has taken to improve its consideration of S19 duties and referrals. However, I am satisfied the Council should have taken action to consider its S19 duties from when it was made aware of Y’s difficulties in attending in June 2024 and revisited this when Mrs X asked it to consider AP in July 2024. It should not rely solely on referrals from schools. It was already aware of long-standing issues with Y’s attendance much before the period of this investigation.
Not considering its S19 duties was fault. On the balance of probabilities, I am satisfied if the Council had considered its S19 duties when it was first asked to, it is more likely than not that it would have arranged some form of provision for Y as it did in April 2025. There is no evidence to suggest a significant change in circumstances around Y’s barriers to attendance and Y was in her important GCSE years at the time. The lack of AP caused distress and frustration for Mrs X and Y. It meant she missed out on education she was due. I have made a recommendation below to remedy this injustice.
EHC Plan provision for Y I asked the Council how much of the provision set out in Y’s EHC Plan was delivered during the time of my investigation. The Council said much of Y’s provision would have been delivered through a personalised curriculum with a mentoring approach from adults. It said that given Y’s barriers around attendance, her provision would not have been delivered in accordance with need. The Council said this would have been rectified via any S19 duty being agreed, but this was outside of the investigation timescale.
The Council has a non-delegable duty to deliver Section F and should attempt to do so wherever possible. Not attempting to fully deliver Y’s Section F provision was fault. It caused avoidable distress and uncertainty to Mrs X and meant Y missed out on the opportunity to access provision she was due. I have made a recommendation below to remedy this injustice.
Time taken to issue amended EHC Plan After the Council said it intended to amend Y’s EHC Plan at the end of October 2024, it should have issued the final plan by the end of December 2024. The Council did not send any draft until 20 December. It sent second, third and fourth draft plans (all after my investigation ends) and issued an amended EHC Plan on 8 July 2025.
In its January 2025 complaint response to Mrs X, the Council said the delay in issuing was due to staff capacity. In response to my enquiries, the Council did not provide any evidence or comment as to whether Mrs X was advised of the delays before either the December 2024 draft or her January complaint response were sent.
I note the Council’s comments to Mrs X about capacity issues. However, not finalising the amended EHC Plan by late December was fault. This caused Mrs X and Y distress, frustration and uncertainty. It also frustrated Mrs X’s right of appeal to the Tribunal. I have made a recommendation below to remedy this injustice to Mrs X.
Communication In response to my enquiries the Council acknowledged that Mrs X had to repeatedly chase for updates and responses. It said it was sorry its communication fell short of expectations and caused frustration to Mrs X.
I agree with the Council’s assessment. Evidence shows periods of little or no communication when Mrs X was expecting matters to progress. Mrs X made chases often with no success. When she was told matters had been raised with or were being handled by other relevant people, there was often still no progress made in getting concrete information. This poor communication was fault. It caused Mrs X avoidable distress, frustration and uncertainty. I have made a recommendation below to remedy this injustice.
The Council said it has developed an interim communications strategy and streamlined its processes in the EHC team to manage communications using a single point of access.
Given the steps taken by the Council to combat communication issues, I do not intend to make any further service recommendation.
The Council’s improvement plan I have not made any service improvement recommendations related to the identified fault above as the Council already has an ongoing action plan in place regarding its SEND and alternative education provisions.
Agreed action
To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision: apologise to Mrs X and Y for the identified injustice; and make a symbolic payment of £5033 to Mrs X to recognise the missed SEN provision Y experienced from March 2024 to March 2025 and the missing AP from July 2024 to March 2025.
The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology .
Payments made are in line with the Ombudsman’s guidance on remedies.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.
Investigator's decision on behalf of the Ombudsman