The Ombudsman's final decision
Summary: The Council failed to ensure Miss X’s child Y received consistent stop gap alternative provision between October 2024 and May 2025 during an ongoing tribunal appeal. It also delayed holding an annual review for Y by 18 months. The Council agreed to apologise and make a payment to recognise the injustice this caused. Other matters complained about between February 2023 and October 2024 have either been dealt with already or are outside of our jurisdiction.
The complaint
Miss X complained the Council failed to ensure her child, Y received a suitable education and the specialist provision in their Education, Health and Care (EHC) Plan between February 2023 and June 2025 when they were unable to attend the named school.
She also complained about delays carrying out Y’s annual review and delays in providing a personal budget causing Y’s alternative provision to stop in between February and April 2025.
Miss X says the matter has caused significant distress, uncertainty and time and trouble. She said Y’s education and social development has suffered.
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) 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 We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council provider has done. (Local Government Act 1974, sections 26B and 34D, as amended) Miss X initially complained to the Council during 2024 after Y stopped attending school in February 2023. Miss X had appealed to the SEND tribunal in late 2023 and because of this the Council said it could not respond to Miss X’s complaints. This decision was found to be flawed because part of Miss X’s complaint was separable from the appeal. I am therefore able to consider matters back to 2023.
I however not considered Y’s education between February and July 2023 when they were not attending school. This is because the Council has already accepted failing to provide Y with alternative provision during this period and has paid Miss X a sum of money to acknowledge this. Further investigation will not achieve anything more for this period.
I have also not investigated Y’s education between August 2023 and October 2024. This is because Miss X had appealed the Council’s decision to name a mainstream school (School A) in Y’s EHC Plan which was issued in August 2023 to the SEND tribunal. A core part of Miss X’s appeal was that Y was unable to attend a mainstream setting due to the complexity of their needs and instead wanted the Council to name a special school. Considering Y’s education during this period would result in me looking at the Council’s decision and reasoning to name a mainstream school in Y’s EHC Plan. Investigating would therefore trespass on the tribunal’s jurisdiction. In line with the reasons explained in paragraphs 19-24 this period falls outside of our jurisdiction and is therefore not something I can investigate.
Some elements of Miss X’s complaint were also about poor communication and a lack of support during the tribunal process. This included consultation with schools, not responding to emails/calls and having to chase for information. Miss X also wanted reimbursement for the cost of a private educational psychologist (EP) report. I have not investigated this because how the Council conducts itself within the tribunal process is a matter for the tribunal itself. We also cannot consider optional reports provided during the tribunal process. This is because the tribunal could have ordered a new EP report if it deemed it necessary. Therefore, similar to the above these matters lie outside of our jurisdiction.
I have considered matters, including Y’s education from October 2024 until May 2025. At this point the Council agreed that a mainstream setting was not appropriate for Y and it assumed a role of providing interim education pending the outcome of the appeal while it sought to identify a longer term placement. This means we have jurisdiction to consider the Council’s approach in providing the agreed interim education from that point until it issued Y’s amended Plan in May 2025 following the conclusion of the appeal.
How I considered this complaint
I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
Relevant law and guidance Education, Health and Care Plans 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.
The EHC Plan is set out in sections which include: Section B: Special educational needs.
Section F: The special educational provision needed by the child or the young person.
Section I: The name and/or type of educational placement.
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).
Reviewing EHC Plans 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).
SEND tribunal 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.
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.
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.
This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked 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, we cannot investigate a lack of special educational provision, or alternative educational provision.
Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
We cannot trespass in any way on the jurisdiction of the tribunal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207.
Stop gap/interim provision We have jurisdiction to investigate a Council’s approach where it assumes a role in providing interim/stop gap provision during an appeal while it looks for a suitable long term placement. We can only investigate whether the Council has followed through with any provision it has agreed to provide. We cannot consider the suitability of the provision as the restrictions outlined in paragraph 22 still applies.
What happened
Background
Miss X has a child, Y, who has special educational needs and an EHC Plan. Y’s first EHC Plan was issued in 2022 and named a mainstream primary school (School A) in section I.
Y stopped attending school in early 2023. They struggled to attend due to their level of needs. School A held an annual review in March 2023. Following the review a Council panel decided Y should remain in a mainstream school setting. The Council issued an amended EHC Plan for Y in August 2023 which continued to name School A. That decision came with a right of appeal to the SEND tribunal.
Miss X appealed to the SEND tribunal in November 2023 against sections B, F and I of Y’s amended Plan. A main part of the appeal was against the naming of School A as she wanted Y to attend a special school.
School A put some alternative provision in place for Y between September 2023 and July 2024 which the Council agreed to fund. This consisted of provision from different providers for a number of hours each week.
Y was due to begin secondary education in September 2024. In March 2024 the Council agreed to name a special school (School B) in Y’s EHC Plan. However, Miss X was not in agreement with School B and so the tribunal process continued.
October 2024 onwards Some of Y’s alternative provision providers ended prior to September 2024 due to what to appears to be funding issues. Records show Miss X applied for a personal budget so she could administer the provision.
In October 2024 a Council panel agreed that both School A and School B were not appropriate for Y. The Council said further work was required to identify a longer term placement to meet Y’s complex needs. The Council agreed to keep funding Y’s alternative provision. It also agreed to additional funds for Y to receive core subject tuition each week. The Council provided the funds at this point by way of a personal budget and direct payments to Miss X and this included funds for travel expenses.
Records show Y attended Provider 1 for two hours a week and Provider 2 for two days each week. Y also received tuition in core subjects each week. Records show these varied between two and four hours per week.
Records show the alternative provision package was due to stay in place until December 2024 when the tribunal hearing was due to take place. The hearing was however delayed and the Council agreed to extend Y’s alternative package for it to continue into 2025.
Y’s annual review was due in January 2025, however this did not take place.
Y continued accessing the providers and receiving tuition into 2025 but this was at Miss X’s expense due to delays in reinstating the personal budget. Miss X said this ultimately meant Y could not access the provision between March and the end of April 2025.
The SEND tribunal hearing took place in mid-May 2025. Following the hearing the tribunal issued a consent order for the Council to amend Y’s EHC Plan to name a special school, School C. The Council issued Y’s amended EHC Plan in June 2025 and Y began attending School C the same month. Miss X said the amended EHC Plan contained out of date information.
Miss X complained to the Council in June 2025. She complained about the following which is relevant to this investigation: Y’s lack of suitable education since they stopped attending school in February 2023.
A failure to reimburse Miss X for invoices relating to Y’s alternative provision in early 2025.
Failing to hold an annual review in January 2025.
The Council responded to Miss X in July 2025. It said: School A received funding for alternative provision between September 2023 and July 2024.
It continued funding alternative provision from September 2024 as Y did not attend School B which continued into 2025.
It accepted there were some gaps in Y’s alternative provision and that it did not provide a full weekly timetable. It said tribunal timescales were outside of its control.
There were some delays around the personal budget in 2025. It had now made payments to Miss X for invoices and travel expenses but was sorry for the delay in doing so.
Y’s annual review should have taken place in January 2025.
Unhappy with the response Miss X escalated her complaint to stage two of the Council’s complaints procedure.
The Council provide a final response in August 2025. Further to the stage one responses it said It accepted Y did not have suitable education in place between February and October 2023 for which it apologised.
It would hold an annual review in the autumn term Improvements to how it monitors and processes annual reviews had been identified and it was building capacity to ensure reviews were completed in a timely manner.
The Council offered Miss X £1800 to recognise Y’s loss of education between February and October 2023, £500 for delays in the annual review process and a further £500 for distress caused. Miss X accepted a total of payment of £2800.
Miss X remained unhappy and complained to us.
Since complaining to us Miss X said Y’s annual review did not take place until July 2026.
My findings
Y’s education As explained above I have not considered matters in this investigation between February 2023 and October 2024 for the reasons explained in paragraphs 8-10.
From October 2024 the Council assumed a role in providing stop gap provision for Y after evidence shows at this point that there was acceptance that Y required a different special school. The Council agreed to fund some tuition and provision at external providers. As explained above, because of the ongoing appeal I can only consider the Council’s approach to implementing the stop gap provision as agreed. The Council has accepted there were gaps and delays around providing Y’s alternative provision into 2025. It delayed reinstating the personal budget which meant Miss X had to self-fund some of the provision and transport herself although the Council has now reimbursed her. The delays also meant Y had access to no education at all for six weeks between February and April 2025. This was fault.
The Council’s approach to securing the stop gap provision was not consistent which impacted on Y and caused Miss X distress and uncertainty. The Council has already made a payment of £500 to recognise the distress caused to Miss X and has reimbursed her for expenses she incurred. This payment to acknowledge the injustice caused to Miss X is in line with our guidance on remedies. I have made an additional recommendation to recognise the impact on Y’s education between February and April.
Following a recent final decision on another case with the Council it has agreed to provide an action plan to address issues around how it considers alternative provision. Given this I have not made a further service improvement and we will monitor compliance of this through our casework.
Annual review delays The Council has accepted that Y’s annual review should have taken place in January 2025. Despite stating it would arrange it for the 2025 autumn term the review did not take place until July 2026. That was a significant delay and fault. The Council had previously paid Miss X £500 to recognise the delay at the time however given this delay went on for a prolonged period I have made a further recommendation below.
Action
Within one month of the final decision the Council agreed to take the following action: Apologise to Miss X and pay her a total of £750 to acknowledge the impact on Y’s education and the distress and uncertainty cased by the gaps in Y’s alternative provision and the delay in holding Y’s annual review. 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 I have recommended.
Provide us with an update on improvements undertaken around how it monitors and processes Education, Health and Care Plan annual reviews.
The Council should provide us with evidence it has complied with the above actions.
Decision I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice.
Investigator's decision on behalf of the Ombudsman