The Ombudsman's final decision
Summary: Ms X complained the Council named a school in her daughter’s Education, Health and Care (EHC) Plan that was unable to meet her daughter’s needs and refused to hold an urgent review of the EHC Plan. Mrs X also complained the Council failed to provide a suitable education or the provision specified in her daughter’s EHC Plan for a whole school year. We found the failure to hold an annual review within the statutory timeframes is fault. As is the Council’s failure to ensure Y received a suitable education or the provision set out in her EHC Plan. This fault has caused Ms X and Y an injustice. The Council will apologise to Ms X and Y and make payments to Ms X.
The complaint
Ms X complained the Council named a school in her daughter’s Education, Health and Care (EHC) Plan that was unable to meet her daughter’s needs and refused to hold an urgent review of the EHC Plan.
Ms X complained the Council was aware her daughter was unable to attend school and failed to provide a suitable education or the provision specified in her EHC Plan for a whole school year.
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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended) The law also 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) 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.
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 Ms X complains her daughter has not received a suitable education since she stopped attending school in February 2023. We would not consider events going back this far. We expect people to come to us within 12 months of them thinking the Council has done something wrong. As Ms X contacted the Ombudsman in September 2025 we will consider events since September 2024. I have referred to events prior to September 2024 for context only.
Ms X disagrees with the school named in her daughter’s EHC Plan. This is not a matter for the Ombudsman. Ms X had a right of appeal to the SEND Tribunal in relation to the placement named.
How I considered this complaint
I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
Ms 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
Education, Health and Care (EHC) Plan.
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 council can do this.
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. 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) There is a right of appeal to the Tribunal against a council's description of a young person's SEN, the special educational provision specified, the school or placement specified in their EHC Plan.
Alternative provision 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.
If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
What happened here The following is a summary of the key events relevant to our consideration of the complaint. It does not include everything that happened.
Ms X’s daughter, Y has had an EHC Plan since October 2023 and was on roll at a mainstream school. Y had not attended school since February 2023 and received 1:1 tutoring. Following an annual review in March 2024 the Council consulted with mainstream and specialist schools. In August 2024 the Council issued an amended EHC Plan naming Y’s current school.
Mrs X did not appeal to the SEND Tribunal.
The school continued to fund tuition centred on maths, English, functional skills and therapeutic engagement. In September 2024 the Council arranged a multi-agency meeting with Ms X and the professionals involved with Y’s education. The records note Y had approximately four hours of tuition per week which could be increased, but this was led by Y.
In October 2024 Y began therapeutic support arranged by the school with an independent company.
Ms X requested an interim review of the EHC Plan in February 2025. The Council asked Y’s school to complete a request form. The school said it had stopped filling in request forms as the they had not previously received a response. Instead the school arranged a review meeting for 6 March 2025. The Council did not attend the review meeting.
On 30 March 2025 Ms X’s representative, Ms Z made a formal complaint to the Council. Ms Z complained the Council had refused to agree to an early review and had told the school not to hold this. She said the legislation and guidance did not prevent early reviews. And that in any event it was around 12 months since the previous annual review, so this should have taken place.
Ms Z also complained the Council had not provided the provision set out in section F of Y’s EHC Plan.
The Council acknowledged the complaint and said that as there is no statutory requirement to hold interim reviews it could see no procedural fault to consider under the complaint process. It would consider the complaint about lack of provision from September 2024.
In early May 2025 Ms X contacted the Council requesting additional support. Ms X told the Council Y would like more routine and structure to her day and had spoken about going to school. The Council told Ms X it was waiting for the school to forward the annual review documents so it could see what was being proposed. It would then discuss this with Ms X. The school sent the annual review documentation to the Council on 16 May 2025.
The annual review report noted the school could not meet Y’s needs. It said Y needed a bespoke curriculum to meet her needs and that tutoring was not sufficient The Council responded to Ms X’s complaint on 28 May 2025. It said that as it did not receive a request for an interim review from the school, it did not make a decision on an interim review. The Council also noted Ms X had requested alternative provision and that the case officer would liaise between Ms X and the school to arrange this. The Council confirmed it partially upheld Ms X’s complaint.
Ms X was not satisfied with the Council’s response and asked for her complaint to be considered further. Ms X did not consider it was her responsibility to identify suitable placements and said the Council had not offered alternative arrangements to fulfil its duty.
The Council appointed an investigating officer who completed a report dated 18 August 2025. The investigation noted the school did not invite the Council to the interim review on 6 March 2025 and did not provide the review documentation until May 2025. It also noted an annual review should have taken place within 12 months of the previous one, by late March 2025. And that this would have provided an opportunity to discuss Y’s education. It noted there is no evidence a review was arranged and the subsequent documentation from the interim review was not formally processed.
The investigation report also noted Y had received 5.5 hours a week tuition throughout the 2024/ 2025 academic year. Ms X requested additional support on 6 May 2025. The report said the Council passed responsibility for arranging additional alternative provision to the school, with limited oversight thereafter to ensure arrangements were made.
The investigating officer partially upheld Ms X’s complaint and recommended the Council: Apologise to Ms X and Y for the failure to hold Y’s annual review by 27 March 2025 and the limited oversight of her provision from May 2025; Consider offering a financial remedy in line with the Ombudsman’s guidance Remind relevant officers that the Council has a duty to secure the SEN provision in an EHC Plan; and Remined relevant officers of the statutory obligation to convene annual reviews within the required timeframes.
The Council wrote to Ms X on 22 August 2025 confirming it accepted the investigating officer’s findings and recommendations. It apologised and offered to pay Ms X £200 to recognise the delay relating to the annual review from March 2025 to May 2025. It offered to pay a further £300 to recognise the distress caused by the lack of oversight and confusion regarding the interim annual review process and the lack of oversight of Y’s alternative provision from May 2025.
Ms X was not satisfied by the Council’s response and has asked the Ombudsman to investigate her concerns. Ms X says the Council was aware Y was not attending school but made no effort to support her. She says Y did not have a suitable education for more than a full academic year and did not receive the provision set out in section F of her EHC Plan. This was a significant detriment to Y’s education. Ms X does not consider the Council’s offer of £500 adequately reflects the impact of Y’s missed education and provision.
In response to my enquiries the Council says it was aware Y was experiencing anxiety, Emotionally Based School Avoidance (EBSA) related difficulties and mental health concerns which affected her access to education. It says it worked with the school, health services and the family to identify suitable provision. The Council considers it actively explored alternative educational arrangements while consultations and placement searches were ongoing.
The Council said it provided as much education as Y could access and this was open to continuous review based on Y’s needs and mental health. It says the tuition arrangements were reviewed on numerous occasions. The Council also says it reviewed the EHC Plan provision at various points through multi-agency meetings, the annual review, ongoing discussions with the family and tutor feedback.
Since Ms X complained to us the Council has held an annual review meeting and issued an amended EHC Plan. In October 2025 the Council also agreed alternative provision for one day a week in addition to 4.5 hours tuition each week.
Analysis Councils must review EHC Plans every 12 months as a minimum. The Council should therefore have ensured an annual review of Y’s EHC Plan took place in March 2025. The failure to do so is fault.
The school arranged an interim review in March 2025. It is unclear what status the Council afforded the review. The Council was not involved and did not attend or contribute towards the review. The complaint investigation says that as the school did not submit a formal request the legal process did not need to be followed.
Yet the Council has offered a financial remedy to recognise the delay in the annual review between March and May 2025, when it received the annual review paperwork, and the lack of oversight and confusion.
I do not consider this offer resolves or clarifies the issue. The delay and confusion is not limited to this two month period. Having received the review paperwork in May 2025 there is then no record of how this was considered or of any action by the Council to progress the review. The Council then arranged an annual review in September 2025, six months after this should have taken place.
The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. Failure to do so is fault.
The Council’s failure to ensure Y received a suitable education and the provision set out in her EHC Plan from September 2024 is also fault. Although Y received some 1:1 tuition, this was not as a level equivalent to a full time education. While the Council can decide a child cannot cope with full time provision, we would expect this provision to be kept under review and increased where appropriate.
The Council says the tuition was reviewed regularly according to Y’s ability to engage and her mental health presentation. However there is no evidence of this. Tuition was discussed at a meeting in September 2024, where it was agreed it could increase. But there is then no further reference to the level of tuition until the interim review in February 2025, which the Council did not attend. Based on the documentation provided I am not persuaded the Council reviewed the tuition or had appropriate oversight of Y’s education or the provision in her EHC Plan.
The Council has offered a financial remedy for its lack of oversight of Y’s alternative provision from May 2025. This is to be welcomed, but I consider there was also a lack of oversight prior to May 2025.
Y did not receive a suitable education or the provision in her EHC Plan for a full academic year. This is a significant injustice.
When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment of between £900 to £2,400 per term to acknowledge the education they have missed and help them to catch up. In determining an appropriate level we will take account of factors such as: the child’s SEN as set out in the EHC plan; any educational provision that was made during the period; whether additional provision now can remedy some or all of that loss.
In the circumstances I consider a payment of £4,500 would be appropriate. This is based on a payment of £1,500 per term for three terms.
Action
Within one month of the final decision the Council will: apologise to Ms X and Y for the delay in completing an annual review and not providing a suitable education or the provision in Y’s EHC Plan, and the distress and difficulties this caused. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
pay Ms X £4,500 to recognise that Y only receive a partial education and did not receive the provisions in her EHC Plan between September 2024 and July 2025.
pay Ms X £250 to recognise the avoidable distress and frustration caused by confusion regarding the interim review and the delay in holding an annual review.
The Council should provide us with evidence it has complied with the above actions.
Decision I find fault causing injustice. The Council has agreed actions to remedy injustice.
Investigator's decision on behalf of the Ombudsman