The Ombudsman's final decision
Summary: Mr F complained about the Council’s handling of the Education, Health and Care (EHC) plan process for his daughter (X) and her education when she stopped attending school. We found fault by the Council for failing to adhere to the statutory timescales in the EHC plan process. It also failed to properly consider and provide X with suitable alternative provision and EHC plan provision when she was out of school. The Council will apologise and make payment to acknowledge the injustice its faults caused Mr F and X. It will also carry out service improvement recommendations.
The complaint
The complainant, Mr F, complained about the Council’s handling of his daughter’s (X) education in 2025. He said: it had failed to adhere to the Education, Health and Care (EHC) plan process for X since an annual review in April 2025. This included causing delays, providing conflicting information, naming a school outside the formal process, how it consulted with school placements, and a failure to follow professional advice; it failed to provide X with a suitable full-time education and provision in her EHC plan since June 2025 when she became unable to attend her school placement; and failed to ensure welfare was properly considered when she was unable to attend her school.
Mr F said, as a result, X had a loss of education and the family experienced distress and uncertainty. He also said they had a delay to their appeal rights and costs for professional reports.
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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) 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.
We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
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)
What I have and have not investigated I have investigated Mr F’s complaint about the Council’s handling of the EHC plan process, and X’s education and EHC plan provision. The period of my investigation is from the annual review in April 2025 until December 2025 when her final amended EHC plan was issued.
I have not investigated concern Mr F has about: the education X received from her school prior to the April 2025 annual review. This is because any concerns Mr F may have about how the school handled X’s education up to this point was for the school’s complaints process; and the school placements considered for X’s EHC plan. This is because it was for the Council to reach a view on what school, or type of school, should be listed in the plan. Any disagreements about school placements in an EHC plan can be appealed to the SEND Tribunal.
How I considered this complaint
I considered evidence provided by Mr F and Council as well as relevant law, policy and guidance.
Mr F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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 found
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 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) We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; check the provision at least annually during the EHC review process; and quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
Reviews 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) 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.
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.
If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.
Welfare Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.
What happened Mr F’s daughter (X) has an EHC plan which sets out her special educational needs, the provision she should receive, and listed her mainstream school placement (School Y).
In early 2025 Mr F raised concerns with School Y about its failures to meet X’s needs as she was struggling. This was despite X making attempts to attend the school’s special educational needs hub.
In March 2025 Mr F shared his concerns with the Council and asked for an urgent review of her EHC plan as he felt the school placement was unsuitable.
An annual review of X’s EHC plan was arranged and held in April 2025, and further discussions between the Council and Mr F took place in the following months. The Council started consulting with other mainstream school placement for X.
In early June 2025 X stopped attending school. She was assessed by the Child and Adolescent Mental Health Services (CAMHS). She had previously received its support with wellbeing, mental health support, and therapy. However, due to ongoing challenges in her school placement the support had been unsustainable. It shared with the Council: X’s diagnosis which included health conditions, significant learning difficulties and extreme anxiety; X’s anxiety was significantly heightened about her school placement and said she would benefit from a smaller setting. It said a mainstream school environment may be challenging; and X requires time to recover her mental well-being outside of her school environment which is causing her distress while she receives support. As always home-school work and support during this time is crucial as she was already struggling academically.
The Council said its view was X’s school placement was suitable and available to her, and issued appeal rights. But it agreed to consult with a hospital school, specialist schools, and mainstream schools. One mainstream school (School Z) had said it could meet her needs. All other schools consulted said they could not meet X’s needs. The Council said School Y verbally said it could continue to meet X’s needs.
In July 2025 Mr F complained to the Council. He said X had now been out of school for five weeks with no education or contact regarding her welfare. He said it was clear her school placement was unsuitable as shown in attempts at School Y, the CAMHS letter, and consultation responses received by the Council where specialist and mainstream schools had said they could not meet her needs. He said it should provide alternative provision and provision in X’s EHC plan until she could return to school in a suitable placement.
In response the Council did not uphold Mr F’s complaint. It found: X had an education available at School Y. It said she had not received her EHC plan provision as she had not attended.
It understood the CAMHS letter said she needed a break from school and would work with CAMHS regarding when she could re-engage with her education.
It had consulted with several schools, including the parental preference. It explained School Y and specialist schools had now confirmed in writing they could not meet X’s needs. However, School Z had said it could. It therefore found mainstream would be a suitable type to be listed in her EHC plan.
X was on roll with School Y, which was responsible for managing her attendance and welfare when not in school. It understood the school had not conducted weekly visits as required and had addressed the concern with the school for this to start.
The following day Mr F spoke with School Z. He also shared the CAMHS letter and other information about X. School Z immediately told the Council it could not meet X’s needs, the consultation documents it received had not shown the severity of X’s circumstances, and it would be detrimental and unethical for her to attend its school.
Mr F escalated his complaint with the Council. He said it had misrepresented the CAMHS letter as it had said X needed her education, not a break from education, and it could not support her as she was not in a suitable school environment. He also said it had wrongly named School Z outside the EHC plan process, failed to share key information with the school in the consultation process, and no amended EHC plan had been issued.
In late July 2025 shared its intention to amend X’s EHC plan with Mr F. This was to change the placement listed in her plan.
In August 2025 the Council provided its final complaint response. It did not uphold Mr F’s complaint. It explained: It did not agree it had failed to provide X with an education or her EHC plan provision. This was because School Y was available to her. It said the CAMHS letter suggested she needed a break to recover, but did not recommend a specific type of education or say she could not access education.
It had asked School Y to refer X to its Medical Outreach Service, which aims to support schools to provide education for children with complex needs. It also said tutoring or differentiated work should be requested from School Y. Any issues with provision provided by the school would be for the school’s complaints process.
School Y had since Mr F’s initial complaint conducted welfare visits. No safeguarding concerns had been received from School Y.
It had consulted appropriately with several schools and shared X’s EHC plan, the annual review, and the CAMHS letter. School Z had initially said it could meet needs but changed its view after Mr F’s contact.
It had not yet amended or listed any school in X’s EHC plan following the annual review. However, it was continuing to consult with both mainstream and specialist schools. X was currently on the waiting list with two schools and awaiting assessment with another specialist school.
In September 2025 Mr F arrange a private professional assessment of X which set out her support needs and made recommendations for the education she should receive. He shared this with the Council.
Mr F asked the Ombudsman to consider his complaint.
I understand further events has happened since Mr F’s complaint. This includes: The Council’s school placement panel considered X’s case. It decided to provide additional funding to School Y as it remained the school listed in X’s EHC plan. This was after the Medical Outreach Service has confirmed it could not support X.
School Y told Mr F the Council was insisting it could meet X’s needs. Mr F subsequently told the Council School Y was unsuitable and additional funding would not change this. He also said no education had been provided for her since September 2025.
The Council told Mr F it had not asked X to return to School Y as it cannot meet her needs, and it has not named a mainstream school in her EHC plan. However, School Y remains listed until a different school placement was found. It had contacted the school for it to arrange tutoring and would follow up on this.
The Council subsequently told Mr F School Y could meet X’s needs with additional funding, if she was well enough to attend. It understood there were barriers to this at the time. It was continuing to consult with other schools and X remained on the parental preference waiting list.
School Y and Mr F met regarding X receiving educational provision with the additional funding provided by the Council. This led to 1 hour per week provision in a community room with a teaching assistant.
Mr F continued to tell the Council X was not receiving an education or her EHC plan provision.
The Council issued X’s final amended EHC plan in December 2025. This listed Mr F’s preferred specialist school for X which she started in the final week of November 2025.
Analysis and findings The EHC plan and school consultation process I have considered whether there was fault in the Council’s handling of the EHC plan process for X.
The annual review process for X’s EHC plan started in April 2025. It was first completed in December 2025 when her final amended EHC plan was issued. While I acknowledge circumstances for X changed during the process, I have found the Council at fault. This is because: a decision must be issued whether to cease, maintain, or amend the EHC plan within four weeks of the April 2025 review. While the Council said it issued appeal rights, I have not seen evidence of this decision. It also agreed to amend the EHC plan a month later whilst consulting with other schools. An appeal was therefore not appropriate at the time for Mr F; and no draft EHC plan or final EHC plan were issued within the statutory timescales. While I acknowledge the Council struggled to find a placement which could meet X’s needs and School Z initially said it could support X, this does not change the Council’s duty to adhere to the required timescales.
I acknowledge Mr F believes the Council wrongly decided School Z should be listed in X’s EHC plan, and it provided incomplete information in the consultation process. However, I have not seen evidence of this, nor was the school listed in X’s EHC plan. I cannot consider Mr F’s disagreement about the Council considering mainstream schools as such issues can only be considered by the SEND Tribunal.
I have therefore found the Council caused delays in the statutory EHC plan process for X between June to December 2025. This caused Mr F distress and uncertainty, and a loss of appeal rights during this period.
X’s Education from June 2025 Mr F shared concerns with the Council about the education X was receiving in School Y. He said it was failing to provide enough support for her to receive an education and the provision in her EHC plan.
I have not found fault in how the Council handled this concern up until the end of May 2025. This is because the Council arranged and considered the concerns in the annual review and meeting with Mr F. It also discussed provision available to X with the school. It was satisfied with the attempts the school was making to support X, which was a decision it was entitled to make.
However, when X stopped attending school in June 2025 the Council again had a duty to consider what educational support and provision should be put in place for her to ensure she received an education.
I found the Council at fault in how it handled its alternative provision duty for X. This is because: Mr F shared the CAMHS letter in June 2025. In my view this clearly set out X’s challenges. It said School Y was impacting X and she needed time outside the school’s environment to recover, but her ongoing education was important. The Council misinterpreted the CAMHS letter to suggest X needed a break from school or education, which was not what the recommendations set out; the Council said X had not received an education or provision in her EHC plan as she was not attending school. However, X was not attending her placement due to her health as set out in the CAMHS letter. The Council therefore had a duty to consider what alternative provision should be put in place to ensure she received an education, including how specific EHC plan provision could be arranged; although the Council delegated its duty to School Y to provide X with her education, or alternative provision, the responsibility remains the Council’s. It said School Y had put in place an education offer and some provision out of school, but this was declined by Mr F. I have not seen any evidence to substantiate a suitable alternative provision offer was available to X, nor that Mr F refused alternative provision offered outside of the school. Instead, Mr F continued to make it clear School Y had offered very limited educational material and support which was also inappropriate for X; the Council was aware from Mr F, X’s views, the annual review, and the CAMHS letter that the relationship with School Y had largely broken down. In such circumstances it may be more appropriate for the Council to step in a arrange provision, or at least direct the school to ensure a suitable full-time alternative provision offer was available to X; and the Council asked School Y to make a referral to a medical school provision. However, this was inappropriate as this provision was only to support with transition back into School Y, which was no longer the sought outcome for X.
I am satisfied the Council’s fault caused X a loss of education from June 2025. This continued into the Autumn term of the 2025/26 academic year as only very limited provision was offered by School Y in October 2025 following the increase of funding by the Council.
X also had a loss of opportunity to receive some special educational needs provision set out in her EHC plan. However, I acknowledge some provision would normally only be available in a school environment.
X’s welfare from June 2025 Mr F told the Council in June 2025 School Y had not conducted welfare visits to X when she was unable to attend her placement. He also referred to safeguarding concerns.
It was School Y duty to monitor attendance and conduct welfare visits. The Council instructed School Y to complete welfare visits when Mr F brought his concerns to its attention, and visits did subsequently take place. No safeguarding concerns were raised by the school.
I have not found fault by the Council on this matter as it acted on the concerns it received.
Communication with Mr F Overall, I found the Council responded and kept in communication with Mr F. This included updates about its consultation process and responding to his complaints.
However, I found some fault by the Council for how it communicated with Mr F in October 2025. This is because it provided contradicting information about whether School Y was suitable or not for X whilst still consulting with school placements.
I am satisfied this caused Mr F some additional uncertainty about the Council’s views about the suitability of School Y and the need for a new school placement.
Action
To remedy the injustice the Council caused to Mr F and X, the Council should, within one month of the final decision: apologise in writing to Mr F to acknowledge the injustice its faults caused him and X; 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 Mr F £2,500 to acknowledge the loss of education and special educational needs provision X experienced between June to late November 2025.
pay Mr F a further £500 to acknowledge the distress and uncertainty the Council’s delayed EHC plan process and some poor communication caused, including his delayed appeal rights.
In total the Council should pay Mr F £3,000.
Within three months of the final decision the Council should also: review why the Council did not issue X’s final amended Education, Health and Care plan within statutory timescales. It should share reminders and any changes in procedures with relevant staff to ensure due process is followed.
review how it considers its alternative provision duty in line with Section 19 of the Education Act 1996. This is to: put in place appropriate processes and monitoring to ensure children, who are unable to attend their allocated school, receive a suitable and accessible education which meets their needs, including special educational needs provision set out in Education, Health and Care plans; and ensure it has clear records which evidence the educational provision offered to a child or young person by the Council, or their school placement. This should include details about provision which has been refused and the steps it intends to take to arrange other provision (if any).
The Council should provide us with evidence it has complied with the above actions.
Decision I have completed my investigation with a finding of fault by the Council. It will apologise and make payment to Mr F to acknowledge the injustice it caused. It will also carry out service improvement recommendations.
Investigator's decision on behalf of the Ombudsman