Summary: Miss X complained that the Council delayed in issuing an amended Education, Health and Care (EHC) Plan for her child, sent an incorrect draft, and failed to provide agreed educational and therapeutic support while her child was out of school. Based on the current evidence, the Council was at fault. This caused avoidable distress to Miss X and a loss of provision for her child. We have proposed recommendations to the Council.

The complaint

1. Miss X complains about delays and errors in the processing of their child, Y’s EHCP, including the failure to include essential medical information, incorrect editing of the EHCP, and a 32-week delay in updating it. Miss X also complains about the sharing of the child's data, lack of support, communication, and guidance, and the failure to implement agreed educational and therapeutic services, resulting in missed opportunities for the Y’s development. Miss X says these issues have caused emotional and financial distress, including missed job opportunities, medical appointments, and negative impacts on their own mental health and wellbeing, as well as their child’s regression. Miss X would like the Council to provide a remedy for these impacts, an apology, and improvements in the service provided.

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The Ombudsman’s role and powers

2. 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)
3. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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(i), as amended)
5. 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

6. I spoke with Miss X, and considered evidence provided by her and the Council, as well as relevant law, policy and guidance.
7. Miss X and the Council were offered an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care (EHC) Plans

8. The Children and Families Act 2014 sets out the legal framework for EHC Plans. Section 42 of the Act places a duty on councils to secure the special educational provision specified in Section F of a child’s EHC Plan.
9. The Special Educational Needs and Disability Regulations 2014 require councils to decide whether to maintain, amend or cease an EHC Plan within four weeks of an annual review meeting. Where a council decides to amend the Plan, it must send a draft amended Plan and allow the parent or young person at least 15 days to comment. The final amended Plan should then be issued within eight weeks of the draft being sent.
10. Alternative education – section 19 Education Act 1996
    Under section 19 of the Education Act 1996, councils must arrange suitable education for children who are out of school due to exclusion, illness, or other reasons. This education must be full-time or as much as the child’s condition allows. That duty arises when education is not otherwise available or accessible, and Councils must act promptly once the need is known.
11. Data protection
    The handling of personal data is governed by the UK General Data Protection Regulation and the Data Protection Act 2018. The Ombudsman does not make findings about breaches of data protection law. These matters fall within the jurisdiction of the Information Commissioner’s Office.

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What happened

12. In July 2023, Miss X contacted the Council and her child Y’s school to raise concerns about the delivery of special educational provision under Y’s Education, Health and Care (EHC) Plan. She said provision set out in Section F was not being delivered in full and asked for a change of class, a reassessment of Y’s needs, and inclusion of further medical information in the Plan. Miss X requested an emergency annual review, which the Council agreed to.
13. The emergency annual review was held in September 2023. The Council issued a decision letter stating it would consult alternative placements in line with parental preference and update the EHC Plan with new information. Between October and December 2023, the Council consulted several specialist schools. Some schools responded to say they were full or unable to meet Y’s needs, while one school offered a place for September 2024.
14. During this period, Miss X raised further concerns about Y’s wellbeing and suitability of her current school placement. She said Y was experiencing school-related anxiety and had stopped attending. She also sought clarification about the inclusion of therapy provision and medical needs in the EHC Plan.
15. In December 2023, the Council met with Miss X to discuss next steps. It agreed to explore interim tuition through external providers and said it would revise the EHC Plan to reflect Y’s current circumstances. Following the meeting, the Council sent Miss X information about two tuition services and began preparing referrals. Miss X asked for further information about the proposed tuition, including how many hours would be provided and what curriculum would be followed.
16. The Council made a referral to a tuition provider in late January 2024, and tuition began in February 2024. Around the same time, the Council issued a draft amended EHC Plan. Miss X said this version was based on an earlier, outdated version and did not reflect the agreed content, including recent medical information. The Council reviewed the situation and issued a corrected draft Plan in April 2024.
17. In March 2024, Miss X raised concerns about the inclusion of Speech and Language Therapy (SLT) and Occupational Therapy (OT) in the tuition arrangements. The Council said the tuition provider did not offer these services, and it was exploring options for securing them separately. The Council contacted several therapy providers but was unable to confirm a provider.
18. The final amended EHC Plan was issued in May 2024. Miss X disagreed with the Plan and lodged an appeal to the SEND Tribunal in August 2024. The appeal was ongoing at the time of this investigation.

Response to my enquiries

19. As part of my investigation, I made enquiries to the Council. The Council responded to my enquiries, and of note:
• It accepted there was a delay in issuing the amended EHC Plan following the annual review in September 2023. It acknowledged that the draft was not shared until February 2024 and a correct version not until April 2024. The final Plan was issued in May 2024.
• It acknowledged that the draft Plan issued in February 2024 was incorrect and did not include medical information shared by a consultant paediatrician. The Council accepted this was an error and said it had apologised to Miss X.
• It accepted there was a delay in implementing agreed tuition. Although tuition was discussed in December 2023, it did not begin until late February 2024. The Council said this was partly due to difficulties arranging a venue, as Miss X had not agreed for tuition to take place at home.
• It confirmed that although SLT and OT were included in Section F of the EHC Plan, these therapies were not delivered while Y was out of school from November 2023. The Council said it approached several providers but was unable to secure provision due to capacity issues.
• It said it offered a personal budget or directly commissioned provision to make up for missed SLT and OT sessions, and a payment of £2600 to cover missed tuition
• It acknowledged a member of staff contacted CAMHS without first seeking parental consent. It said no clinical information was shared by CAMHS, but it accepted that consent should have been obtained first and had apologised to Miss X.
• It clarified that while tuition was initially discussed in December 2023, the first session did not take place until 8 March 2024, with a second session on 12 March. Tuition resumed briefly from 24 April to 2 May 2024 but was then discontinued following a safeguarding incident
20. The Council also said it had made service improvements, including:
• Undertaking work to clear its backlog of overdue annual reviews.
• Hiring additional staff focused solely on completing annual reviews.
• Recruited and trained new staff to focus specifically on processing amendments to EHC Plans.
• Recruited a SEND Placement Commissioning and Resources Manager responsible for quality assuring therapy providers (SLT and OT), making this information available to case officers.
• Issued training to relevant staff on EOTAS and home education to improve understanding and compliance in this area.

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Analysis

Delay in issuing the amended EHC Plan

21. Following an annual review of an Education, Health and Care (EHC) Plan, a council must decide whether to maintain the Plan unchanged, amend it, or cease it. The SEND Code of Practice says this decision must be made and communicated to the parent or young person within four weeks of the review meeting.
22. If the council decides to amend the Plan, it must send the parent or young person a draft amended Plan showing the proposed changes. Case law (R (L, M and P) v Devon County Council [2022]) confirms that the final amended Plan should be issued within eight weeks of sending the draft. These statutory timescales are designed to ensure children and families receive timely decisions and can exercise their rights of appeal promptly if needed.
23. In this case, the emergency annual review took place in September 2023. The Council issued its decision letter in October 2023, saying it would amend the Plan. However, it did not send a draft amended Plan until February 2024, and Miss X said this version was based on an earlier incorrect version. The Council reviewed the issue and sent a corrected draft Plan in April 2024. It then issued the final amended Plan in May 2024. From the date of the annual review to the final Plan being issued was approximately 32 weeks.
24. The Council accepted there was a significant delay in issuing the amended EHC Plan. It acknowledged the February 2024 draft was incorrect and that the correct draft was not issued until April 2024. The Council recognised this was outside the expected statutory timescales and apologised to Miss X. It said the delay did not significantly affect the content of the Plan, but acknowledged the delay may have impacted Miss X’s ability to exercise her right of appeal in a timely way.
25. The Council did not meet its legal duty to amend the EHC Plan within the required timescales. The delay from review to final Plan was excessive and not in line with the law or the expectations set out in the SEND Code of Practice and this was fault.
26. Although the Council maintained that the content of the Plan did not change significantly, the delay nonetheless prevented Miss X from exercising her right of appeal during this period. This caused avoidable uncertainty and distress. It also meant there was no up-to-date final Plan in place while Y was out of school, which may have contributed to delays in arranging suitable provision.

Incorrect draft Plan and failure to include medical information

27. Councils must ensure that draft amended EHC Plans are accurate and reflect all relevant and up-to-date information about the child’s special educational needs, including any recent medical evidence. Where health professionals have provided new diagnostic information, this should be considered and, where appropriate, incorporated into Section C of the Plan. Councils are expected to issue the correct draft Plan to parents to allow meaningful consultation on the proposed amendments.
28. In this case, the Council sent Miss X a draft amended EHC Plan in February 2024, but this version was based on an earlier, outdated draft. It did not include recent medical information about Y’s epilepsy, which had been provided by a consultant paediatrician. Miss X raised this with the Council, and it later confirmed that the wrong version had been issued. A corrected draft Plan was sent in April 2024. The Council acknowledged this was an error. It accepted the February 2024 draft did not reflect recent updates and apologised for the mistake.
29. It was fault for the Council to send a draft Plan that omitted relevant medical information and had not been properly updated. This undermined Miss X’s ability to comment meaningfully on the proposed changes and contributed to further delay and confusion in the EHC planning process. The Council corrected this shortly after and apologised to Miss X. I consider the resolution provided and the apology provided to Miss X to be sufficient.

Failure to deliver agreed SLT and OT provision

30. Under section 42 of the Children and Families Act 2014, a Council must secure the special educational provision specified in Section F of a child’s EHC Plan. This duty continues even when a child is not attending school. If a child is out of school and not receiving the therapy support named in their Plan, the council remains responsible for arranging it through alternative means. The SEND Code of Practice is clear that provision in Section F is not optional and must be delivered unless the Plan is amended through the proper process.
31. In this case, Y’s EHC Plan included provision for Speech and Language Therapy (SLT) and Occupational Therapy (OT). Y stopped attending school in November 2023 due to anxiety, and therefore no longer accessed these services through the school setting. The Council did not arrange for the therapy to be delivered through alternative provision during this time. It said it contacted several therapy providers but was unable to secure provision due to national capacity issues. The Council acknowledged the therapy was not delivered from when Y was out of school from November 2023 and apologised for this.
32. It was fault for the Council not to secure the SLT and OT provision set out in Y’s EHC Plan once it became clear Y was no longer attending school and would not be able to access therapies through the usual setting. The Council’s statutory duty to arrange this provision remained in force. Although the Council made efforts to commission external therapy, this does not absolve it of responsibility for ensuring the provision was delivered. The failure to provide these therapies likely contributed to Y’s missed opportunities for progress and caused avoidable stress for Miss X.

Delay in implementing alternative education provision (EOTAS)

33. Councils have a legal duty under section 19 of the Education Act 1996 to arrange suitable education for children who, because of illness, exclusion, or other reasons, would not otherwise receive it. This duty arises when it is clear that suitable education is not available or accessible to the child. The education provided must be full-time, or as close to full-time as the child’s needs allow.
34. In this case, Y stopped attending school in November 2023 due to school-related anxiety. From this point, it was clear Y was not accessing suitable education, and the Council’s duty to secure alternative provision was engaged. While the Council continued to fund Y’s school place at Castlebar, this was not meaningful education for Y, who was unable to attend due to anxiety. The Ombudsman’s guidance makes clear that councils must actively consider whether education is being effectively delivered, not just whether a place is nominally available.
35. The Council met with Miss X in December 2023 and agreed to explore tuition as an interim measure. It made referrals to tuition providers, and the first session took place in March 2024. A second session followed shortly after, with further provision resuming briefly between late April and early May. However, the Council confirmed that tuition then ceased following a safeguarding incident. It said the delay in implementing a consistent programme was partly due to difficulties securing a suitable venue and a request from Miss X to change tutor. It also maintained that suitable education remained nominally available at Castlebar, although Y was not attending due to anxiety.
36. The duty under section 19 of the Education Act 1996 is to ensure that suitable education is provided when a child is unable to attend school. This duty is not removed by practical difficulties or the availability of a school place that a child cannot reasonably access. The Council accepted by December 2023 that alternative provision was needed, but despite some efforts, it did not establish a sustained or suitable education package. The sessions delivered in March and April were too limited to meet this duty in practice.
37. ‘It was fault for the Council not to ensure suitable education was provided to Y during this period. While it arranged some tuition, this was limited, inconsistently delivered, and ultimately not sustained. This resulted in a significant loss of education and contributed to the uncertainty and distress experienced by both Y and Miss X.

Inaccurate or unauthorised data sharing with CAMHS

38. Councils must handle personal information in line with data protection legislation. Where personal data is shared with third parties, particularly health professionals, it is good administrative practice to obtain the informed consent of the parent or young person, unless there is a clear and lawful basis to proceed without it.
39. In this case, the Council said an Education, Health and Care Plan Coordinator contacted CAMHS in November 2023 to request an update on a referral for Y. The officer believed Miss X had agreed to this contact. However, CAMHS later informed Miss X that consent had not been recorded and treated the matter as a data breach. The Council acknowledged it had not obtained formal consent and apologised.
40. The Ombudsman cannot determine whether there was a breach of data protection law. That is a matter for the Information Commissioner’s Office. However, the contact with CAMHS contributed to Miss X’s loss of confidence in the Council’s handling of sensitive information, and it was appropriate for the Council to apologise.

Communication, guidance, and support to Miss X

41. Councils have a general duty to communicate clearly and promptly with parents, particularly in matters relating to special educational needs where decisions can have significant effects on a child’s education and wellbeing. This includes providing clear explanations, signposting to relevant services or entitlements, and ensuring casework is managed with consistency and transparency.
42. In this case, Miss X was in frequent contact with the Council between July 2023 and May 2024. She raised concerns about the school’s delivery of provision, the inclusion of medical needs in the EHC Plan, tuition arrangements, and the process of identifying a new placement. The Council maintained regular contact with Miss X, and its chronology records show ongoing exchanges by email and telephone. However, some aspects of communication and support fell short.
43. The Council accepted that it failed to address some of Miss X’s concerns about the implementation of therapy provision and did not provide adequate signposting or clarification in relation to Speech and Language Therapy and Occupational Therapy. Miss X also raised concerns about the consultation process and what information was being shared with her child’s current school. The Council provided some responses but did not always give clear or timely explanations.
44. While much of the casework was managed with reasonable diligence, there were instances where communication lacked clarity or follow-through, contributing to Miss X’s confusion and frustration. The Council appropriately acknowledged some of these issues in its complaint responses and offered an apology. On balance, I consider there were lapses in communication and case management that amount to fault. These contributed to the wider uncertainty and distress experienced by Miss X, however I consider the apology provided to Miss X to be sufficient.

Assessment of injustice and remedy

45. Where the Ombudsman finds fault by a Council that has caused injustice to a complainant, we will consider whether the Council has taken appropriate action to remedy that injustice. Remedies may include apologies, service improvements, or financial payments to recognise loss of education, distress, uncertainty, or avoidable time and trouble. Our published guidance sets out indicative financial remedies for loss of education, typically ranging from £900 to £2,400 per school term, depending on the child’s needs, the impact, and whether any partial provision was made. Symbolic payments for missed therapy are usually lower but still appropriate where essential support was not delivered.
46. In this case, the Council accepted several areas of fault, including:
• A 32-week delay in issuing the amended EHC Plan after the annual review;
• Delays in implementing alternative education when Y was out of school from November 2023;
• Failure to secure SLT and OT provision, despite this being specified in Section F of the Plan.
47. To address these faults, the Council offered Miss X a personal budget of £2,600 to arrange tuition, a written apology, and said it would arrange therapy provision for the remainder of the year, including sessions to compensate for missed input.
48. However, Miss X no longer lives in the Council’s area and did not proceed with the personal budget or therapy arrangements. Ms X stated she was unhappy with the Council’s offer. In light of this, there remains unremedied injustice. Based on our published Guidance on Remedies:
49. Y missed a period of suitable education from November 2023 to July 2024, for which a financial remedy of £4,500 is appropriate.
50. Y also missed nine months of SLT and OT provision between November 2023 and July 2024. A further symbolic payment of £675 reflects the loss of this specialist input.
51. The delay in issuing the amended EHC Plan caused avoidable uncertainty, limited Miss X’s ability to seek a suitable placement or appeal provision, and contributed to her overall distress. The Council took 32 weeks to issue the amended Plan following the annual review, far exceeding the statutory timescale. To recognise the impact of this delay, the Council should pay Miss X £300.
52. Miss X also described a range of emotional and practical impacts, including distress, loss of trust, missed opportunities, and harm to her own wellbeing. While some of these impacts are difficult to quantify, they reflect the cumulative effect of several compounding delays and failures over a sustained period. These included uncertainty about her child’s education, lack of clarity around therapy provision, and prolonged delays in the EHC process. Taken together, these failings likely intensified the overall stress and frustration experienced by Miss X. The Council acknowledged this distress and apologised, but did not offer a separate symbolic payment for this aspect of injustice.
53. In my view, a further symbolic payment would be appropriate to recognise the avoidable uncertainty, distress, and time and trouble Miss X experienced in trying to navigate and resolve these issues. The Council has already taken steps to improve its practice, so I do not recommend further service improvements in this case.

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Agreed action

54. To remedy the injustice identified in this case, the Council has agreed to take the following action within one month of my final decision:
1. Apologise in writing to Miss X for the distress and uncertainty caused by the delay in issuing the amended EHC Plan, the incorrect draft, and the delay in arranging education and therapy provision.
2. Pay Miss X £5,475 to recognise the cumulative impact of the faults identified. This includes £4,500 for the educational provision her child missed between November 2023 and February 2024, £675 for missed therapy provision between November 2023 and May 2024, and £300 for the delay in issuing the amended EHC Plan.
3. Pay Miss X a further £200 as a symbolic payment to recognise the avoidable distress, time and trouble caused by the faults identified in this investigation.
55. The Council will complete actions a to c within one month of the Ombudsman’s final decision. The Council should provide the Ombudsman with evidence of remedy compliance.

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Decision

56. Miss X complained that the Council delayed in issuing an amended Education, Health and Care (EHC) Plan for her child, sent an incorrect draft, and failed to provide agreed educational and therapeutic support while her child was out of school. Based on the current evidence, the Council was at fault. This caused avoidable distress to Miss X and a loss of provision for her child. We have proposed recommendations to the Council.

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Investigator's decision on behalf of the Ombudsman