Summary: Miss B complained the Council failed to secure provision for her son, who I will refer to as C, as outlined in his Education, Health and Care (EHC) Plan, and consult with special schools. She also complained the Council’s communication with her was poor. There was fault by the Council. The Council failed to secure education and provision for C as outlined in his EHC Plan, it delayed and failed to send further school consultations as it said it would, and its communication with Miss B was poor. Because of the fault, Miss B suffered distress and frustration and C missed out on education and provision. The Council has agreed to make symbolic payments and send us evidence of a plan it says it has put in place to improve its service.

The complaint

1. Miss B complains the Council failed to:
• secure the content of her son’s, who I will refer to as C, Education, Health and Care (EHC) Plan;
• consult with special schools for C; and
• communicate with her effectively.
2. Miss B says the matter has caused her distress and impacted her mental health. She says C has also missed out on receiving the content of his EHC Plan.
3. Miss B would like the Council to deliver the content of C’s EHC Plan to him and improve its communication.

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The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. 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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

9. I have investigated matters in this case from January 2024, which is 12 months before Miss B brought her complaint to us, to August 2025, when the Council issued an updated final EHC Plan for C naming a special school. I have not investigated matters after this point, because the EHC Plan gave Miss B a right of appeal to the SEND Tribunal. If Miss B was unhappy with the EHC Plan, she could have appealed.
10. Miss B also had a right of appeal to the SEND Tribunal in January 2024 when the Council issued a final EHC Plan for C. However, I have exercised my discretion to investigate. I do not consider it was reasonable for Miss B to appeal the January 2024 EHC Plan to the SEND Tribunal. This is because the Council told her it would find a special school for C, and Miss B had a reasonable expectation it would do so.

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How I considered this complaint

11. I considered evidence provided by Miss B and the Council as well as relevant law, policy and guidance.
12. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

EHC Plan 

13. 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. 
14. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

Maintaining the EHC Plan

15. 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)  

Section 19 duty

16. 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 section 19 or alternative education provision.
17. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

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What happened

18. This is a summary of events outlining key facts, and it does not include everything that has happened in this case.
19. At the end of 2023, the SEND panel decided the provision detailed in C’s EHC Plan should be provided by a specialist setting. Following this decision, the Council issued an updated EHC Plan for C in January 2024. Section I of the EHC Plan named a mainstream setting until September 2024 and listed the type of setting as special from September 2024. The Council sent consultations to three special schools. The schools told the Council they could not provide the provision in section F of C’s EHC Plan, so could not offer him a place.
20. Miss B complained to the Council in June 2024. She told the Council it had not secured C’s section F provision. She also complained that since it had consulted with the special schools, it had not been in contact with Miss B to let her know what steps it was taking to secure this provision, or what plans it had made to educate C from September 2024 when he was due to begin secondary school.
21. In September 2024, Miss B chased the Council for an update. The Council apologised for the delay and told her the case was going to panel for a place at a special school. It told Miss B the date the Council would know the panel outcome.
22. In the Council’s stage two response to Miss B, it apologised for its poor communication and accepted it had not sent Miss B updates and did not communicate the outcome of the SEND panel to her. It also upheld Miss B’s complaint the Council had not secured education for C and acknowledged it is the Council’s duty to ensure section F provision of C’s EHC Plan is secured.
23. In April 2025, C received an offer at another special school the Council had consulted. The Council issued an amended EHC Plan for C in August 2025 naming this setting in section I. Miss B initially told the Council she did not think this setting was appropriate for C, so she did not want him to attend. Miss B has since told us C is now settled at this setting, and she is happy with the placement.

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Analysis

24. For the period I have investigated, C was receiving the section F provision detailed in his EHC Plan up to July 2024, when he finished his last year at primary school. However, the Council knew C would be leaving this setting in July 2024 and would be transferring to secondary school in September 2024. The provision in section F of C’s EHC Plan was due to be delivered at a special setting from September 2024. The Council did not secure provision for C from September 2024, as it has acknowledged. This was fault.
25. I recognise the Council was working to secure a placement for C at a special setting. But, the Council did not arrange for alternative education provision to be put in place outside of school while it was doing this. It was clear a place at a special school could not be easily found. So, the Council should have considered its section 19 duty and considered what action it could take to provide full-time education to C from September 2024, when he was due to begin secondary school, while it was attempting to secure a place at a special school. This is in addition to the section F provision as set out in C’s EHC Plan. This was fault.
26. The Council’s failure to secure section F and education provision for C from September 2024 caused an injustice to C. He missed out on education and provision for three full terms, the equivalent to one school year – from September 2024 to July 2025. This was also a key time in C’s education, as he was transferring to secondary school. I have made a recommendation below to reflect this.
27. There were also delays by the Council. For two of the schools the Council consulted with in January 2024, the schools responded to the Council in January and February 2024. But, the panel was not held until October 2024, and a re-submission to these schools was not submitted by the Council until early 2025. The Council also did not consult with other schools as it said it would. This was fault.
28. Further, the Council’s communication with Miss B was poor. It did not regularly update Miss B with its progress as it told her it would, including sharing the panel outcome with her. This meant Miss B continued to chase the Council for updates. The Council has apologised to Miss B for its level of communication and has acknowledged the delays. The poor communication and delays in the consultation process caused distress and frustration to Miss B. I have made a recommendation below to reflect this.
29. The Council says the delays and communication difficulties were due to significant service changes in the SEND assessment service, including changes to the staffing structure, IT systems and processes. It says while these changes were made to make significant improvements to the service going forward, during the transitional period, it experienced delays. The Council apologises for this and says it has since set up an independent improvement and assurance board which it meets with monthly, with a plan in place to improve its service. We have also made service improvement recommendations on other cases where we have identified similar fault by the Council. I have therefore not made any further service improvement recommendations. I have also not recommended the Council apologise to Miss B, as it has already done so in its own complaint response which I consider to be appropriate.
30. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
31. When a young person has missed education because of fault by a council, we may recommend the council make a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £900 and £2,400 per term to acknowledge the impact of that loss.
32. In determining an appropriate level we will take account of factors such as:
• The severity of the young person’s SEND 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; and
• Whether the period affected was a significant one in a young person’s school career, for example the first year of compulsory education, the transfer to secondary school or the period preparing for public exams.
33. Given C’s age, the stage of education (due to transfer to secondary school), and the level of education and provision that was provided, I consider a payment of £2,000 per term of missed provision would be appropriate. I have made a recommendation below outlining the total payment the Council will pay to remedy the education and provision C missed.

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Action

34. To remedy the outstanding injustice caused to Miss B and C by the fault I have identified, the Council will take the following actions within four weeks of my final decision:
• Pay Miss B £6,000 to acknowledge the education and provision C missed caused by the Council’s failure to secure section F and education provision for C. This has been calculated as £2,000 per term of missed provision, as outlined in paragraph 33, for three terms from September 2024 when C was due to start secondary school at a special placement, to the end of that school year in July 2025.
• Pay Miss B £500 to acknowledge the distress and frustration caused to her by the Council’s delays, failure to send further school consultations, and poor communication.
35. Within three months, the Council will also send us evidence of the plan it says it has introduced to help drive improvement within its SEND service.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I uphold Miss B’s complaint and find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman