Summary: Ms Z complained on behalf of a child’s parents about the Council’s failure to provide their child, Y, with the provision in his Education, Health and Care Plan and its delays with completing the annual review of Y’s Plan. Ms Z also complained the Council failed to update its records with the correct contact details for Y’s parents. There was fault by the Council which caused injustice to Y and his parents. The Council will take action to remedy the injustice caused.

The complaint

1. Ms Z complained on behalf of Y’s parents. Ms Z said the Council:
1. did not update its system and records with the correct email addresses for Y’s parents after the Ombudsman’s investigation findings on their previous complaint.
2. did not provide Y with the provision in his Education, Health and Care (EHC) Plan from September 2024
3. delayed completing the annual review of Y’s EHC Plan
4. delayed completing a sensory integration assessment for Y.
2. Ms Z said the matter significantly affected Y as he lost out on suitable education and provision and he was left without a school placement over an extended period. Ms Z also said the matter caused significant distress to Y’s parents and it seriously limited their family life.

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The Ombudsman’s role and powers

3. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
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 courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
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 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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What I have and have not investigated

9. The Ombudsman investigated Y’s parents’ previous complaint up to August 2024. So, my investigation into this complaint will start from September 2024.
10. The Council issued Y’s final EHC Plan in March 2025 and subsequently issued an amended final Plan in June 2025. Although Y’s parents’ right of appeal to the Tribunal was engaged in March 2025 when the initial final Plan was issued, I have exercised discretion to extend my investigation to June 2025. This is because the Council continued to actively consult with placements and engaged with Y’s parents, so we consider it reasonable for them to wait to see if the amended final EHC Plan would resolve their concerns.
11. Therefore, I have investigated matters from September 2024 to June 2025. This covers the period from when the Council’s commissioned provider stopped providing Y with tuition to when the Council issued Y’s final amended EHC Plan and when Y’s parents made an appeal to the Tribunal about the content of the final Plan.

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How I considered this complaint

12. I considered evidence provided by Ms Z and the Council as well as relevant law, policy and guidance.
13. Ms Z 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

Education, Health and Care Plans

14. 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.
15. The council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person (section 42 of the Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
16. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The review process includes a review meeting, and the subsequent decision, which have appeal rights.
17. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan. Where the decision is to amend the EHC Plan, the council must then issue any final amended Plan within eight weeks of the ‘amendment notice’. Therefore, a final EHC Plan must be issued within 12 weeks of the review meeting.
18. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final Plan is issued.
19. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal.
20. 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). The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.

Alternative Provision

21. Section 19 of the Education Act 1996 says that councils 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.
22. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
23. 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.
24. If a child has an 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.
25. Councils should also think about the steps needed to reintegrate the child back into their usual school setting, through ongoing conversations with relevant professionals and the parents.

Background

26. Y has special educational needs (SEN) and he has an Education, Health and Care (EHC) Plan. Y attended School 1.
27. Some of the provisions set out in Y’s final EHC Plan which was issued before 2024 included:
1. access to a child-led experiential and play-based specialist learning environment where he can explore and discover with support from a high ratio of staff.
2. planned activities with clear routines that incorporate modelling, praise and the inclusion of one or two peers who he can practice taking turns with.
3. a key adult (either via one-to-one intervention or within lessons) should support Y to regulate his feelings.
4. specific, planned opportunities by means of individual and small group experiences to develop social language and play skills, with both adults and other children in the learning environment.
28. Y was permanently excluded from School 1 in early 2024 and the Council commissioned Provider 1 to deliver 1:1 home tuition to Y from February 2024 to July 2024.
29. Y’s parents previously made a complaint to the Ombudsman. In our decision statement issued on 1 May 2025, one of our findings was that the Council sent its decision letter to amend Y’s EHC Plan and a draft Plan to a wrong email address for Y’s parents. They did not receive either document. This was fault. We recommended that the Council should:

• ensure it holds the correct contact details for parents on its system and communicate with them in a timely manner. This is to make sure relevant documents of their children’s Education, Health and Care Plan annual reviews are correctly issued to them, and they are kept updated about their children’s cases.

Key events

30. In September 2024, Provider 1 stopped delivering home tuition to Y. The Council said this was because Y’s parents requested a different tutor, but Provider 1 did not have another tutor who could meet Y’s needs.
31. In mid-September, the Council recommended a sensory integration assessment to be completed for Y to assess his sensory processing needs. This was to form part of the information for the review of Y’s EHC Plan.
32. On 20 September, the Council sent an email to Y’s parents and Ms Z. The email explained the reasons Provider 1 would no longer be providing Y with home tuition. The Council explained it planned to commission a new provider that would continue to home tutor Y until an annual review of Y’s EHC Plan would be completed. In the email the Council also asked Y’s parents to confirm available dates so it could arrange the annual review meeting. The Council used a wrong email address for Y’s parents.
33. On 7 October, the Council commissioned another provider (Provider 2) to deliver home tuition to Y from October 2024 to July 2025. Provider 2’s contract did not state how many tuition hours per week it was commissioned to deliver. The tuition timetable showed sessions were scheduled to be provided 3 days a week. The attendance record showed Y attended 26 sessions and he received a total of 51 tuition hours from October 2024 to May 2025.
34. Ms Z said Y was provided with 2 hours of tuition per week from October 2024.
35. Between October 2024 and May 2025, Y’s parents cancelled 26 tuition sessions with Provider 2. Some of the cancellation reasons included Y feeling unwell, his medical appointments, Y’s mother’s appointments and renovation work which was carried out at their home. Ms Z said the family home was unsuitable for Y to receive home tuition during the renovation work.
36. In mid-October, Ms Z informed the Council it had sent its 20 September email to Y’s parents using an incorrect email address. Ms Z provided the Council with the correct email addresses for Y’s parents. The Council explained it used the email address that was on Y’s EHC Plan, it apologised for the error and said it would amend its records with the correct email addresses.
37. Ms Z chased the Council for updates on when the sensory integration assessment for Y and his EHC Plan review would be completed.
38. On 13 December, an annual review of Y’s EHC Plan was completed.
39. On 27 January 2025, the Council issued its decision to amend Y’s EHC Plan and a copy of his draft Plan. The Council sent the documents to Y’s parents; it used the wrong email address. The Council did not copy Ms Z into the email.
40. On 5 February, Ms Z chased the Council for its decision letter and Y’s draft EHC Plan. Ms Z asked it to send both documents, and she provided the Council again with Y’s parents’ email addresses, but she sent an incorrect email address. The Council re-sent a copy of Y’s proposed draft EHC Plan to Ms Z.
41. The next day, Ms Z apologised to the Council for providing an incorrect email address for Y’s parents.
42. On 7 March, the Council issued Y’s final EHC Plan with no educational placement named. The Council consulted with parental preference, but no school placement was offered to Y.
43. The Council continued to make consultations with other schools.
44. The sensory integration assessment was completed for Y, and the report was issued in May.
45. In mid-May, mediation was completed in relation to the 7 March final EHC Plan and the Council agreed to make further amendments to Y’s Plan including Section I (named setting).
46. On 11 June, the Council issued Y’s final amended EHC Plan with a named educational placement (School 2). The Council sent the final Plan to Ms Z and Y’s parents using the correct email addresses.
47. The same month, Y’s parents submitted an appeal to the Tribunal against the content of Y’s final EHC Plan.
48. Subsequently, Y started attending School 2.

Complaints

49. In February 2025, Ms Z complained to the Council about its:

• failure to update its records with the correct email address for Y’s parents
• failure to provide Y with full-time education and with the provision in section F of his EHC Plan from September 2024
• delays with completing a sensory integration assessment for Y
• delays with completing Y’s EHC Plan annual review process.

50. In its complaint responses, the Council:

• said the situation with Y’s parents’ email address was regrettable but it said the conflicting instructions and email addresses it received from Ms Z contributed to the ongoing confusion. The Council said it would take steps to ensure the email addresses were consistently verified and recorded in future.
• said although Y did not receive full-time provision, he was not left without education from October 2024 to July 2025. The Council said Provider 2 informed it that Y’s parents had cancelled 26 tuition sessions.
• said Y’s final EHC Plan issued in March 2025 reflected the appropriate level of need Y required and that the final amended Plan issued in June 2025 then confirmed a school placement for Y.
• accepted and apologised for the delays with completing Y’s EHC Plan annual review process. The Council explained it was due to ongoing updates and challenges it experienced with securing an educational placement for Y.
• accepted and apologised for the delays with completing the sensory integration assessment for Y.

51. Y’s parents remained dissatisfied with the Council’s responses to their complaint, and they made a complaint to the Ombudsman. Ms Z also said the Council failed to include the outcome of Y’s sensory integration assessment into his final EHC Plan.
52. In its response to our enquiries, the Council:

• said it updated its records with the correct email addresses for Y’s parents during the Ombudsman’s investigation into their previous complaint.
• confirmed Y’s parents cancelled 26 home tuition sessions. The Council said it ensured tuition remained commissioned and available for Y from October 2024 and that it could not compel attendance where sessions are cancelled by the family.

Analysis

Y’s parents’ email addresses

53. The Council’s failure to use the correct email address for Y’s parents and its failure to update its records on several occasions was fault. But I find there was no significant injustice caused to them. This is because the Council also sent its email on 20 September 2024 and a copy of Y’s draft EHC Plan in February 2025 to Ms Z. Therefore, I find the content of the emails were safely delivered to and received by Ms Z in her capacity as a representative of Y’s parents.
54. Ms Z contributed to the confusion, but she quickly rectified this by confirming the correct email addresses for Y’s parents to the Council in February 2025.
55. The complaint about the Council using wrong email addresses for Y’s parents was first raised with the Ombudsman in a previous complaint (24006858). Further to our investigation into the matter, we made a service improvement recommendation (see paragraph 29). Subsequently, in June 2025, the Council provided the Ombudsman with evidence, and we were satisfied it had completed the recommended action to update its records with Y’s parents correct email addresses.
56. The email the Council sent to Ms Z and Y’s parents in June 2025 with a copy of Y’s final EHC Plan showed it used the correct email addresses. This confirms the Council has updated its records with Y’s parents correct email addresses and I am therefore satisfied the matter has been resolved.

Provision of full-time education and provision of section F of Y’s EHC Plan

57. The Council failed to provide Y with education and the provision in his EHC Plan from September 2024 to October 2024. This was fault.
58. From October 2024 to June 2025, the Council failed to evidence how it considered the amount of weekly tuition which would be suitable for Y. There was also no indication in Provider 2’s contract on how many hours per week the Council commissioned it to deliver, and it failed to regularly review the tuition hours to ensure the provision remained in Y’s best interests. This was fault. It caused uncertainty to Y’s parents in not knowing if the Council properly considered and commissioned the home tuition based on Y’s individual needs and in his best interests.
59. In addition to the Council’s duty under Section 19 of the Education Act, councils also have an ongoing duty to arrange the provision and support set out in section F of a child’s EHC Plan.
60. In this case, the Council remained responsible for ensuring the provision in section F of Y’s EHC Plan was arranged and provided to him. However, Provider 2’s attendance record showed Y attended 26 sessions and received a total of 51 tuition hours from October 2024 to May 2025. I am unsure how the Council satisfied itself that Y received sufficient education and the section F provision in his EHC Plan during this period. This was fault. I find the Council failed to discharge its legal duties under both Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014. And as a result, Y lost out on education and provision for this period.
61. The 26 tuition sessions cancelled by Y’s parents mitigated the injustice caused to Y. But I find that when the Council became aware the family home was undergoing some renovation work, it should have considered and offered an alternative venue to ensure Y received his tuition sessions. This was fault.

Annual review process

62. The Council should have issued its decision letter to amend Y’s EHC Plan on 7 January 2025 (4 weeks after the annual review meeting). The Council issued its decision letter on 27 January 2025. This was not in line with statutory timescale, and it was fault. But I find the slight delay caused no significant injustice to Y and his parents.
63. The Council issued Y’s final EHC Plan on 7 March 2025 with no named educational placement. The Plan was issued within the 12-week statutory timescale from the date the annual review meeting was held. This was not fault.
64. However, the Council subsequently issued an amended final EHC Plan with a named educational placement on 11 June 2025. The Council made further amendments to Y’s EHC Plan after the mediation process was completed in mid-May 2025 and after it secured a placement for Y. This is what the mediation process is intended for, and it was not fault.

Sensory integration assessment

65. The Council already accepted it delayed completing the sensory integration assessment for Y. This was fault. It meant Y was left without an assessment for approximately 8 months from the date the assessment was recommended to when the report was issued (September 2024 – May 2025). It also caused distress to Y’s parents.
66. The Council’s failure to include the outcome of Y’s sensory integration assessment into his final EHC Plan is a matter for the Tribunal and therefore is out of the Ombudsman’s jurisdiction.

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Action

67. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following actions within one month of the final decision:

• apologise in writing to Y and his parents to acknowledge the injustice caused to them by the Council’s identified faults as set out above. The apology should be in accordance with our guidance, Making an effective apology
• make a payment of £1,500 to Y’s parents to acknowledge the loss of suitable education and provision to Y caused by the Council’s failure to discharge its legal duties under Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014. This is calculated at £500 per term from September 2024 to June 2025 (taking into account mitigating factors). This payment is also in recognition of the distress and uncertainty caused to Y’s parents.

68. Within two months of the final decision:

• produce an action plan to demonstrate how the Council will meet its legal duties under Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014. This is to ensure all children of compulsory school age are provided with suitable alternative provision and that children and young people with Education, Health and Care Plans are also provided with the provision set out in section F of their Plans.

69. The Council should provide us with evidence it has complied with the above actions.

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Decision

70. I find fault by the Council causing injustice to Y and his parents. The Council has agreed actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman