Summary: We found fault with the Council’s delays of 26 weeks outside timescales producing an amended final Education, Health and Care plan for Ms X’s child in 2025. We also found fault with the Council failing to provide Ms X’s child’s Education, Health and Care Plan provision for two full terms. The Council agreed to apologise to Ms X and make a symbolic financial payment to address the distress, frustration, delayed appeal rights and missed provision experienced by Ms X and her child.

The complaint

1. Ms X complained the Council did not issue an Education, Health and Care Plan for her child, Y, within the 20-week statutory timeframe.
2. Ms X says when the Council produced an Education, Health and Care Plan it did not send it to her by email or post.
3. Ms X says the Council did not include the most up-to-date information within the Education, Health and Care Plan when it produced this.
4. Ms X says her child has gone without suitable education and provision since 2022.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
10. 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)

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What I have and have not investigated

11. 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)
12. 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, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
13. This means, I cannot investigate matters before October 2024, when the tribunal issued a Consent Order about Ms X’s appeal. I also cannot investigate any matters related to Ms X’s appeal to the tribunal following it issuing an amended final Education, Health and Care Plan in October 2025 as she made the decision to appeal this plan in February 2026.
14. Additionally, the Council issued its final complaint response in July 2025. This means the Council has not had opportunity to consider any issues after this date. The Ombudsman must give a council opportunity to consider a complaint before it investigates such matters.
15. Any matters before Ms X’s original appeal to the tribunal, at the start of 2024, are outside the Ombudsman’s jurisdiction to investigate on time. There is no good reason to investigate matters in 2023 or before.
16. Therefore, my investigation covers the issues Ms X has experienced from October 2024 to October 2025. Given the nature of Ms X’s appeals to the SEND Tribunal, there is too significant cross-over in subject matters to enable the Ombudsman to investigate during either appeal period.

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How I considered this complaint

17. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
18. Ms X and the Council had an opportunity to comment on my draft decision before I made a final decision.

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What I found

Rules and regulations

Education, Health and Care Plan 

19. 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. 
20. There is a right of appeal to the Tribunal against a council’s decision that it is not necessary to issue a EHC Plan following an assessment.
21. During the course of a tribunal appeal, but before the hearing, a Council and appellant can agree to resolve the issues through a Consent Order. If submissions have already been issued to the tribunal, the Council must adhere to the timescales in Section 44 of the SEND Regulations following the Consent Order. This requires the Council to:
• Issue a draft EHC Plan within five weeks of the tribunal Consent Order; and
• Sent a copy of the final EHC Plan within eleven weeks of the tribunal Consent Order.
22. 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. A council may also decide to amend a child’s EHC Plan without a review meeting meaning notification of the decision to amend along with proposed amendments should occur straight away with the subsequent final EHC Plan being issued within a further eight weeks.

Section 19 duty

23. 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. This duty is only applicable to school age children up to the age of 16.

What happened

Background information

24. Ms X made an EHC Plan needs assessment request for her child, Y, to the Council in October 2022. The Council refused to issue an EHC Plan for Y following assessment in 2023. Ms X appealed this decision to the SEND tribunal.

Matters relating to this complaint

25. In September 2024, Y was not attending an educational placement and was of post-16 educational age.
26. The Council agreed to issue an EHC Plan for Y with Ms X in September 2024. The Council and Ms X presented their agreement to the tribunal to settle the appeal as a Consent Order without a hearing.
27. At the end of October 2024, the tribunal issued a Consent Order requiring the Council to produce an EHC Plan for Y.
28. In November 2024, the Council produced a draft EHC Plan for Y and sent this to Ms X by email.
29. In December 2024, the Council issued a final EHC Plan for Y to Ms X by email. The Council also provided information about Ms X’s appeal rights to the SEND tribunal. Y’s EHC plan named “Post-16 Education” in Section I without naming a specific placement and included specific educational support for Y within Section F.
30. Ms X acknowledged receipt of the final EHC Plan and requested a copy be sent by post. The Council sent this to Ms X.
31. In January 2025, Ms X told the Council she did not receive a copy of the draft EHC Plan. Ms X complained the Council based the final EHC Plan on outdated information and not the reports she submitted to the tribunal. The Council proposed a meeting with Ms X to discuss the EHC Plan.
32. The Council held the meeting with Ms X in February 2025. Following this meeting, the Council confirmed in writing that it would update Y’s EHC Plan using the new reports and produce an amended final EHC Plan.
33. In May 2025, Ms X made a formal complaint to the Council. Ms X said:
• The Council had not issued Y’s EHC Plan following the Consent Order in October 2024.
• Y had missed educational support because of the failure of the Council to issue a final EHC Plan.
• The Council told her at the start of 2025 that it would issue a final EHC Plan for Y but it had not done so.
34. The Council sent a draft EHC Plan to Ms X shortly after Ms X’s complaint. The Council issued a stage one complaint response to Ms X later in May 2025. The Council said:
• The tribunal issued a Consent Order in October 2024 detailing the Council’s agreement to issue an EHC Plan for Y.
• It sent a draft EHC Plan to Ms X in November 2024 and a final EHC Plan in December 2024.
• While Ms X may dispute the final EHC Plan, it issued a valid final EHC Plan in December 2024.
• Following the meeting in February 2025 it agreed to issue an updated EHC Plan for Y but did not issue a draft EHC Plan until May 2025. The Council acknowledged this took longer than expected.
• The reason it did not include the reports within the original EHC Plan, it produced in December 2024, was because it did not receive these reports. The Council said this final EHC Plan was appealable.
• It accepted it had failed to provide Y’s EHC Plan provision since producing the final EHC Plan and was working to put provision in place. The Council offered Ms X £1,200 for the delay in putting in place Y’s EHC Plan provision.
35. In June 2025, Ms X sought consideration of her complaint at stage two of the Council’s process. Ms X said:
• She did not receive the draft EHC Plan sent by the Council in November 2024 and said the Council must have sent this to someone else.
• The Council took away her appeal rights by not issuing the draft EHC Plan and said she could not open the letter sent in December 2024.
• The final EHC Plan the Council issued in December 2024 was not fit for purpose. Ms X said, the Council should have used the up-to-date reports when finalising the EHC Plan in December 2024.
• She has not received the draft EHC Plan the Council issued in May 2025.
• Y has been without suitable education and support for three years.
36. In July 2025, the Council approved 10 hours, rising to 15 hours, of tuition for Y to start in September 2025.
37. The Council issued a stage two response to Ms X. The Council said:
• It sent the draft EHC Plan to the email address it had on file for Ms X and there is no evidence of a data breach.
• It sent a final EHC Plan to Ms X in December 2024 with information about her appeal rights.
• It produced the EHC Plan following the Consent Order using the information from the original assessment because the Consent Order required production of an EHC Plan, not a reassessment.
• Following Ms X raising concerns about the missing reports, it held a meeting with her and agreed to issue an amended EHC Plan for Y; it sent a draft EHC Plan in May 2025.
• It upheld the complaint about lack of provision since December 2024. The Council said it is working to put in place suitable provision for Y.
• It was still considering suitable options for a post-sixteen setting for Y.
38. In August 2025, Ms X accepted payment of the £1,200 but advised she was appealing to the Ombudsman. The Council paid Ms X the £1,200.
39. The Council started to provide home tuition and support for Y in September 2025.
40. In October 2025, the Council produced an amended final EHC Plan for Y. Ms X appealed sections B, F and I of this EHC Plan in February 2026.

Analysis

Production of EHC Plan following Consent Order – Timescales

41. The Council had five weeks to produce a draft EHC Plan and eleven weeks to produce a final EHC Plan from the date the tribunal issued a Consent Order instructing the Council to produce an EHC Plan. The Council adhered to both these timescales in production of the draft and final EHC Plans. I do not find fault with the Council.

Production of EHC Plan following Consent Order – Content

42. The Consent Order issued by the tribunal required the Council to produce an EHC Plan for Y. The tribunal issued this Consent Order based on Ms X’s appeal against the Council’s decision not to issue a final EHC Plan following its assessment in 2023.
43. As explained in paragraphs 15 and 16, I am not investigating matters before October 2024, this includes the Council’s EHC needs plan assessment and what information it got then. The tribunal did not direct the Council to complete a reassessment of Y meaning the Council had no duty to get up-to-date reports of Y. The Consent Order also did not tell the Council to use any of the evidence Ms X supplied to the tribunal when producing an EHC Plan for Y.
44. The Council produced Y’s EHC Plan in December 2024 in line with the Consent Order; I do not find fault with the Council.
45. Any dispute about the content of Y’s December 2024 EHC Plan, including what reports the Council used when producing this plan, was appealable to the SEND Tribunal as the appropriate body to consider this.

Producing an amended EHC Plan

46. The Council agreed to update and send an amended EHC Plan for Y in February 2025 without the need for an annual review meeting. The Council was entitled to do this and I do not find fault.
47. When the Council told Ms X of its intent to update and amend Y’s EHC Plan it should have shared the proposed amendments with Ms X at the same time. The Council did not do this and only shared a draft EHC Plan with Ms X eleven weeks later. This eleven-week delay was fault.
48. From the date the Council sent the draft EHC Plan to Ms X, it had eight weeks to issue a final amended EHC Plan. The Council took twenty-three weeks to issue a final amended EHC Plan. This caused a delay of fifteen weeks; this delay was fault.
49. Overall, the Council delayed by twenty-six weeks in producing an amended EHC Plan for Y; this delay was fault. This fault caused Ms X distress, frustration and delayed her appeal rights to the SEND Tribunal.

Sharing EHC Plans with Ms X

50. The Council has evidenced it shared Y’s draft EHC Plans with Ms X in November 2024 and May 2025 and the final EHC Plans in December 2024 and October 2025.
51. Ms X confirmed receipt of the final EHC Plan sent by the Council in December 2024 by email when she asked for a copy to be sent by post. The Council has evidenced it sent all emails containing the draft and final EHC Plans to the same email address, which belongs to Ms X.
52. Since Ms X has confirmed receipt of at least one email issued by the Council, and the Council has evidenced it consistently sent emails to the same address, I do not find fault with the Council. If Ms X did not receive the emails sent by the Council, this is not through any fault by the Council.

Education and EHC Plan provision

53. From the start point of this investigation in October 2024, Y was of post-sixteen education age. This meant Y was not entitled to Alternative Provision of education under Section 19 and the Council therefore had no duty to provide education for Y while they were out of school. Y was also not entitled to any EHC Plan provision until the Council produced the final EHC Plan for Y in December 2024. I do not find fault with the Council for failing to provide education or support for Y from October 2024 to December 2024.
54. The Council acknowledged in its stage one complaint response it failed to provide Y’s EHC Plan provision from December 2024 up to the stage one complaint response in May 2025.
55. The Council continued to not put in place any EHC Plan provision for Y until September 2025. This is a continuation of the fault the Council accepted in its complaint response. Overall, the Council was at fault for failing to deliver Y’s EHC Plan provision for two full terms.
56. The Council’s fault meant Y went two full terms without any of the EHC Plan provision outlined in their plan. The Council has already paid Ms X £1,200 in recognition of Y’s lost EHC Plan provision from December 2024 to May 2025. I consider the Council should increase this award, and pay a further £600 to Ms X, to £1,800 as a symbolic gesture for Y’s lost provision for the two full terms.

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Action

57. Within one month of the Ombudsman’s final decision the Council agreed to:
• Provide an apology to Ms X and a symbolic payment of £350 for the distress, frustration and delayed appeal rights caused by its twenty-six week delay in amending Y’s Education, Health and Care Plan in 2025. 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.
• Provide a payment to Ms X of a further £600, in addition to the £1,200 already paid, as a symbolic gesture for the Y’s missed EHC Plan provision for two full terms from December 2024 to the end of the 2024/2025 academic year.
58. The Council should provide us with evidence it has complied with the above actions.

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Decision

59. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman