Summary: There was fault by the Council. It did not send a final Education, Health and Care Plan in time for a parent to appeal to the SEND tribunal. When the Council became aware that a child was not attending the setting named in the Plan, no action was taken to ensure the provision in the Plan was delivered as the Council promised in its official complaint response. An apology, payment and review of procedures remedies the injustice from the loss of education to the child and distress to the parent.

The complaint.

1. The complainant, who I shall call Mrs X, complains the Council did not send her a copy of the EHC Plan after informing her of the setting named in it, which meant she was unable to appeal to the SEND tribunal.
2. Mrs X complains her child, Y, has received no education from September 2025 as the school named in the EHC Plan has not admitted him.

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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 the future we may recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(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(1), 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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What I have and have not investigated

6. I have investigated events from May 2025 when Y’s school said it could no longer meet his needs until November 2025 when Mrs X could have submitted a late appeal to the SEND tribunal. I have also investigated events after this as set out in paragraph 10.
7. 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)
8. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
9. 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. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
10. In this complaint, Mrs X received the EHC Plan in November 2025 but it was dated June 2025 and so it is not certain she would have been able to submit a late appeal. The Council then said in December 2025 that it would arrange alternative provision for Y. So, even if Mrs X had been able to appeal in November 2025, I consider that I am able to separate the provision of education from 10 December 2025 from the matters appealable to the tribunal. So, I have investigated events from 10 December 2025 up to the end of July 2026 as there has been an ongoing injustice to Mrs X and Y due to the lack of educational provision. Mrs X did not exercise her appeal rights for the reasons set out above. I therefore still have discretion to investigate.

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How I considered this complaint

11. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. Mrs X 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

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 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)  
15. 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. 

16. 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) 
17. 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.
18. 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.

Key facts

19. Y has an EHC Plan. Y attended a specialist school, which admitted pupils from age 5 to 18.
20. In May 2025, the EHC Plan officer informed Mrs X that Y’s school had said it could no longer meet his needs. The email said that an annual review was planned, but asked Mrs X to think about whether tuition in the local library, a local placement or a residential placement might be an option.
21. At a review on 3 June 2025, the school confirmed it could no longer meet Y’s needs. The Council said it would consult with settings to find a new placement. The Council has said that this was a meeting rather than an annual review. The Council subsequently said that this was incorrect. The meeting was and should have been recorded as a formal annual review.
22. On 10 June 2025 the Council emailed Mrs X. the email said ‘X school can meet Y’s needs and the Council will be naming it in the EHC Plan….. I’ll follow up soon with a copy of Y’s EHC Plan naming X school’.
23. The Council has supplied a copy of an EHC Plan and covering letter dated 12 June 2025 naming X school. There is no evidence this was sent to Mrs X and Mrs X says she did not receive it. There is evidence that the Council emailed the school with the EHC Plan.
24. Mrs X emailed the Council to ask whether a school place had been found. The Council emailed Mrs X on 14 August 2025 to say ‘Y is currently attending X school. We have spoken to the setting since July and they should be getting in touch with you from September with a transition plan’.
25. Mrs X emailed the Council on 14 August to ask how she could appeal the decision to name school X. Mrs X said Y would not be attending school X.
26. Mrs X appealed to the SEND tribunal on 1 September 2025. The tribunal did not register the appeal as Mrs X did not have a copy of the EHC Plan. The tribunal sent the order to the Council.
27. On 24 October 2025 School X wrote to Mrs X to say that it had not yet processed the admission for Y as the school had not formally responded to say it was able to meet Y’s needs.
28. Mrs X made an official complaint to the Council on 27 October 2025 that Y did not have a school place. In response, the Council sent her a copy of the EHC Plan in November 2025. The Council has said that parents can still appeal when the appeal is outside the two months on the date the EHC Plan was sent.
29. Y has received no education since July 2025. The Council has said that it is currently working with Mrs X to secure alternative provision or tuition for Y.

My analysis

30. The Council has said there was fault, as the meeting in June 2025 was not recorded as a formal annual review. The meeting had the paperwork of an annual review but then the Council said that it was just a meeting. The EHC Plan was amended without a draft being sent to Mrs X and the final plan was not initially sent to Mrs X to enable her to appeal.
31. The Council named a school in the EHC Plan but there is no evidence Mrs X was informed of this until August 2025. Mrs X tried to appeal the Council’s decision but was unable to do so as she says the EHC Plan and covering letter was not sent to her in June 2025. When the EHC Plan was sent to Mrs X in November, Mrs X thought it was too late to appeal. The Council’s view is Mrs X could have submitted a late appeal, but there is no certainty that this would have been allowed.
32. The Council is aware that Y has not attended school for a year. Yet, it has not held an emergency review of the EHC Plan or put in place alternative provision/tuition. In its response to Mrs X’s official complaint the Council said on 10 December 2025 ‘the case has now been handed over to our alternative pathways team, who will explore options for setting up bespoke education …. And they will be in touch with your shortly to discuss next steps’. No alternative provision was put in place.
33. I have not seen any evidence that a place is available for Y at school X. The school told the Council Y has not been admitted.
34. The Council has said that Mrs X has refused tuition for Y. While it is clear that Mrs X prefers a school placement for Y, I cannot see that any tuition has been organised for Y, although it has been mentioned as an option in emails. There is a file note from April 2026 which says ‘Mrs X doesn’t want home tutoring and is concerned alternative provision is not right for Y’. I can see the Council offered to arrange interim tuition on 15 April 2026 while it reconsulted with settings. The Council offered interim tuition again on 9 June 2026. In an email from July 2026, the Council mentioned alternative provision/tuition starting in September 2026. So, while the Council has emailed to suggest tuition, it has not arranged a tuition company or a place for sessions to take place. So, this, along with the school place, does not seem to have not been available to Y.
35. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
36. I consider there has been service failure by the Council. Y did not receive the provision in Section F of his EHC Plan for one year. The Council was aware that they were not attending the school placement but did not act on the knowledge to either consider attendance proceedings, consider if a place was available and accessible or put in place alternative provision. Mrs X wanted a school place for Y, but this should not stop the Council arranging interim tuition, which it said it would do in December 2025. The injustice to the family has been compounded by the failure to send Mrs X a copy of the EHC Plan in time for her to appeal to the SEND tribunal.
37. Our guidance on remedies says ‘where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the harm caused by that loss. The figure should be based on the impact on the child. In this case, the impact on Y was substantial as he missed an entire year of secondary school education so I consider the maximum remedy is appropriate, of £2400 for the 2 and a half terms I am able to investigate. (The period from November to 10 December 2025 is out of jurisdiction for the reasons explained above). I also propose a payment of £250 to Mrs X, to remedy her distress at her appeal to the SEND tribunal being unable to be registered as the Council had not sent her a copy of the EHC Plan.
38. In addition to this, the Council should hold an annual review and issue a final EHC Plan within legal timescales to ensure that Mrs X now has a right of appeal to the SEND tribunal. We have already made a service improvement recommendation to address the issues identified so I won’t repeat it for this case but will monitor progress through any future cases we receive.

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Action

39. Within one month of the date of the decision on this complaint the Council will:
• Apologise to Mrs X and Y. 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 Mrs X £6250.
40. Within two months of the date of the decision on this complaint the Council should:
• Arrange an annual review meeting (if it has not already done so).
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. I have completed my investigation and I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman