Summary: Miss X complained the Council failed to provide her child, Y, with suitable Education other than at School and the provision set out in their Education, Health and Care Plan. She also complained the Council delayed in making personal transport budget and free school meal payments. The Council delayed in issuing Y’s amended Plan causing Y to miss out on their special educational needs provision. It also delayed making transport and free school meals payments to Miss X. The Council has apologised and offered Miss X a payment to recognise the impact of these faults on Y. We are satisfied with the Council’s proposed remedy.

The complaint

1. Miss X complained the Council failed to provide her child, Y, with a suitable Education other than at School (EOTAS) and the provision set out in their Education, Health and Care Plan. She also complained the Council delayed in making personal transport budget and free school meal payments. Miss X says this has caused her and Y unnecessary distress. She wants the Council to improve its EOTAS provision and compensate her and Y for the impact on Y’s education.

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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. 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)
4. 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)
5. 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)
6. 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

7. Part of Miss X’s complaint is late because it concerns council actions that happened more than 12 months before she complained to us. I have not investigated events before August 2023. It was open to Miss X to complain to us sooner about events before that date and I consider it was reasonable for her to have done so.

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How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. Miss 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

The Law

Education, Health and Care (EHC) Plans

10. 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. 
11. 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).
12. 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. 

13. 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)
14. 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.
15. 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.
16. The Council must make any changes to an EHC Plan within five weeks of a Tribunal order.

Free school meals

17. Section 512 of the Education Act 1996 places a duty on school to provide free school meals to pupils of all ages that meet the criteria.
18. Government guidance says councils should consider making equivalent food provision for children who are receiving an Education other than at School (EOTAS) under their EHC Plan.

Background

19. Miss X’s child, Y, has an Education, Health and Care (EHC) Plan. Y stopped attending school in 2022 and Y started receiving tuition from a single tutor. Y also attended equine therapy and horse-riding lessons. The Council agreed to pay for transport to these.
20. The Council carried out an interim annual review in September 2022. Miss X asked the Council for Education other than at School (EOTAS) for Y. The Council issued an amended EHC Plan in January 2023 but did not name EOTAS as Y’s provision. Miss X appealed to the Tribunal.

What happened

21. In August 2023 the Council agreed to include EOTAS in Ys EHC Plan, as part of discussions with Miss X about her appeal to the Tribunal. Miss X remained unhappy with the provision in Y’s EHC Plan and continued her appeal to the Tribunal. Y’s January 2023 EHC Plan remained in effect while Miss X pursued her appeal.
22. In September 2023 Y’s tuition timetable was three hours a day for five days a week with a single tutor. Y also attended one hour a week of equine therapy, and 45 minutes a week of horse-riding lessons.
23. Miss X complained to the Council in November 2023. She said the Council had not paid for some of her travel to Y’s equine therapy and Y’s free school meals. She also complained the Council was not ensuring Y received the provision in their EHC Plan. She said Y needed more than one tutor as their current tutor was not qualified to teach every subject at secondary level.
24. Y’s annual review took place in late November 2023. At the review Y’s tutor reported they were not a specialist in all the subjects they were teaching Y. They said Y needed subject specialists but would need to be introduced to tutors gradually. The review agreed Y could cope with a maximum of three tutors. The Council started looking for tutors.
25. The Tribunal hearing for Y’s January 2023 EHC plan took place in December 2023. On 10 January 2024 the Tribunal ordered the Council to issue an amended EHC Plan, with changes to Y’s provision. It said the Council had already agreed to EOTAS.
26. The Council’s records show it tried to secure new tutors for Y in early 2024. The Council responded to Miss X’s complaint in March 2024. It accepted errors in paying Y’s travel and free school meals and said it would correct this. It said Miss X had appealed the provision in Y’s plan and Y’s tutor was suitably qualified. It said Y was studying a range of subjects and making progress in all areas. Miss X disagreed.
27. At the start of April 2024 Y started receiving specialist Geography and Computer Science tuition from a second tutor two days a week. Y’s first tutor still delivered tuition on the other subjects, three days a week. The Council issued an amended EHC Plan on 25 April 2024. The plan named Y’s provision as EOTAS, and that Y would receive 15 hours a week tuition from suitably trained teaching staff. The Plan said the Council would monitor Y’s progress through their annual review and an Individual Education Plan.
28. Miss X asked the Council to consider her complaint at stage two of its complaint process in May 2024. She said she had not received transport payments between April and December 2023. She also gave details of individual instances where Y had still not received their free school meals payment. The Council emailed Miss X a few days later. It accepted its communication could have been better and said it had resolved the free school meals issue.
29. In July 2024 the Council held a tuition meeting. It proposed adding a third tutor from September 2024. Y’s current tutors reported Y was doing well overall but struggled with writing. Y’s English tutor suggested Y complete level one functional skills before progressing to level two.
30. The Council responded to Miss X’s stage two complaint at the same time. It accepted there had been a further delay in issuing Y’s transport payments and a delay in arranging Y’s extra tutors. It said it had monitored Y’s progress through its annual reviews, but accepted it needed to carry out more short-term reviews. It confirmed it would now review progress termly. It apologised to Miss X and offered £500 for the delay, distress and uncertainty caused and £1800 to recognise Y’s missed provision.
31. Miss X continued to complain to the Council. She said it had still not paid the transport expenses and the Council’s evaluation of Y’s progress was not satisfactory. In August 2024 the Council agreed to backdate Miss X’s transport expenses from April to December 2023. Miss X complained to the Ombudsman.
32. In response to the Ombudsman’s enquiries the Council explained changes it has made to its EOTAS oversight, including appointing dedicated staff and a review of its EOTAS policy. Since September 2024 Y has received tuition from three specialist tutors. Tutors send the Council regular progress reports and alert the Council to any emerging concerns. The Council says Y’s reports show positive engagement and progress. The Council carried out a termly review of Y’s progress in January 2025.

My findings

Y’s SEN provision

33. Miss X complained the Council failed to deliver the provision in Y’s EHC Plan. The Council issued an EHC Plan in January 2023 which Miss X appealed to the Tribunal. If someone has appealed to the Tribunal, we cannot investigate a lack of special educational provision, or alternative educational provision. I therefore cannot investigate Miss X’s complaint about Y’s provision until the Tribunal issued its order in January 2024.
34. Once the Tribunal issued its order the Council had five weeks to issue an amended EHC Plan. The Council should have issued Y’s amended Plan by 14 February 2024 but did not issue it until 25 April 2024, a delay of two months. This was fault and resulted in Y missing two months of SEN provision.
35. Y’s Plan says they should receive 15 hours a week tuition from suitably qualified tutors. By April 2024 Y was receiving tuition from two tutors, but did not receive specialist science tuition until September 2024. One of Y’s tutors had already told the Council they were not qualified to teach science. I am therefore satisfied, on balance, that Y continued to miss part of their provision until September 2024. This was fault.
36. The Council has accepted Y missed provision and offered Miss X £1800 to recognise the impact on Y, and £500 to recognise the delay, distress and uncertainty. We typically recommend between £900 and £2400 per term in recognition of lost provision. The figure can be lower when considering any educational provision made during the period and whether additional provision can remedy some or all of the loss.
37. Considering Y was receiving some tuition between April 2024 and September 2024, I am satisfied that the Council’s remedy for the missed special educational provision and delay is appropriate for injustice to Y and Miss X. This is in line with our Guidance on Remedies.
38. Miss X remains unhappy with the Council’s monitoring of Y’s progress. The Council records show that since September 2024 tutors have recorded Y’s progress after each session and the Council carried out a termly review. This is in line with our expectations. I am satisfied the Council has suitable oversight in place.

Transport payments and free school meals

39. Miss X complained the Council delayed in making personal transport budget payments for Y and arranging their free school meals. The Council accepted it delayed in making these payments. This was fault. The Council has now arranged to pay Miss X a transport payment covering April to December 2023 and has corrected the issue with free school meal payments. I am satisfied with the Council’s remedy.
40. The Council has explained the steps it is taking to resolve the failures identified. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Action

41. Within one month of the final decision the Council has agreed to repeat its offer of £500 to recognise the delay, distress and uncertainty caused to Y and Miss X and £1800 to recognise Y’s missed provision.
42. The Council should provide us with evidence it has complied with the above actions.

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Decision

43. I find fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman