Summary: Miss X complained that the Council failed to comply with statutory timescales following a Tribunal decision and did not ensure her son, Y, received the special educational provision set out in his EHCP. We have concluded our investigation with a finding of fault by the Council. These faults caused Y to miss education and support he was entitled to, and led to significant distress and uncertainty for Miss X. The Council has agreed to our recommendations and service improvements.

The complaint

1. Miss X complains the Council failed to adhere to statutory deadline following the Tribunal's ruling, delaying their son, Y’s, return to specialist education. Miss X says also complains that provision from the EHCP has either not been delivered or has not been implemented sufficiently. Miss X is seeking a remedy to acknowledge the injustice on Y and the family

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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(i), 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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How I considered this complaint

6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. Miss X and the Council were offered an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Statutory Duty to Secure EHCP Provision

8. Under the Children and Families Act 2014, section 42 places a duty on local authorities to secure the special educational provision set out in a child’s Education, Health and Care Plan (EHCP). This duty applies regardless of whether the child is attending school, and the authority must take steps to ensure the provision is arranged in full unless formally amended.

Timescales for Implementing Tribunal Decisions

9. The Special Educational Needs and Disability Regulations 2014 require local authorities to act within prescribed timescales following a decision of the First-tier Tribunal. Where the Tribunal directs amendments to an EHCP, the local authority must issue the final amended plan within five weeks of the Tribunal order (Regulation 44(2)).

Duty to Provide Education for Children Out of School

10. Where a child is out of school for reasons such as illness, exclusion or otherwise, councils have a duty under section 19 of the Education Act 1996 to make arrangements for suitable full-time education (or as much as the child’s health allows). Case law has clarified that this duty applies when a child is unable to access suitable education that is reasonably practicable. The “acid test” is whether the education provided is available and accessible to the child (R (DS) v Wolverhampton City Council [2017] EWHC 1660 (Admin)).

Guidance on EHCP Delivery and Transition Planning

11. The SEND Code of Practice (2015) provides statutory guidance to which councils must have regard. It sets out expectations that local authorities must ensure that the support detailed in an EHCP is delivered in practice (paragraphs 9.131–9.136) and that appropriate planning takes place to support transitions to new settings (paragraph 9.210).

Expectations for Oversight and Record-Keeping

12. The Ombudsman expects councils to keep clear and accurate records of decisions made, provision arranged, and the delivery of statutory services. A failure to monitor and record what provision is in place may result in a loss of educational support and contribute to distress and uncertainty for families.

Scope of investigation

13. Miss X has raised concerns about earlier periods when Y was out of education, including between June 2022 and the Tribunal’s decision in December 2023. However, these events fall outside the scope of this investigation. The SEND Tribunal has already considered whether Y’s special educational needs were being met during that time and issued a binding decision requiring changes to his EHC Plan and placement. Under section 26(6)(a) of the Local Government Act 1974, the Ombudsman cannot normally investigate a matter where the person has, or had, a right of appeal to a tribunal. In this case, the earlier issues raised are intrinsically linked to matters the Tribunal has already determined. My investigation has therefore focused on the Council’s actions following the Tribunal order, including whether it implemented the revised EHCP, delivered the required provision, and maintained appropriate oversight.

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What happened

14. Miss X appealed the contents of her son Y’s Education, Health and Care Plan (EHCP), specifically sections B, F and I. The First-tier Tribunal issued a final order in December 2023. The order directed the Council to name School B in the EHCP.
15. The Council issued the amended final EHCP on 6 February 2024.
16. At that time, Y remained on roll at School A. The school arranged alternative provision (AP) via Provider A, which the Council described as providing between 6 and 10 hours of tuition per week. This provision was in place as of March 2024.
17. Y’s EHCP included 25 hours per week of one-to-one support from a teaching assistant. The Council said this support was intended to be delivered in a mainstream school setting. The Council stated that Y did not attend School A and that the 25 hours of support were not delivered through alternative provision.
18. The EHCP also included direct speech and language therapy (SLT). The Council stated that Y did not receive this provision while out of school and that seven sessions were missed from April 2024. It said it was awaiting parental consent to resume SLT once Y began attending School B.
19. Y began transitioning to School B in the autumn term of 2024. The Council said a home visit took place as part of the transition, but Y did not engage. A further visit was scheduled.
20. Miss X raised a formal complaint with the Council in February 2024. She said the Council had not issued the amended EHCP within the statutory timeframe and had not ensured delivery of the specialist provision set out in the Plan. The Council responded under its two-stage complaints procedure. At Stage 1, the Council accepted there had been a delay in issuing the EHCP. At Stage 2, it upheld the complaint and said it would consider the impact of missed provision.

Enquiries to the Council

21. As part of my investigation, I made formal enquiries to the Council. In response, the Council said:
• It did not have adequate oversight of Y’s education provision from April 2024 onwards and could not confirm what, if any, alternative provision was in place after that date.
• It was awaiting confirmation from Provider A about when the alternative provision ended, due to Y’s disengagement.
• It confirmed that the 25 hours per week of one-to-one teaching assistant support specified in the EHCP was not delivered. The Council said this provision was intended for a mainstream school setting and was not arranged through alternative provision.
• It confirmed that seven sessions of direct speech and language therapy were missed from April 2024. The Council said catch-up provision could be arranged from September 2024, subject to parental consent.
• It did not hold a copy of the transition plan to School B and had requested this information from the school.
• It proposed a financial remedy of £630 to acknowledge the missed SLT provision.

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Analysis

Delay in Issuing the Final EHCP Following Tribunal Order

22. Miss X complained that the Council failed to issue the amended final EHCP within the statutory five-week timescale following the Tribunal order of December 2023. Under Regulation 44(2) of the Special Educational Needs and Disability Regulations 2014, the Council was required to issue the final EHCP by January 2024. In this case, the Council issued the amended final EHCP in February 2024. It accepted the 11-day delay and said this was due to internal oversight.
23. This delay breached statutory timescales. The Council accepted fault at both stages of its complaints procedure. The delay contributed to uncertainty for the family at a time when clarity and timely action were particularly important following a Tribunal outcome.
24. This was fault. The delay breached a statutory timescale and caused avoidable uncertainty.

Alternative Provision (AP) and Hours Provided

25. If a child is out of school, the Council must arrange suitable, accessible full-time education unless impractical due to health or other needs (Education Act 1996, section 19).
26. The Council stated that Y was receiving 6–10 hours per week of support via Provider A. However, Miss X explained that Provider A was not an education provider and the support involved non-specialist sessions focused on engagement, not on delivering the specialist provision outlined in Y’s EHC Plan. The Council accepted that it did not have oversight of Y’s provision from April 2024 and could not confirm what, if any, suitable education was delivered. In the absence of reliable records, I accept Miss X’s account that only three hours per week of non-specialist support were provided.
27. There is inconsistency between the Council’s and Miss X’s accounts, and no records have been provided to verify the exact level of provision that was in place. In the absence of documentation, it is not possible to confirm that Y received more than 3 hours per week.
28. This was fault. The Council failed to ensure that the education provided was aligned with Y’s EHC Plan or was suitable and accessible in line with section 19 of the Education Act 1996. Its lack of oversight from April 2024 and failure to put in place appropriate specialist education provision meant Y missed out on support he was legally entitled to.

Failure to Deliver EHCP Provision – Individual TA Support

29. Miss X said the Council failed to ensure delivery of the 25 hours of one-to-one teaching assistant support set out in Y’s EHCP. Under section 42 of the Children and Families Act 2014, the Council must secure the special educational provision set out in an EHCP.
30. The Council said the TA support was intended for delivery in a mainstream school setting and was not arranged through alternative provision. However, the Tribunal’s decision of December 2023 stated that Y required 25 hours per week of TA support ‘in any setting’, specifically to support transition after a long period out of school. The Council has not shown it made any arrangements to deliver this TA support, nor did it formally amend or substitute it. This failure meant a key element of Y’s EHCP was not delivered. The Council accepted it lacked oversight.
31. The Council confirmed this TA provision was not delivered through Provider A, the alternative provider, and has not evidenced that any substitute or equivalent support was provided. It stated that Y was receiving between 6 and 10 hours per week of AP from Provider A, but Miss X says only 3 hours were actually delivered. The Council has not provided clear records to verify the actual level of provision.
32. The Council has not shown that it arranged or substituted the required TA support once Y became unable to attend school. There is no evidence this support was formally amended or replaced with an agreed alternative. This represents a failure to deliver a key element of Y’s EHCP.
33. This was fault. The Council failed to secure the TA provision and did not take adequate steps to ensure Y’s needs were met in another way. This likely caused educational disadvantage to Y and uncertainty and frustration for Miss X.

Speech and Language Therapy (SLT) Not Delivered

34. Miss X said the Council failed to ensure delivery of the SLT provision specified in Y’s EHCP. The Council confirmed seven SLT sessions were missed from April 2024. It said SLT was not provided while Y was out of school and that consent was required to restart therapy. It proposed a financial remedy and offered catch-up provision from September 2024, subject to parental consent.
35. The lack of an education placement does not exempt the Council from securing SLT provision. There is no evidence that interim or alternative arrangements were explored or put in place to meet this need. The missed SLT represents a loss of specialist support that was required under the EHCP.
36. This was fault. The Council failed to secure provision required by Y’s EHCP. Miss X said Y had not received any SALT since June 2022, and that the Council did not seek parental consent to resume therapy until November 2024. The Council has not provided evidence that any SLT support was delivered before April 2024. This caused a loss of support for Y and added to the uncertainty experienced by the family.

Transition Planning to New School

37. The Tribunal decision had warned that transition would likely fail if Y’s needs, including toileting and incontinence, were not planned for. There is no evidence the Council arranged support for these needs. The lack of appropriate planning contributed to the breakdown of Y’s placement at School B
38. Miss X raised concerns about the lack of planning and delay in Y’s transition to School B. The SEND Code of Practice expects local authorities to plan effectively for transitions to new placements and to involve parents in this process.
39. The Council said School B conducted a home visit, but Y did not engage and that a further visit was arranged. The Council could not provide a copy of the transition plan and said it had requested this from the school. There is no evidence of a clear, documented transition plan or how Miss X was involved in it.
40. The Council has not demonstrated that it maintained oversight of the transition or ensured a structured plan was in place. While some difficulties were due to Y’s disengagement, the Council remained responsible for coordinating the transition and ensuring the Plan could be implemented.
41. This was fault. The absence of a documented plan and lack of oversight likely caused delay in the placement and increased uncertainty for the family.

Council Oversight and Record-Keeping

42. Throughout the period under investigation, the Council failed to maintain adequate oversight of Y’s educational provision. It was unable to confirm what, if any, provision was delivered to meet key aspects of the EHCP, including specialist TA support and the level of alternative provision arranged through Provider A.
43. The Council accepted it lacked oversight from April 2024 and has not provided sufficient records to account for the provision before that date. This is a serious failing. Councils must be able to demonstrate how they are discharging their legal duties under section 42 of the Children and Families Act 2014 and section 19 of the Education Act 1996. The lack of accurate record-keeping has compounded the uncertainty for Miss X and makes it difficult to assess the full extent of missed provision or support for Y.

Findings

44. My investigation has found that the Council failed to meet its statutory and legal obligations following the Tribunal order of 19 December 2023. It did not issue the amended final EHCP within the required five-week timescale. It failed to secure the special educational provision set out in the EHCP, including 25 hours of one-to-one support and speech and language therapy. The Council did not ensure suitable alternative education was in place while Y was out of school and, from April 2024 onwards, it lacked oversight of what, if any, provision was being delivered. It also failed to maintain accurate records and could not provide key documents such as a transition plan for Y’s new school.
45. The Council has accepted some of these faults. It acknowledged the delay in issuing the EHCP, that speech and language therapy was missed, and that it had no oversight of provision from April 2024. It has not provided any evidence to show the required TA support was delivered or adapted appropriately. There is no indication that the Council took adequate steps to monitor or coordinate Y’s education during this period.
46. These faults resulted in significant injustice. Y missed out on specialist provision and appropriate education for an extended period. Miss X experienced distress, frustration, and ongoing uncertainty, particularly following the outcome of a Tribunal intended to resolve these matters.
47. Miss X continues to raise concerns about the Council’s actions after Y began at his new school, including alleged failures in provision and EHCP management. However, these concerns were not within the scope of this investigation, which focused on events following the Tribunal order up to Y’s transition to school in autumn 2024.

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Agreed action

48. To remedy the injustice identified in this complaint and to help prevent recurrence, the Council will:
1. Provide Miss X with an apology for the faults identified in this complaint, including delay in issuing the amended EHCP, failure to secure provision in line with the EHCP, missed SLT, and lack of oversight. The apology should be in line with the Ombudsman’s Guidance on Remedies.
2. Pay Miss X £1,800 to acknowledge the educational provision missed between January and July 2024. This reflects the lack of verified TA support and specialist provision required by Y’s EHCP.
3. Pay Miss X £630, as proposed by the Council, to acknowledge missed SLT provision and the disruption to Y’s special educational needs support. The Council has also said that catch-up SLT provision can be arranged, if not already arranged. It should ensure this offer is clearly communicated as appropriate.
4. Pay Miss X a further £300 to recognise the frustration, uncertainty, and time and trouble caused by the Council’s poor communication and lack of case oversight.
5. Review its procedures to ensure appropriate oversight is maintained where children are out of school. The review should demonstrate evidence of:
1. Clear allocation of case responsibility, including continuity during staff absence;
2. Regular monitoring and adequate record keeping of provision arranged outside of school settings;
3. Mechanisms to identify and respond promptly where provision in an EHCP is not being delivered.
49. The Council will complete actions a-d within one month of the Ombudsman’s final decision and actions e within two months. It will provide evidence of compliance.

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Decision

50. We have concluded our investigation and found fault by the Council. These faults caused Y to miss education and support he was entitled to, and led to significant distress and uncertainty for Miss X. The Council has agreed to our recommendations and service improvements.

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Investigator's decision on behalf of the Ombudsman