Summary: Miss X complained about the Council’s continued failure to ensure her child Y, received therapy provision in line with their Education, Health and Care Plan. She also complained about personal budget decisions and a failure to provide Y with Free School Meals (FSM). The Council was at fault as Y missed out on therapy provision for four terms between May 2024 and July 2025. There was also fault around its FSM and personal budget decision making and it has delayed carrying out the 2025 annual review. The Council agreed to apologise, make payments and review its decision making to remedy the injustice caused to Miss X and commission the therapy provision without further delay.

The complaint

1. Miss X complained the Council failed:
1. To ensure her child, Y received therapy provision in line with their Education, Health and Care (EHC) Plan between May 2024 and July 2025.
2. Failed to ensure Y received Free School Meals during the same period.
3. Failed to properly consider her request for a personal budget and then wrongly told her to appeal to the SEND tribunal about the decision not to award her with one.
2. Miss X says the Ombudsman made a previous finding of fault for the same matter and it has caused her distress and time and trouble complaining again about the same matter. She said Y’s education and development has been negatively impacted.

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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 suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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(1), 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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How I considered this complaint

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

Relevant law and guidance

EHC Plans

9. 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.
10. 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).

SEND Tribunal

11. 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.
12. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

EOTAS (Education Otherwise Than At School)

13. Where it is agreed that a school or college is not appropriate for a child or young person with an EHC Plan the council can arrange for them to receive the specialist provision they require somewhere else. This will be set out in the EHC Plan and the council remains responsible for securing and funding that provision. This is known as EOTAS or EOTIS.

Annual Reviews

14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Where the council proposes to amend an EHC Plan following a review, 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.

Personal Budget

15. A personal budget is the estimated amount of money which would be needed to cover the cost of making the special educational provision specified in the EHC plan. Personal budgets are optional. If someone would like the Council to identify a personal budget they can make a request for it to do so.
16. Someone can receive part of the personal budget as a direct payment, so that they could commission or arrange provision in the EHC plan themselves. The direct payment must be enough to cover the cost of arranging the provision.
17. The Council can refuse to make a personal budget or make a direct payment. This decision cannot be appealed to the Tribunal but the applicant can ask the Council to formally review the decision.

Free School Meals (FSM)

18. Free school meals help disadvantaged pupils engage with and benefit from education. The primary legislation for free school meals is the Education Act 1996 (the Act). In general terms, sections 512A and 512B place a duty on maintained schools (including nurseries and pupil referral units), academies and free schools to determine if a child is eligible for free school meals and to provide those meals.
19. There is no specific provision in the Education Act 1996 for children on EOTAS to have free school meals. "Free school meals: guidance for local authorities, maintained schools, academies and free schools” (the Guidance) sets councils can provide free school meals to pupils using the power set out in section 61 of the Children and Families Act 2014 (the power to arrange special educational provision through EOTAS). The Guidance says councils should consider providing free school meals to pupils on EOTAS where:
• The pupil would meet the benefits criteria if they attended a maintained setting; and
• The meals are provided alongside education and mean the pupil can benefit fully from that education.
20. Councils must make a case-by-case decision. They should have robust systems in place to do this, which apply the law and guidance fairly and in a timely way. They should give due regard to the Human Rights Act, the European Convention on Human Rights and the public sector equality duty in coming to their decisions. We expect to see evidence of a council’s decision making and that it gave applicants reasons for its decisions.

What happened

Background

21. Miss X has a child, Y who has special educational needs and is of secondary school age. Y has an EHC Plan which outlines the specialist provision they are entitled to. The Plan states Y is educated other than at school (EOTAS).
22. Miss X had complained to us previously about issues regarding Y’s education and EHC Plan including Y not receiving some of their provision. We made a final decision in May 2024 and found fault with the Council for failing to put provision in place including therapy (Speech and Language and Occupational Therapy) provision. The Council made payments for the loss of provision and following our decision it told us it had secured this provision via direct payments. However, it later told us (see below) that these direct payments were never actioned or progressed.

May 2024 onwards

23. Y’s EHC Plan was last issued in April 2024. Section F states Y is entitled to the following provision which is relevant to this complaint:
• A Speech and Language Therapy (SALT) programme as advised by a qualified therapist for one hour a week.
• Language activities for 5-10 minutes a day.
• Music lessons- one hour a week
• Occupational therapy (OT) programme provided by an Occupational Therapist for one hour a week.
24. Miss X complained to us and the Council in mid 2024 that the therapy provision and music lessons were not in place. She further complained that Y was not receiving Free School Meals (FSM) and that the personal budget in place was not enough to cover ‘days out’ expenses. Y’s EHC Plan suggests their small group provision could be met with social days out or a small club activity. Miss X said the Council had refused to amend the personal budget and had incorrectly told her to appeal this decision to the SEND tribunal.
25. We asked the Council to provide a complaint response.
26. Records show in September 2024 Miss X emailed the Council and asked it to provide her with a larger personal budget so she could commission therapies herself. There is no evidence the Council responded to this request or actioned it.
27. The Council responded to Miss X in November 2024. It accepted continuing delays in putting the therapy provision in place for which it was sorry. The Council also accepted delays in confirming whether Y was eligible for FSM. The Council said it expected therapy provision to be in place by January 2025. It said Y was eligible for FSM however the FSM team had yet to make contact with her to make arrangements. Regarding the personal budget for ‘days out’ the Council said these expenses were not outlined in the EHC Plan but Miss X should discuss it at the next annual review which was due in February 2025.
28. The Council offered Miss X a payment of £1600 to recognise Y’s loss of therapy provision between May and December 2024. It also offered Miss X £440 (£40 per month) to acknowledge the missed FSM and £500 to acknowledge the time and trouble Miss X incurred.
29. Miss X remained unhappy and complained to us.

The Council’s response to us

30. The Council accepted it had failed to arrange therapy provision for Y since May 2024. It said despite making referrals securing this provision had not been possible. It said a previous referral following the previous Ombudsman complaint was agreed but never actioned. It blamed a shortage of therapists and a backlog. The Council said it put in a new referral in June 2025.
31. Regarding FSM the Council accepted a delay in deciding whether Y was eligible and had offered £440 to acknowledge this. However, it had since decided Y was not eligible as they do not attend a school.
32. Regarding the personal budget the Council apologised for providing Miss X with incorrect information that she should appeal to the SEND tribunal. It said it would reconsider her request for the personal budget for trips/days out.
33. The Council confirmed Y’s annual review was due in April 2025 but was yet to take place.
34. The Council confirmed that it currently has 127 children with EHC Plans who are not receiving therapy provision due to a lack of therapists in the Council area. It said it was addressing this through its accelerated SEND improvement plan and is working with NHS providers. It is currently inviting tenders to apply for the delivery of therapy services which will include advice and support for children who are Electively Home Educated and receiving EOTAS.
35. Given the above I have not made any further service improvements around the lack of therapists however I have made a recommendation for the Council to provide us with an update around this in three months’ time.

My findings

Loss of therapy provision

36. The Council has accepted it has failed to ensure Y received therapy provision as outlined in their EHC Plan since May 2024 (following our previous investigation) which is fault. There is also no evidence Y received music lessons during this period which is also fault. This meant Y has lost out on four terms worth of therapy as the injustice continued throughout the 2024/25 academic year.
37. While a lack of therapists is one reason for failing to ensure therapy was in place there were missed opportunities to put therapy in place earlier. The Council failed to action and progress a funding agreement to commission therapy after our last investigation and it failed to respond to Miss X’s personal budget request. All of this was fault and subsequently contributed to the continued failure to put Y’s therapy provision in place.

Annual review delays

38. Y’s annual review was due in April 2025 and the Council has accepted to date that this has not taken place. The delay is fault and has denied Miss X the chance to raise her concerns about provision such as ‘days out’ which the Council itself said she should raise the next review. It also means Y will start the 2025/26 academic year with and old Plan and delays Miss X’s right of appeal should she wish to use it.

FSM

39. The Council has accepted delays in making a decision around whether to award Y with FSM, which was fault. It has offered Miss X £440 to recognise the injustice that caused which is appropriate.
40. As explained in paragraphs 18-20 there is no absolute right to FSM if a child is EOTAS. The decision is essentially a discretionary one and councils can decide this on a case to case basis. However, when doing so it must apply to two stage test as outlined in paragraph 19. We expect to see evidence of a council’s decision making and that it gave applicants reasons for its decisions. The Council’s decision not to award Y FSM because they do not attend school does meet the two stage test. This rationale would mean all children on EOTAS would not receive FSM. The Council, on balance did not apply the two stage test which is fault and leaves uncertainty about the decision itself.

Personal budgets

41. The Council has accepted that it should not have referred Miss X to the Tribunal when it rejected her request for a personal budget for ‘days out’ expenses. That was fault and denied Miss X the opportunity to request a formal review of the decision.
42. As explained above the Council also failed to properly respond to her request for a personal budget for the therapy provision. I have made recommendations below to address the injustice caused by the faults around Miss X’s personal budget requests.

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Agreed action

43. Within one month of the final decision the Council agreed to:
1. Apologise to Miss X and pay her the £500 already offered to acknowledge the distress, uncertainty and time and trouble caused to her by the faults along with the £440 to acknowledge the injustice caused by the delays around the FSM decision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Miss X £2800 to recognise Y’s loss of therapy and music provision between May 2024 and July 2025.
3. Ensure Y’s therapy provision is in place for the 2025/26 academic year following the June 2025 referral. The Council should consider offering Miss X a personal budget to commission the therapy herself as an alternative.
4. Arrange and hold Y’s annual review meeting and ensure any decision letters and amended EHC Plans are issued within the statutory timescales
5. Write to Miss X and formally explain the decision not to provide Y with Free School Meals
6. Re-consider Miss X’s request for a personal budget for both ‘days out’ expenses and the therapy provision outlined in the EHC Plan.
7. Remind relevant officers that applicants cannot appeal personal budget decision to the SEND tribunal. The Council should ensure officers respond to requests in writing and provide applicants with the opportunity to request a review of the decision.
44. Within three months of the final decision the Council should provide us with an update around the tenders for the delivery of therapy provision. The update should include what progress the Council has made to reduce the number of children waiting for therapy provision and what future action it is taking to ensure therapy provision is delivered without delay.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman