Summary: Mrs X complained the Council failed to provide her son with a full-time education and the provision in his Education, Health and Care Plan. She also says the Council’s communication about Education, Otherwise Than At School provision for her son was poor. We find the Council was at fault for how it handled Mrs X’s son’s education and its failure to provide him with the provision in his Education, Health and Care Plan. It was also at fault for its communication with Mrs X. These faults caused distress and upset. Mrs X’s son missed education and provision. The Council has agreed to apologise to Mrs X, make financial payments and provide training to its staff.

The complaint

1. Mrs X complained the Council failed to provide her son, Y, with a full-time education and the provision in his Education, Health and Care (EHC) Plan. She also says the Council’s communication about Education, Otherwise Than At School (EOTAS) provision for Y was poor.
2. Mrs X says the Council’s faults caused significant distress and anxiety for the whole family. She also says it has caused financial hardship, and Y has missed out on a significant amount of education and provision.

Back to top

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 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)
5. 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.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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)

Back to top

What I have and have not investigated

8. I have investigated matters from September 2023 to October 2024. I have not investigated matters before September 2023 as they are late, and I am satisfied Mrs X could have bought her earlier concerns to us sooner. However, I will refer to matters before September 2023 for contextual purposes.

Back to top

How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Special educational needs

11. 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. 
12. 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)  
13. 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. 

Reviewing EHC Plans

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. 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. The process is only complete when the council issues its decision to amend, maintain or discontinue 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) 
15. 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.

Alternative provision

16. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative provision.
17. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Personal Budget

18. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

What happened

19. This chronology provides an overview of key events and does not detail everything that happened.
20. Y has special educational needs and an EHC Plan. He stopped attending school (School X) in October 2022.
21. The Council arranged some limited online tuition for Y from a provider (Provider A) which he received from June 2023 onwards. This stopped in July and started again for two weeks in October.
22. The Council sent several consultation letters to potential schools for Y in September. The schools responded and said they could not meet Y’s needs.
23. School X arranged an annual review of Y’s EHC Plan in November. An officer from the Council attended. Mrs X said she was unhappy about the time it was taking to find Y a new school. She also said Y was not receiving any of the provision in his EHC Plan.
24. The Council made a request for a change of placement for Y from School X to EOTAS in mid-November.
25. The Council emailed Mrs X in late November. It said the panel had agreed to an EOTAS package. It said she needed to provide a proposed personal budget detailing how Y would meet the outcomes in his EHC Plan.
26. Mrs X provided her proposed costings for the personal budget to the Council. The Council responded and confirmed it had sent her costings to panel.
27. The panel agreed to EOTAS in early January 2024.
28. The panel retracted its decision to provide Y with EOTAS in February because it did not have clear evidence. It recommended that Y should receive tuition at a provider (Provider B) and for him to come off School X’s roll. It also recommended for officers to look for another placement for Y to start in September.
29. The Council commissioned 15 hours per week for Y at Provider B. The tuition started in mid-April. The tutor decided after six sessions they did not wish to continue tutoring Y. Provider B said it would look for another tutor for Y.
30. A new tutor from Provider B started working with Y in June.
31. Mrs X emailed the Council in July. She provided some costings and invoices for the educational provision that she had arranged for Y. She said Y was only receiving three hours of tuition per day. Therefore, she had to fill the gaps. The panel decided not to reimburse Mrs X the fees she had paid.
32. The Council sent several consultations to different schools in mid-July. The schools responded and said they could not meet Y’s needs.
33. The Council wrote to Mrs X in late July about the annual review held in November 2023. It provided her with a copy of Y’s amended EHC Plan and asked for her comments.
34. Mrs X complained to the Council in mid-September about how it was handling Y’s education. She said the Council had agreed to an EOTAS package, but it then changed its mind. She said she had paid £2,585 for Y to receive provision but the Council had refused to reimburse her. She said it was unacceptable Y was only receiving a part-time education. She said its failures had caused distress and upset to the family.
35. Mrs X and Y moved out of the Council’s area in October.
36. The Council responded to Mrs X’s complaint in January 2025. It said the panel retracted the decision to provide EOTAS due to unclear evidence. It decided to provide provision through Provider B. This replaced the need for a personal budget. It apologised it failed to explain this. It said it could not reimburse Mrs X the money she paid to educate Y as it had not provided prior written approval for her to source the provision. It considered 15 hours per week was appropriate for Y as 1:1 tuition is more intensive than classroom-based learning. Finally, it apologised for the inconsistent communication and the distress this caused.
37. Mrs X referred her complaint to stage two of the Council’s complaints procedure. She said tuition at Provider B was inconsistent. She said it had failed to provide Y with the provision in his EHC Plan. She said she took the drastic decision to move to another area because of the Council’s constant failures.
38. The Council issued its final response to Mrs X’s complaint. It acknowledged the tuition from Provider B was not as extensive as it should have been, and there was a lack of therapy provision. It said it regretted it did not find Y a suitable school placement and it recognised the challenges this caused.

Back to top

Analysis

39. Y received limited and inconsistent education from September 2023 to October 2024. During this time, there were periods when the Council failed to provide any education for Y. This is fault. Mrs X took ownership and the responsibility of providing Y with some education. However, this was limited and was not equivalent to a full-time education. The Council failed to fulfil its duty under section 19 of the Education 1996 to provide Y with a suitable education.
40. The Council also had a duty to provide Y with the provision in his EHC Plan. Section F of the Plan said, among other things, Y needed a targeted speech and language (SALT) programme, sensory diet activities and emotional literacy activities. The Council failed to provide this provision. Mrs X paid for Y to receive SALT sessions from November 2023 to July 2024. She also paid for football training to try and address Y’s sensory needs.
41. The Council took eight months to amend Y’s EHC Plan after the annual review in November 2023. This is not in line with the Regulations which state councils must issue an amended EHC Plan within four weeks of the review meeting and issue the final amended EHC Plan within a further eight weeks. The Council failed to finalise the draft EHC Plan it issued in late July 2024.
42. The Council told Mrs X in November 2023 the panel had approved the EOTAS package. This was the wrong information as the panel had not received any details of the package and so therefore could not have approved it.
43. The Council also failed to tell Mrs X in February 2024 that the panel had decided an EOTAS package was no longer appropriate. It did not tell her this until several months later.
44. The Council delayed consulting with schools for Y. It sent the consultations in July 2024, even though the panel recommended in February 2024 the team should look for a school for Y to start in September 2024. Consulting two months before the new academic term was far too late.
45. The Council’s faults have caused Y a significant injustice. He was without the education and specialist provision he was legally entitled to. Children have a right to an effective education and time they miss is difficult to replace later.
46. The Council’s faults have also caused Mrs X a significant injustice. She took responsibility for finding suitable provision for Y and facilitating his education which placed a significant burden on her. She was caused frustration and distress by the Council’s poor communication and that Y did not receive what he was entitled to. The Council’s failures to follow statutory timescales after Y’s annual review also meant she was deprived of her appeal rights to the Tribunal.
47. The Council accepted it was at fault when it responded to my enquiries. It offered to pay £2,600 to reflect Y’s missed education and provision from September 2023 to October 2024. It also offered to apologise to Mrs X, pay her £500 for her distress, anxiety and inconvenience and reimburse her £2,585 (the money she spent educating Y). Finally, it said it would deliver training to staff on their duties under section 19 of the Education Act 1996 and section 61 of the Children and Families Act (EOTAS provision).
48. I welcome the Council’s offers and its acceptance of fault. I agree it should apologise to Mrs X, pay her £500 and reimburse the money she paid educating Y. This is in line with our guidance on remedies. I also agree with its suggestion to implement training to prevent a recurrent of the fault in this case. However, I recommend a higher payment for Y’s missed provision and education which is more reflective of his injustice.

Back to top

Action

49. By 11 November 2025 the Council has agreed to:

• Apologise to Mrs X for the injustice caused by fault in this statement.
• Pay Mrs X £500 for her distress, inconvenience, upset and deprived appeal rights.
• Pay Mrs X £4,700 to reflect Y’s lost education and provision from September 2023 to October 2024. We recommend Mrs X uses this for Y’s educational benefit.
• Reimburse Mrs X £2,585 which is she money she spent educating Y (on receipt of copy invoices from Mrs X).

50. By 9 January 2026 the Council has agreed to:

• Provide training to relevant staff on the Council’s duties under section 19 of the Education Act 1996 and section 61 of the Children and Families Act.

51. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

52. There was fault by the Council, which caused Mrs X and Y an injustice. The Council has agreed to my recommendations and so I have completed by investigation.

Back to top

Investigator's decision on behalf of the Ombudsman