Summary: Ms X complained the Council failed to provide education in line with the EOTAS package since July 2023. The evidence shows that the Council failed to provide all the provision in Section F of the Education, Health and Care Plan for less than one term following a tribunal decision in January 2024. The Council has agreed to make a payment to recognise the loss of provision as well as the distress caused.

The complaint

1. Ms X complains the Council failed to provide education in line with the EOTAS (education other than at school) package since July 2023. In particular, that it hasn’t provided a one to one support worker, music, art and ICT lessons, and exams.
2. Ms X says her son has not received the agreed provision and it has been stressful for the whole family.

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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. 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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What I have and have not investigated

6. A SEN Tribunal issued a consent order in January 2024 and so this is the starting point for my investigation. Ms X used her right of appeal in respect of the EHC Plan issued by the Council in April 2024. I am therefore unable to investigate matters from the time Ms X’s appeal rights engaged. I note Ms X appealed not only about the institution named in Section I from September 2024 but also about the ongoing provision. I am therefore only able to look at whether the Council met its duty under Section 42 to provide the education set out in the existing EHC Plan from January to April 2024.

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• considered the relevant law, policy and guidance;
• sent my draft decision to both the Council and the complainant and considered their comments before making my final decision.

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What I found

EHC Plan 

8. 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. 

Content of an EHC Plan

9. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and or type of educational placement 

Appeal rights

10. 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)
11. 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.
12. 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.

Personal Budgets

13. 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.
14. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
15. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
16. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

Key facts

17. This section sets out the key events in this case and is not intended to be a detailed chronology.
18. Ms X’s son, Z, has a diagnosis of ADHD along with sensory processing difficulties, hearing impairment and hypermobility. Ms X appealed an EHC Plan issued in January 2023 which resulted in a consent order in January 2024 agreeing EOTAS until September 2024. In April 2024, the Council issued an EHC Plan naming a FE college from September 2024. Ms X has submitted an appeal in respect of the institution named from September 2024 as well as the current EOTAS provision.
19. The information provided indicates the Council gave notice to the providers of the EOTAS package in July 2024 in line with the earlier tribunal decision. It also identified an education provider who employed a one-to-one support worker. This worker was available throughout the summer to work with Z and help his transition. However, the provider withdrew from the process which the Council says was due to the actions and conduct of Ms X.
20. The Council found an alternative provider from January 2025. This programme was to start with a community package to build relationships before Z attended a centre. The Council says the provider was waiting for engagement from Ms X before employing a one-to-one support worker. Ms X contacted the provider in February and it indicated it would then employ the support worker. However, Z was hospitalised and so the package did not start.
21. After the tribunal decision in January 2023, Z did receive some education provision. This included equine therapy, hippotherapy, mentoring support, maths and English tutoring, gym membership and personal training sessions, swimming, snowboarding, speech and language therapy and occupational therapy. The Council made attempts to arrange other provision including art, ICT and music. This was not consistently provided as detailed below.

Provision of one-to-one support worker

22. Prior to September 2024, a one-to-one support worker should have been provided for Z. The Council says that in response to Ms X’s wishes it approached Provider A and began the process to recruit a support worker in November 2023. Interviews with several candidates were carried out but were not employed. The Council also contacted another provider but it was unable to provide a support worker.
23. Based on the information provided, it would appear that a support worker was not provided as part of Z’s EOTAS package following the tribunal decision in January 2024. This is fault as the Council has a duty to secure the provision in Part F of the ECH Plan.

Music lessons

24. Music lessons were arranged to start in April 2024. However, the tutor was unable to start due to an unexpected bereavement. Another music tutor was identified in May 2024 and contacted Ms X in June. The Council says that Ms X did not respond until 12 July but then said Z was unable to cope. The provider was unable to hold the space for Z and so no music lessons were provided.

Art lessons

25. The Council says that art sessions were arranged and commenced. However, they ended in April 2024 at Ms X’s request. The Council says that Ms X cancelled them saying the tutor did not have the correct resources and that a studio session was not appropriate for Z.

ICT lessons

26. The Council says that ICT lessons were provided until April 2024 but ended due to the health issues of the tutor. A referral was made to a new provider, but they had no tutors available. Ms X then identified a provider but it was removed from the approved provider list and so this referral did not continue. The Council made further referrals in July and October 2024 but were unsuccessful. ICT lessons began with a new tutor on 24 January 2025.

Occupational and Speech and Language Therapy

27. Ms X says Z has not received any OT or SALT since September 2024 and that recently she was advised that it can only be provided within an educational setting. As explained above, I am not considering matters after September 2024. I am aware the situation changed at this time and as the offer for the college was withdrawn. It is open to Ms X to make a separate complaint about matters from that time which would include the lack of OT and SALT.

Failure to provide exams

28. There was a commitment made in December 2023 to enter Z into some exams. The alternative education provider working with Z were coordinating exam entries for June 2024. However, the school that was to be used ceased providing external entry level maths and English exams. The Council tried to find an alternative venue but all those contacted had discontinued entry level exams. On the advice of one tutor, entry for a digital skills exam was postponed to September 2024.
29. Ms X made a formal complaint in June 2024 about the Council’s failure to provide the agreed education as set out in Section F of Z’s EHC Plan. The Council replied on 11 July, apologising for not responding within the 20 working days the procedure required.
30. The response confirms the failure to provide the one-to-one support, music lessons, art lessons and ICT lessons. It also detailed the difficulties securing the exam venue. The Council stated there had been challenges securing the necessary provision required by the EHC Plan but said officers had exerted considerable effort and it would persist in these endeavours. It concluded it would not uphold the complaint.
31. Ms X escalated the complaint to stage two of the Council’s complaint procedure. It responded on 22 October again apologising for the delay in responding. As well complaining again about the failure to provide the education required in Z’s EHC Plan, Ms X complained about the failure to provide payments to her and the refusal of a personal budget.
32. The Council’s response again accepted failure to secure the necessary provision but said it was trying to resolve the issues. It said as it was securing provision directly with providers there was no reason why a personal budget was required. It accepted an error in processing one invoice submitted by Ms X and agreed to make this payment. It concluded the Council had acted suitably in dealing with her concerns and had no further comments to make.

Analysis

33. The Council has a statutory duty to secure the specified special educational provision set out in Section F of an EHC Plan this includes when the placement is EOTAS. The Code says the provision should be in place from the date the final EHC Plan is issued. There is a five-week period for provision to be put in place following a tribunal decision.
34. The evidence shows the Council failed to provide all the required provision following the tribunal decision in January 2024. The information provided does indicate it made efforts to secure the provision and that some events affecting the delivery of the provision were outside of its control. However, this is a statutory duty and so it must provide what is specified in Section F. The failure to do this is fault.
35. Our guidance on remedies manual states that 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 impact of that loss. The figure recommended will take account of factors such as the severity of the child’s SEN and whether any educational provision was made during that time.
36. I consider Z missed out on less than one term of one-to-one support and that not all the specified education provision was delivered during this time. I have therefore recommended a payment to reflect this.
37. I also note that despite accepting it had not provided all the required provision, the Council did not uphold Ms X’s complaints meaning she had to pursue it further. It also failed to deal with both stages without delay. This caused Ms X avoidable distress and time and trouble and so I am recommending a payment to recognise this.

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Action

38. To remedy the injustice caused as a result of the fault identified above the Council will, within one month of my final decision, take the following action:
• Apologise to Ms X and Z for the fault identified. 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;
• Make Ms X a payment of £600, to be used for the benefit of Z, to recognise that the full special educational needs provision was not delivered;
• Make Ms X a symbolic payment of £300 to recognise her distress and time and trouble in pursuing the complaint; and
• The Council will remind its SEND staff of the duty to provide all the special educational needs provision set out in a child, or young persons, EHC Plan without delay and ensure the provision identified meets assessed individual need.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman