Summary: Miss X complained about the Council’s failure to deliver special educational provision included in Section F of her son’s (Y) Education Health and Care Plan. We found fault with the Council. This fault caused injustice to Y and Miss X. The Council has already offered some suitable remedies. The Council has also agreed to make a symbolic payment to Miss X to recognise her distress, arrange a meeting with Miss X to review Y’s education and carry out further service improvement.

The complaint

1. Miss X complained about the Council’s failure to deliver special educational provision included in Section F of Y’s Education, Health and Care (EHC) Plan. She said the Council’s failings meant Y missed support he should have had and they affected his mental health. Her own mental health was also affected by the Council’s continuing failings.

Back to top

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 unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. 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)
6. 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.
7. 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)
8. 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.
9. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended)
10. 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)
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

12. I have decided to start my investigation from the second week of September 2023, when the Upper Tribunal issued its decision. This is because in its appeal to the Upper Tribunal the Council disputed the whole Education Otherwise than in School (EOTAS) package and the Upper Tribunal suspended the effects of the SEND Tribunal decision. We would not investigate the delivery of the provision which was suspended during the appeal.
13. Miss X came to us in November 2024. As explained in paragraph three we would normally look only at the events which happened within 12 months from when the complainant came to us. In view of the Council’s delays in responding to Miss X’s complaint I have decided to investigate from September 2023, when the Upper Tribunal issued its decision.
14. Due to the continuing injustice caused by the Council’s failings and the Council revising its position about non-delivery of the EOTAS package to Y in its final complaint response in October 2025, I have investigated what happened until the end of May 2025. From the end of May 2025 Y’s educational circumstances changed and any new issues Miss X might wish to complain about would need to be raised with the Council first.

Back to top

How I considered this complaint

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

Law and guidance

Delivery of special educational provision

17. 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).
18. 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)  

EOTAS

19. A council may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school. (Children and Families Act 2014 section 61(1))

Timescales for issuing an EHC Plan after SEND appeal

20. When the SEND Tribunal tells the council to amend the special educational provision specified in an EHC Plan, the council has to issue the amended EHC Plan within five weeks of the order being made.

Council’s complaint policy

21. Stage one of the complaint process is the local resolution stage. It is dealt internally directly by the officers and managers responsible for the service. The Council acknowledges complaint within five working days and should respond within ten working days from when the acknowledgement has been received. Exceptionally, the Council may extend the timescales to respond by a further ten working days and will provide an explanation to the resident for the reasons for the extension and a clear timeframe for its response.
22. Stage two is the review or appeal stage. It is dealt with internally by complaints officers who have not been involved previously. The Council should respond within ten working days from the date of acknowledgement of stage two escalation. Exceptionally the Council may extend the timescales by further ten working days but should provide explanation and reasons to the complainant. Maximum extension for stage two response is 65 working days in complex adult or children social care cases.
23. The Council should keep complainants updated on the progress of their complaint throughout the complaint process.

What happened

Background

24. Y is 17 and has had an EHC Plan for the last few years. In 2021 he stopped attending school.
25. From June 2021 Miss X arranged and funded individual tutoring for Y from a tutoring agency (Agency 1).
26. In 2021 Miss X appealed Sections B, F and I of Y’s EHC Plan. The SEND Tribunal decided on the case in the third week of September 2022 and amended its decision in December 2022. The Council appealed the SEND Tribunal decision to the Upper Tribunal as it considered the SEND Tribunal erred by ordering EOTAS for Y.
27. The Council issued Y’s post-Tribunal EHC Plan at the end of October 2022.
28. In January 2023 the Upper Tribunal suspended the effects of the SEND Tribunal decision. In September 2023 the Upper Tribunal decided the SEND Tribunal did not err in its decision.
29. Miss X also complained to the Council about the lack of alternative provision for Y. After receiving Miss X’s complaint, in mid-February 2022 we ended our investigation because of the close links between the matters complained about and appealed.

Delivery of special educational provision

30. In September 2022 the SEND Tribunal decided Y should have his special educational provision delivered outside school through an EOTAS package, which would include:
1. 15 hours of online lessons per week;
2. 1 hour per week of mentoring through gaming;
3. 1 hour a week of physical activity;
4. 2 hours a week of developing Y’s life skills in the community;
5. 2.5 hours a week of dyslexia specialist provision;
6. 5 hours a week of administrative time from an adult with experience of EOTAS packages and working with the children with autism;
7. 45 minutes a week of social stories and comic strips conversations;
8. 1 hour a week of social thinking skills practice by a trained adult.
31. At the end of October 2023 Miss X complained about the Council’s failure to deliver some special educational provision included in Y’s EHC Plan. She said Y had not been receiving provision described as a), d), f) above. The Council, she said, had also failed to offer maths intervention and ensure delivery of certain strategies to address Y’s sensory difficulties.
32. Following its review the Council issued Y’s EHC Plan at the beginning of February 2024.
33. In February 2024 the Council commissioned an independent SLT assessment to find out what SLT provision Y needed as part of his EOTAS package. This happened because the SLT provision already included in Y’s EHC Plan could only be delivered in the school setting.
34. At the end of March 2024 the Council issued another final EHC Plan for Y following his post-16 phase transfer. Section I of Y’s EHC Plan remained blank.

Complaint handling

35. Miss X complained about the non-delivery of special educational provision at the end of October 2023. The Council responded four weeks later.
36. After Miss X’s request to take her complaint to stage two, the Council decided to take Miss X’s complaint through the statutory children’s complaint procedure. An Investigating Officer and an Independent Person prepared their reports in June 2024. The Council sent its stage two complaint response to Miss X in the second week of October 2024, advising of her right to ask for stage three.
37. In its final stage three response to Miss X’s complaint of October 2025 the Council said that at the end of May 2025 it had been delivering the full EOTAS package included in Y’s EHC Plan. In September 2025 Y started his transition to the college. The Council:
1. recognised its failings with the delivery of Y’s EOTAS package and offered apology as well as a financial remedy consisting of:
1. £13,000 for Y’s loss of special educational provision between October 2022 and May 2025;
2. £300 for Miss X’s unnecessary time and trouble taken to complain;
3. £60 for the delay in sending the Council’s final response to Miss X’s complaint;
2. confirmed it had already refunded costs of Y’s tutoring incurred between October 2022 and October 2024 for £24,180;
3. said it would undertake some service improvements, including:
1. continuing professional development and training for the SEND staff, including updates on relevant case law;
2. monitoring of a new structure of the SEND services introduced to strengthen their quality and timeliness.

Analysis

Delivery of special educational provision

38. The Council recognised in its responses to Miss X’s complaint that it had failed to deliver all special educational provision included in Y’s EHC Plan. The Investigating Officer’s report prepared in June 2024 records the Council’s efforts to put Y’s provision in place, which were significant. Despite these efforts, including engaging in 2024 an officer to manage complex EHC Plan cases, the failings continued to the end of May 2025.
39. The Council’s failure to ensure Y received the full EOTAS package specified in his EHC Plan is fault. It caused injustice to Y as he missed provision which was necessary for him to engage with education and to develop his independence skills.
40. The Council’s failings caused significant distress to Miss X. For many months she communicated with the Council and tried to ensure Y received support in line with Section F of his EHC Plan.

Complaint handling

41. When considering Miss X’s complaint the Council significantly delayed its responses at stage two and three of the complaint process. Miss X first complained in October 2023 and she received the Council’s final response two years later.
42. The Council’s process of reviewing Miss X’s complaint was confused as it included certain elements of the children’s statutory complaint procedure. If not for the Council’s delays, this would not, however, cause injustice to Y and Miss X.
43. The Council’s delays with responding to Miss X’s complaint are fault. This fault caused injustice to Miss X as she had to wait much longer than necessary for the Council to resolve the issues she was raising. She was getting increasingly frustrated by the process and confused by the changes in the Council’s position especially regarding the outcomes of her complaint.

Remedies

44. In its final response to Miss X’s complaint of October 2025 the Council offered suitable personal and service improvement remedies listed in paragraphs 37a) and 37c) of this decision. Besides these remedies the Council should also remedy Miss X’s distress and review its complaint handling.

Back to top

Action

45. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• complete the actions offered in the Council’s final complaint response of October 2025 specified in paragraph 37a) of this decision;
• as well as the financial remedies of £13,000 for Y’s loss of special educational provision and £360 for time and trouble caused by the delays with complaint handling, pay Miss X £500 to recognise the distress caused to her by the Council’s failing to ensure delivery of Y’s full EOTAS package. The Council will pay Miss X £13,860 in total;
• arrange a meeting or a telephone call to review Y’s education since he moved to the post-16 college.

The Council will provide the evidence that this has happened.

46. We also recommend the Council within three months of the final decision:
• complete service improvement actions offered in the Council’s final complaint response of October 2025 listed in paragraph 37c) of this decision;
• review its complaint handling process to ensure timeliness of the Council’s responses.

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

Back to top

Decision

47. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

Back to top

Investigator's decision on behalf of the Ombudsman