Summary: There was fault and delay by the Council in implementing a Tribunal decision and securing provision in an Education, Health and Care Plan. As a result, a child missed out on provision for many months. The Council has agreed to apologise, make symbolic payments and carry out service improvements.

The complaint

1. A representative (Ms X) complains on behalf of Ms Y and her child, Z, that the Council:
• Failed to amend Section A of Z’s Education, Health and Care (EHC) Plan.
• Failed to follow a Tribunal recommendation that Ms Y and Z receive support from children’s social care (short breaks) in Autumn 2023.
• Delayed carrying out an annual review of the EHC Plan in 2024.
• Failed to secure special education provision in the EHC Plan between January and November 2024.
• Failed to appoint or provide access to a coordinator or case manager capable of progressing the EHC Plan package.
• Failed to provide free school meals or vouchers when Z was educated otherwise than at school under s.61 Children and Families Act 2014.
2. Ms X says because of the alleged fault:
• Z missed 32 weeks of education including therapies
• The EHC Plan did not reflect current parental views
• The family missed out on respite / short breaks recommended by the Tribunal
• Ms Y incurred over £5000 in advocacy costs.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
8. 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)

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How I considered this complaint

9. I considered evidence provided by Ms X/Ms Y and the Council as well as relevant law, policy and guidance.
10. Ms X/ Ms Y 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

Chronology of key events

11. The Council maintained an EHC Plan for Z. Ms Y appealed this to the Tribunal following a reassessment of need. The appeal was heard in November 2023. This was an ‘extended appeal’ that included social care as well as special education.
12. In September 2023, while the appeal was ongoing, an annual review was held. Ms Y put forward her views and suggested amendments to Section A, which is the section for parent and child views. Ms X says the Council would not change Section A because of the pending appeal and the expectation was changes would be made via the ‘working document’ process the Tribunal requires to be completed prior to the hearing. Ms X says this did not happen.
13. Ms X says after the hearing the Council said it could not now change Section A. Ms X also says the Council failed to hold the next annual review on time, which meant the requested changes to Section A raised in Autumn 2023 were not actioned before Ms Y moved out of the area in Autumn 2024.
14. The Tribunal ordered that Z receive an Education Otherwise than at School (EOTAS) package under s.61 Children and Families Act 2014 to include:
• Tuition 6 hours per week to increase in line with Z’s needs and progress
• Speech therapy
• Occupational therapy
• Mentoring
• Physical education
• Academic equipment
• Professional ‘team around child’ meetings.
15. The Tribunal commented that it expected Z to be able to transition into a school in Autumn 2024.
16. The Tribunal also recommended the Council provide social care short-break provision of 6 hours per week until the Council had carried out its own detailed social care assessment.
17. The Council issued an amended final EHC Plan in line with the Tribunal order but did not include the 6 hours per week social care provision. The relevant section said the Council could not provide the 6 hours support recommended without first completing its own assessment. The social care team recognised Z currently attended several leisure activities and would need to understand the extent of access to universal services when considering any support needs.
18. The final EHC Plan said the next review would take place by July 2024.
19. The family requested free school meals (FSM) in early January 2024 following a legal case that advised councils should consider making such provision available to EOTAS pupils. The Council said it was awaiting government guidance on providing FSM to EOTAS pupils. The Government issued guidance in March 2024. Ms X says the Council did not respond until July 2024 when it confirmed it would provide meal vouchers backdated to March, but it then failed to do so.
20. The Council started its own social care assessment in February 2024. It noted no education provision was yet in place. The social worker completed the assessment in April and recommended the case go to panel for unmet social care needs. In June 2024 the Council decided to provide 3 hours support per week and from May provided a family support worker.
21. The Council did not hold the next annual review meeting by July, or within twelve months. It proposed a date for November 2024, but this did not go ahead. Ms Y then moved out of the area.
22. The Council transferred the final EHC Plan to the new authority in December 2024, which ended its responsibility for Z.

Complaint handling

23. Ms X / Ms Y began raising complaints from late 2023 and added new complaints as these arose.
24. In December 2023 Ms X raised concerns the social care provision was not included in the EHC Plan and the Council had not provided a decision with written reasons. Also, that Section A had not been amended outside the appeal process as agreed.
25. In January 2024 Ms X raised concerns about FSM, failure to secure EOTAS provision, the lack of social care, poor communication from officers and financial costs arising from use of an advocate.
26. The Council’s reply stated:
• The Council agreed provision for Z was not yet all in place, which was partly due to staff restructuring and because, it says, Ms Y did not give permission to share information with new service providers. The Council said Ms Y wished to use existing providers. A meeting was arranged to draw up a provision map.
• The Council acknowledged that it had not shared its decision and reasoning for departing from the Tribunal recommendation with Ms Y prior to issuing the amended final EHC Plan. It said social care was not agreeable to making provision without doing its own assessment.
• The Council suggested requested changes to Section A be referred to a senior officer to consider.
• The Council acknowledged there had been occasions when communications were not responded to.
• The Council considered it was Ms Y’s personal choice to use an advocate and said it would not refund these costs.
• There was no current statutory requirement to provide FSM to EOTAS pupils; the Council was expecting Government guidance to be issued in March.
27. Ms X told me Ms Y withheld consent to share information because of concerns Section A of the EHC Plan was not accurate. Ms X said they prepared their own Section A to share and the decision to withhold permission did not delay provision.
28. In Summer 2024 Ms X raised further complaints about the level of provision. In response the Council:
• Agreed to increase the hours of provision.
• Agreed to investigate funding mechanisms for equipment required and FSM, which the Council said it had agreed to pay from March 2024.
• Confirmed it had consulted speech and occupational therapists.
29. Ms Y remained dissatisfied and asked for the complaint to go to stage two of the complaint process because:
• Since December, Z had missed out on physical education, speech and occupational therapy, mentoring, tutoring, computer equipment and review meetings.
• Ms Y had asked the Council for a personal assistant to support attendance at activities, but social care had declined to do so stating it was for education to fund support if it was needed as the provision was in Section F (special educational provision) of the Plan not Section H (social care). The social care assessment remained outstanding.
• Funding for one provider had been agreed back to March 2024 only, which left a shortfall, and a new agreement had taken too long.
• Poor communication had necessitated use of an advocate as she was a lone parent managing a high needs child.
• Ms Y considered FSM should be backdated to 2019.
30. The Council’s stage two response found:
• A short delay in holding a review in November 2024.
• Tuition was not in place, but this was stated to be because Z was not ready for academic learning, and this was stated to be agreed with Ms Y.
• Speech and occupational therapy was not in place between January and November 2024 due to difficulties sourcing this.
31. The Council offered a symbolic financial payment of £1000 for the missed therapy provision and frustration and distress caused. Ms Y declined this as insufficient for the injustice caused.
32. Information provided by Ms X states the following provision was missed up to July 2024:
• Physical education
• Speech and occupational therapy
• 9 hours mentoring (out of 52 hours)
• 16 weeks of tutoring of 6 hours per week
• Three team around child meetings
• Computer.
33. The Council has confirmed that the therapies continued not to be provided between September and November 2024.
34. In response to my enquiries the Council confirmed it could find no evidence to support Z was not ready to access academic tuition as it had stated in its complaint response.

Relevant law and guidance

35. 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. 
36. 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)  
37. 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.
38. 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). The timetable for holding reviews is not affected by any intervening appeal.
39. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council.
40. The courts have established that if someone has appealed to the Tribunal, 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)
41. In appeals about special educational needs families can ask the Tribunal to make a recommendation about social care, this is known as an ‘extended appeal’. Recommendations about social care needs and provision are non-binding (Special Educational Needs and Disability (First Tier Tribunal Recommendations Power) Regulations 2017. Councils must write to the family within five weeks of the recommendation stating what steps the Council has decided to take in response to the recommendation. If the Council has decided not to follow the recommendation it must set out detailed reasons for that decision. Councils are generally expected to follow recommendations, and they should ‘not be ignored or rejected without careful consideration’ (SEND Tribunal: extended appeals guidance, September 2021).

What I have and have not investigated

42. I have investigated the above complaint issues except where they overlap with matters raised before a Tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
43. I have investigated education and FSM complaints for the period September 2023 to December 2024, when Ms Y moved to a new authority.
44. I have investigated the failure to provide respite / short breaks from the date of the Tribunal decision until the Council completed its own social care assessment.

Fault

Delay in 2024 annual review

45. The 2023 review meeting was held in September, but it is not clear when this review was completed with a decision. However, the Plan was in any event reviewed at the Tribunal hearing in November, and an amended version issued.
46. The final EHC Plan stated the next review would be completed by July 2024. Given the expectation Z would transition from EOTAS into a school setting there was good reason to hold the review early. The Council failed to arrange a review by July, despite setting this expectation. This was fault.
47. The Council’s complaint response stated it had held a review in November, and the review had been due in September, so the delay was short. In response to my enquiries Ms X and the Council both confirmed no review was in fact held in November. The EHC Plan was therefore not reviewed before Ms Y moved in December. Inaccurate information was therefore given in the complaint response. This was fault.
48. I am not persuaded the failure to hold a review meeting within twelve months has caused a significant injustice. The evidence suggests Z was not ready to transition into school in Autumn 2024 and it would not be usual to change provision ordered by a tribunal within twelve months unless there had been a significant change in circumstances. There is evidence the Council agreed to increase provision hours in Summer 2024 outside of a formal review. This is evidence that not holding a formal review meeting did not prevent other dialogue or changes to the provision.
49. The review delay did mean Section A was not amended, but Ms X says they prepared their own version for sharing so current parent views were available.
50. Ms Y and Z then moved areas a few months later and it was for the new council to consider whether to hold a review.

Section A

51. The Council failed to consider a request to amend Section A of the EHC Plan at the annual review in Autumn 2023. It was not fault to agree to consider this as part of the working document process, but this then did not happen. The Council promised a senior officer would consider this in its complaint response but then failed to arrange this. This was fault. Ms X told me that Section A had still not been amended in mid-2025 and that this would affect the accuracy of information provided for consultations with schools and to the new council Ms Y moved to. However, Ms X also told me they did have a current version of their own available to share.
52. The Council was only responsible for the EHC Plan until December 2024 when Ms Y moved authorities. I cannot investigate any failure by the new authority to update the Plan after Ms Y moved. I also cannot now recommend any worthwhile outcome to this part of the complaint as the EHC Plan is now held by a different authority.
53. While the delay in updating Section A will have caused frustration, I am not persuaded it has caused a wider injustice given Z remained in EOTAS provision throughout the period the Council was responsible for Z, and I have not seen evidence the Council did consult schools while Z was living in its area. Ms Y will have had the opportunity to share her views with the Tribunal and share her version of Section A with the new council.

Failure secure special educational provision

54. The Council has accepted that the special educational provision ordered by Tribunal and set out in the amended final EHC Plan of December 2023 was not secured. This is a breach of s.42 Children and Families Act 2014 and is fault.
55. The Council has acknowledged that it provided inaccurate information during the complaint about why education was not in place.
56. Ms Y did not agree to the Council sharing the EHC Plan with new providers, because she was concerned about Section A being out of date. The Council says this added delay. The Special Educational Needs and Disability Code of Practice states (9.211) the EHC Plan can be disclosed in the interests of the child, and this includes (9.212) disclosure to agencies referred to in the plan as making educational provision. Logically it must also be disclosable in, full or part, as is necessary to agencies or providers the Council wishes to make educational provision for a child under a EOTAS package in future. I cannot see therefore why the Council needed to obtain Ms Y’s consent to send the EHC Plan to potential providers, or why lack of consent would have delayed the Council making provision available.

Social care recommendation

57. The Council did not do a social care assessment before the Tribunal hearing. Ms X told me a Council social worker did attend the Tribunal and Ms Y had shared an independent social worker report. The Tribunal decided it had enough evidence to make a recommendation of 6 hours per week support pending further assessment.
58. The Council had to consider this recommendation and send a decision, with detailed reasons, to Ms Y within 5 weeks if it was not going to follow the recommendation. The Council added a brief explanation in the EHC Plan which stated the Council needed to do its own assessment. This was the same argument the Council had put to the Tribunal and which the Tribunal had rejected.
59. I find the Council ignored / rejected the Tribunal recommendation without proper consideration of the Tribunal findings. I have seen no evidence the Council considered the reasoning the Tribunal put forward. This is fault. It also failed to provide a written decision with reasons. This was fault.
60. The Council did not complete the assessment until April and did not put any social care provision in place until 6 to 7 months after the Tribunal decision. This delay was fault. The Council reduced the provision from 6 hours recommended by Tribunal to 3 hours per week, but recognised Z had unmet social care needs. The Ombudsman cannot comment on the professional judgement the Council reached.
61. In response to my draft decision Ms X raised concerns about the nature and amount of social care provision put in place after the Council’s decision to allocate 3 hours. This was not part of the original complaint, and I have not seen evidence the Council has had an opportunity to investigate and respond to such a complaint. It is therefore premature for the Ombudsman to consider it and is outside the scope of this investigation. (Local Government Act 1974, section 26(5))

Free school meals

62. The Council agreed to backdate funding to March 2024. This is the date Government guidance was issued and is the date we expect councils to consider providing FSM to EOTAS pupils. Having agreed to backdate the funding the Council should have honoured this agreement. Failure to do so was fault.

Injustice

63. Ms Y was put to additional time, trouble and distress to resolve the above faults with the Council.
64. I consider the continued use of an advocate to bring complaints after the Tribunal ended was a personal choice. The advocate was already involved at the time of the appeal and was not engaged because the Council was failing to respond to complaints. The Ombudsman does not usually reimburse legal costs where someone can use the complaints process for no cost but has made a personal choice to use a paid advocate.
65. Ms Y and Z missed out on social care provision. Even if the Council had provided cogent reasons why it considered 6 hours was too much provision at the time of the Tribunal recommendation, it also delayed in carrying out its own assessment. This took 5 months and a further 2 months to agree provision.
66. It is speculative what the Council would have decided had it properly considered the Tribunal findings. Given the Council later decided Z required 3 hours provision, I am satisfied Z missed out on at least 3 hours of social care provision from Winter 2023 until the Council’s own decision. There is uncertainty whether 6 hours may have been in place for a period until a new assessment was completed, this uncertainty is also an injustice.
67. Z missed out on tuition for 5 months. Z missed out on sport, therapies and educational equipment for 11 months. Team around child meetings were not held. Provision should have been in place within five weeks of the Tribunal order. The missed provision was a significant injustice. I am satisfied the responsibility for this delay lay with the Council.
68. As Z has moved authority it is not possible for the Council to offer ‘catch-up’ provision. Where there has been delay which has led to a loss of educational provision, we can recommend a symbolic financial remedy to acknowledge the injustice. Our Guidance on Remedies suggests a range of £900 to £2400 per term depending on the circumstances. The Council has offered £1000 for loss of provision over three terms. This is too low. Ms X has suggested the maximum payment for three full terms; this is too high as some provision was in place from Summer 2024 which should be recognised.
69. Ms Y missed out on FSM funding from March to November 2024.

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Agreed Action

Within four weeks of my final decision:

70. The Council will apologise to Ms Y for the faults identified in this decision statement.
71. The Council will backdate FSM funding to March 2024, as promised, and pay this to Ms Y.
72. The Council will pay Ms Y, on behalf of Z, £5000 based on the following:
• £3500 for the period between the Tribunal order and tuition starting when minimal education was in place;
• £1500 for the period from when tuition started until Z moved areas to reflect some tuition was in place, but other provision was not;
• The Council may deduct the payment of £1000 it proposed if this has already been paid.
73. The Council will pay Ms Y £1000 to acknowledge the impact of the missed social care and the time, trouble and distress caused.

Within two months of my final decision:

74. The Council will ensure it has robust procedures to check provision is secured after a Tribunal decision within the time limit.
75. The Council will keep clear records of its decisions following Tribunal recommendations in ‘extended appeals’ and ensure it provides detailed reasons in writing to the family within five weeks of the recommendation.
76. Children’s social care assessments and care plans will be completed in a timely way with provision put in place as soon as possible.
77. The Council will review how it manages complex EOTAS packages to ensure provision is co-ordinated and monitored as set out in the Plan by a suitably experienced officer. This is particularly important where there is an expectation of a transfer back to school, when it is intended that provision should increase between annual reviews, or when there are problems in arranging provision.
78. The Council will provide us with evidence it has complied with the above actions.

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Decision

79. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman