Summary: Mrs X complained the Council did not provide her child, Y, with alternative provision when she stopped attending school and it failed to provide her with the provision in her Education, Health and Care Plan. Mrs X also complained the Council failed to provide Y with a personal budget to secure the provisions in her Plan and about its delays with the annual review process of her Plan. There were faults by the Council which caused injustice to Y and Mrs X. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs X complained about the Council’s:
1. failure to provide her child, Y, with education, support and/or alternative provision after she stopped attending school
2. failure to provide Y with the provisions under section F of her Education, Health and Care (EHC) Plan. This included the Council’s failure to provide Y with an Education Otherwise Than at School (EOTAS) package
3. failure to provide Y with a Personal Budget to secure the provisions in her EHC Plan
4. failure to carry out annual reviews of Y’s EHC Plan within statutory timescales
5. poor communication with her.
2. Mrs X said as a result, Y lost out on education, support and an EOTAS package and it also affected her physically and mentally. Mrs X said the matter also affected her own mental health, caused her trauma, significant distress, financial loss / strain and the time and trouble chasing the Council and making complaints.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The law says 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. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share a copy of the final report with Ofsted.

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What I have and have not investigated

9. Mrs X made a complaint to the Ombudsman in March 2025 which means my investigation should start from March 2024. However, to make a meaningful investigation, I have exercised discretion to investigate matters from September 2023 to May 2025. This covers the period from when the SEND Tribunal issued an order and instructed the Council to amend the special educational provision specified in Y’s EHC Plan to when the Council issued Y’s final EHC Plan.
10. I have not exercised discretion to investigate matters from 2022 and before September 2023 because they are late complaints and there are no good reasons to investigate them now. Also, I have not investigated these matters because where someone has appealed to the Tribunal, the law says the Ombudsman cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal.

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How I considered this complaint

11. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. Mrs 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

Education, Health and Care Plans

13. 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.
14. Education other than at school (EOTAS) is a package of education which is council-funded and should be in section F of the EHC Plan.
15. The council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person. The Courts have said this duty to arrange provision is owed personally to the child and is non delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
16. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The review process includes a review meeting, and the subsequent decision, which have appeal rights. The process is only complete when the council issues a decision about the review.
17. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan. Where the decision is to amend the EHC Plan, the council must then issue any final amended Plan within eight weeks of the ‘amendment notice’. Therefore, a final EHC Plan must be issued within 12 weeks of the review meeting.
18. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final plan is issued.
19. 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). 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 and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.
20. Once the tribunal issues a decision, the council must carry out the order within a fixed period. Where the order requires the council to amend the special educational provision specified in an EHC Plan, the council shall issue the amended EHC Plan within 5 weeks of the order being made.

Personal Budgets

21. 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.
22. 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.

Alternative Provision

23. Section 19 of the Education Act 1996 (the Act) says each local authority will make arrangements for the provision of suitable education at school, or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
24. Councils must provide suitable full-time education/alternative provision under section 19 of the Act when a child of compulsory school age cannot attend school for 15 days or more days due to illness or other reasons.
25. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
26. Local authorities are expected to obtain data from all schools, regardless of governance, up-to-date and accurate data on all children not accessing full-time education.

Background

27. Mrs X’s child, Y, has some health conditions and some special educational needs. Y attended School 1, and she has an Education, Health and Care (EHC) Plan.
28. In May 2022, Mrs X made an appeal to the SEND Tribunal about the provisions in Y’s final EHC Plan. The appeal hearing was scheduled for September 2023.
29. In November 2022, Mrs X said Y stopped attending School 1 due to her health conditions and because School 1 could not meet Y’s needs.
30. Mrs X said the Council did not provide Y with education and provision after she stopped attending School 1 in November 2022.
31. Before the Tribunal hearing, the Council had agreed to Mrs X’s request for an education other than at school (EOTAS) package for Y. The EOTAS package included 15 hours per week tuition and a two-session per week emotional and special educational needs (SEN) support provision.
32. In July 2023, the Council started providing Y with the two-session per week emotional and SEN support provision.

Key events

September 2023 – July 2024 (Academic Year 2023/2024)

33. On 20 September 2023, the Tribunal issued an order which instructed the Council to amend the special educational provision specified in Y’s EHC Plan. It ordered the Council to include one hour per week enrichment programme to Y’s EOTAS package.
34. In September, the Council said it started providing Y with 15 hours per week tuition in addition to the ongoing two-session per week emotional and SEN support Y was receiving.
35. On 8 November, the Council issued Y’s amended final EHC Plan following the Tribunal Order which included the EOTAS package and an enrichment programme. The Section F provision included:
1. up to 16 hours per week of personalised tuition delivered on a 1:1 basis to include a personalised physical education (PE) curriculum.
2. 1 hour per week of enrichment programme.
3. 4 hours per week of holistic learning curriculum such as physical motor skills, self-confidence development and emotional awareness. This included 1 hour per week paid as part of EOTAS package for emotional and SEN support.
4. direct and indirect therapeutic input from an occupational therapist (16 hours direct input to be used flexibly across the year).
5. consultative model of therapy by a speech and language therapist (SALT) with a review session of 45-60 minutes where the SALT re-sets the targets of the programme for the following 6 weeks.
36. For the SEN provision at point ‘a’ (up to 16-hour weekly tuition), this was made up of 12 hours per week tuition commissioned and paid directly by the Council while the 3 hours per week tuition and 1 hour per week PE were to be paid through a personal budget (PB).
37. The Council agreed a PB of £11,504.99 to secure the provision in Y’s EHC Plan. The Council did not put in place Y’s PB until December.
38. Between September and December (before the PB was finalised), Mrs X said the Council only provided Y with a total of 13 hours per week provision (12 hours per week tuition and 1 hour per week of SEN support/holistic provision). Mrs X also said that due to the Council’s delays with finalising the PB, she had to privately fund some of the provision in Y’s Plan from September to December 2023. This included weekly 3 hours tuition, 1 hour PE and 1.5 hour of holistic provision. Mrs X said she incurred additional costs (interest rates and bank charges) when she self-funded Y’s provision.
39. In March 2024, Mrs X made a complaint to the Council about its failure to provide Y with the therapy provision in her EHC Plan and its delays with conducting Y’s 2024 annual review (AR) of her Plan.
40. The Council apologised to Mrs X for its delays with arranging the AR meeting and its failure to provide Y with the therapy provision. The Council said it hoped to secure the provision without further delay, and it offered a payment of £500 per term to remedy the level of the therapy provision Y had missed out on for the 2023/2024 academic year.
41. On 10 June 2024, the Council conducted an AR of Y’s EHC Plan where it was agreed the Plan needed to be amended based on her professionals’ reports. Mrs X also requested for an increase in Y’s PB to £12,845. On 19 June, the Council sent Mrs X its decision notice to amend Y’s Plan, and it attached a copy of the proposed amended EHC Plan.
42. In response to our enquiries, the Council:

• said it provided Y with suitable education/alternative provision when she stopped attending School 1 as the EOTAS package was put in place for her.
• confirmed it made a payment of £1,500 to Mrs X. This was calculated at £500 per term for the 2023/2024 academic year due to the level of therapy Y had missed out on between September 2023 to July 2024.

September 2024 – May 2025 (Academic Year 2024/2025)

43. Prior to the start of the new academic year, in August 2024, Mrs X chased the Council for update about its decision and payment of the increased PB she requested. Mrs X said this was because she needed to liaise with the existing commissioned providers, so a plan could be put in place for Y from September.
44. Mrs X’s PB request was considered by the panel at the end of August.
45. By September, the Council had not finalised Y’s EHC Plan and it had not put the PB in place. In mid-September, Mrs X chased the Council again for an update. The Council said the panel did not agree to fund some of the provision such as the enrichment programme because it needed more clarification. The panel agreed a reduced PB total of £9,690.
46. The Council and Mrs X exchanged several correspondence about Y’s PB due to disagreement about an agreed amount.
47. The Council continued to provide Y with a total of 13 hours per week provision (12 hours per week tuition and 1 hour per week of SEN support/holistic provision).
48. In October, Mrs X made a complaint to the Council about its ongoing delays and failure to agree Y’s PB and to issue her final EHC Plan since the AR held in June 2024. Mrs X said she had to start paying for Y’s provision because Y was missing out on the provision set out in her EHC Plan. Mrs X said Council failed to comply with the September 2023 Tribunal Order, failed to provide Y with full-time education and with all the provision in her EHC Plan including the weekly 1-hour enrichment programme.
49. Between September and December, Mrs X paid for some of the provision in Y’s EHC Plan (3-hour weekly tuition, 1-hour weekly PE, 1.5-hour weekly holistic learning provision and 1-hour weekly enrichment programme). Again, Mrs X said she incurred additional costs (interest rates and bank charges) when she self-funded Y’s provision during this period.
50. In its responses to Mrs X’s complaint, the Council:

• apologised for its delays with finalising Y’s PB and its failure to ensure Y received a comprehensive EOTAS package to support her SEN, which included its failure to provide her with a total of 4 hours per week of holistic learning provision.
• said the panel had agreed to fund the weekly 1-hour enrichment programme.
• agreed to reimburse Mrs X with the costs she incurred to secure some of the provision in Y’s Plan from September to December. The Council said it would reimburse the costs by backdating the agreed PB.
• upheld Mrs X’s complaint.

51. In December, the Council finalised and paid Mrs X an increased PB of £12,659 to secure Y’s provision for the 2024/2025 academic year. The Council backdated the payment to September 2024.
52. Mrs X said Y was then provided with all her SEN provision once the Council funded the agreed PB.
53. In May 2025, the Council issued Y’s final EHC Plan which included the £12,659 PB.

Analysis

Failure to provide Y with the provisions under section F of her EHC Plan and when Y stopped attending school

54. Mrs X complained the Council did not provide Y with suitable education when she stopped attending School 1 in November 2022. I have not exercised discretion to investigate matters that happened before September 2023 for the reasons set out in paragraph 10.
55. Councils must make suitable educational provision for children of compulsory school age who are absent from school because of illness. Councils also have a legal duty to secure all the provision in section F of an EHC Plan. In this case, the Council failed to provide Y with all the SEN provision set out in her EHC Plan for the 2023/2024 academic year and the 2024/2025 academic year. Therefore, I find the Council simultaneously failed to discharge its duty under Section 19 of the Education Act 1996 and Section 42 of the Children and Families Act 2014. This is because the Council failed to provide Y with suitable education, alternative provision and all the provision in her EHC Plan as set out in paragraph 35 to meet her identified SEN.

• 2023/2024 Academic Year -
1. From September 2023 to December 2023, the Council failed to provide Y with 1 hour per week enrichment programme and 1.5 hours per week SEN support/holistic learning provision. This was fault.
2. From September 2023 to July 2024, the Council already accepted it failed to provide Y with OT and SALT provision set out in her EHC Plan. The Council’s failing occurred for the whole of the academic year. This was fault.

56. The Council’s faults meant Y lost out on some specialist provision over a significant period. It also caused distress, worry and financial strain/loss to Mrs X.
57. However, the Council provided Y with some provision during the 2023/2024 academic year (12-hour weekly tuition and 1 hour SEN support/holistic provision). Also, Mrs X privately funded some provision in Y’s Plan (weekly 3 hours tuition, 1 hour PE and 1.5 hour of holistic provision). Therefore, I find Y was not entirely left without education and support during this period, and I find these mitigated the injustice caused to Y.
58. The Council had apologised to Mrs X and made her a financial payment of a total of £1,500 to remedy the injustice caused to Y due to the level of therapy she missed out on during the 2023/2024 academic year. This was calculated at £500 per term. This is welcome. But I find these remedies are not sufficient in line with our guidance on remedies. This is because the Council did not remedy the injustice caused to Y between September and December 2023 (loss of 1 hour per week enrichment programme and 1.5 hours per week SEN support/holistic learning provision). I also find the injustice caused to Mrs X by the Council’s fault during this academic year was not remedied. I will address this under the ‘action’ section below.

• 2024/2025 Academic Year -
1. From September 2024 to December 2024, the Council failed to provide Y with 1.5 hours per week SEN support/holistic learning provision. This was fault and caused injustice to Y (loss of weekly 1.5 hours of this specialist provision). However, I find Y’s injustice was again mitigated because she continued to receive some provision (13 hours per week from the Council and 6.5 hours per week provision which Mrs X self-funded).
2. From January 2025 to May 2025, the Council provided Y with all the SEN provision in her EHC Plan once it put in place the increased £12,659 PB in December 2024. This was not fault.

Failure to provide Y with a PB to secure the provision in her EHC Plan

59. The Tribunal order was issued in September 2023, the Council then issued Y’s amended final EHC Plan in November and it put in place the agreed PB to secure her provision in December 2023. The Council’s delay in arranging Y’s PB was fault. It meant Y lost out on some of her SEN provision during this period (1 hour per week enrichment programme and 1.5 hours per week SEN support/holistic learning provision). It also caused distress, worry and financial strain/loss to Mrs X.
60. During the AR meeting held in June 2024, Mrs X requested an increased PB to secure Y’s SEN provision. It took the Council six months to finalise Y’s PB (June 2024 - December 2024). This was a significant delay, and it was fault. This caused worry and uncertainty to Mrs X.
61. It also meant the Council failed to provide Y with the PB at the start of 2024/2025 academic year. The Council already accepted it did not provide the agreed PB to secure the provision in Y’s EHC Plan from September 2024 to December 2024 in a timely manner. This was fault. The Council’s delay to promptly provide PB during this period caused injustice to Y as she did not receive the full provision set out in her EHC Plan during the Autumn term. But I find the injustice caused to Y was mitigated. This was because Mrs X privately paid to secure some of the provisions in Y’s Plan between September and December 2024. And while the Council finalised the PB in December 2024 and it backdated the funding to September 2024, I find the Council’s delay caused worry, distress, uncertainty and financial strain/loss to Mrs X.

EHC Plan and AR Process within statutory timescales

62. Councils must issue final EHC Plans within 5 weeks after a Tribunal Order is issued. In this case, a Tribunal Order was issued on 20 September 2023 and the Council issued Y’s final EHC Plan on 8 November 2023. This means it took the Council approximately 7 weeks to issue Y’s final Plan. The two-week delay was fault, but I find it caused no significant injustice to Y.
63. The Council conducted an AR of Y’s EHC Plan on 10 June 2024, so it should have issued Y’s final Plan by 2 September 2024 (within 12 weeks of the review meeting). The Council issued Y’s final EHC Plan on 13 May 2025. This was a significant delay of approximately 36 weeks and not in line with the statutory timescale. This was fault. Y was left without an up-to-date EHC Plan to reflect her needs and provisions. It also caused distress, uncertainty to Mrs X, and her right of appeal was delayed.

Poor communication with Mrs X

64. The Council and Mrs X exchanged several correspondence about securing agreed provision in Y’s EHC Plan, AR process and PB. But I find Mrs X had to chase the Council for updates on these matters. This was fault and caused Mrs X distress, frustration and avoidable time and trouble.
65. We recently made service improvement recommendations in other decisions that the Council should remind relevant staff of the need to ensure EHC Plan timescales set out in statutory guidance are followed. We also recommended that the Council should remind relevant staff of its duty to provide all the SEN provision set out in EHC Plans in a timely manner and ensure the provision meets the assessed individual needs. We are continuing to monitor the actions the Council takes to ensure compliance with those and similar recommendations. For this reason, I have not made the same service improvement recommendations in this case. This identified issues are already being addressed through other cases we have investigated.

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Action

66. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Mrs X to acknowledge the injustice caused to her by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology.
• make Mrs X an additional payment of £500 in recognition of Y’s loss of specialist provision (enrichment programme and some holistic provision) from September 2023 to December 2023. This payment also includes the distress, worry and frustration caused to Mrs X by the Council’s failure to provide all the provision in Y’s Education, Health and Care Plan for the 2023/2024 academic year. This payment is in addition to the £1,500 financial payment the Council had already paid to Mrs X for non-provision of occupational therapy and speech and language therapy during this academic year
• make Mrs X a payment of £200 to acknowledge Y’s loss of specialist support and provision caused by the Council’s failure to provide Y with 1.5 hours per week holistic learning provision from September 2024 to December 2024
• liaise with Mrs X and gather information/evidence of payments she made to secure some of Y’s provision from September 2023 to December 2023. Then the Council should calculate and pay Mrs X with any interests and bank charges she incurred when she privately paid for some of Y’s provision during this period
• calculate and pay Mrs X with any interests and bank charges she incurred when she privately paid for some of Y’s provision from September 2024 to December 2024.

67. Within two months of the final decision:

• review the Council’s procedures for considering, agreeing and arranging personal budgets. This is to ensure the Council puts in place any agreed personal budgets in a timely manner to secure the identified provision set out in a child and/or young person’s Education, Health and Care Plan.

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

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Decision

69. I find fault by the Council causing injustice to Y and Mrs X. The Council will take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman