Summary: We found fault with the Council failing to provide Mrs X’s child’s full Education, Health and Care Plan provision and suitable education from 8 November 2024 to the end of the academic year. The Council agreed to apologise to Mrs X, pay her £300 for the frustration, distress and uncertainty caused to her and £2,500 for her child’s missed educational provision.

The complaint

1. Mrs X complained the Council failed to provide suitable education for her child for two years. Mrs X said the delays continued even after the Council agreed to provide Education Otherwise Than At School (EOTAS).
2. Mrs X also complained the Council delayed production of an Education, Health and Care Plan for her child.
3. Mrs X also complained the Council provided an inadequate and late complaint response.

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The Ombudsman’s role and powers

4. 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).
5. 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).
6. 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)
7. 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.
8. 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)
9. 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)
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(i), 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).

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What I have and have not investigated

12. I have investigated Mrs X’s complaint from 3 October 2024 to the start of the academic year 2025/2026 in September 2025.
13. 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)
14. 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.
15. The period we cannot investigate starts from the date the Council makes an appealable decision. 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 the Council finalises any changes to the EHC Plan, so long as the council follows the statutory timescales to make those amendments.
16. I have started my investigation from 3 October 2024. This is the date the Council wrote to the SEND Tribunal to advise it had reached an agreement with Mrs X to concede the appeal. While Mrs X has raised concerns about the lack of provision for her child from the Council before 3 October 2024, matters before this date are outside the Ombudsman’s jurisdiction because of the appeal to the tribunal.
17. I have not investigated any dispute about the content of the EHC Plan produced by the Council on 8 November 2024 as this for the tribunal to consider. Mrs X has advised she wants swimming included in the EHC Plan and a gym membership at a specific gym. Mrs X has also said she wants travel costs for the play therapy sessions. Since the Council has not included these specifics within the EHC Plan, I will not find fault with the Council for failing to deliver them. Should Mrs X want this changing, this is something she needs to discuss with the Council or appeal to the SEND Tribunal.
18. I have ended my investigation at the start of the academic year 2025/2026 in September 2025. While Mrs X brought her complaint to the Ombudsman on 9 March 2025, I have exercised my discretion to investigate matters further. This is because Mrs X’s complaint was ongoing and the Council only put in place funding for tuition in September 2025. The Council also took relevant corrective action for underfunding for the academic year 2024/2025 in September 2025 meaning this was relevant to our findings. Any matter about Mrs X’s child’s EHC Plan or educational provision in the academic year 2025/2026 would be the subject of a new complaint with the Council.

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How I considered this complaint

19. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
20. 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

Rules and Regulations

EHC Plan – General and appeal

21. 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. 
22. When a council and a person agrees to a Consent Order to conclude a tribunal appeal, the SEND Regulations 2014 outline when a Council must complete the actions agreed on.
23. If the appeal is made about the content of a child’s EHC Plan relating to a child’s educational needs and educational provision specified in a plan, and the local authority has contested the appeal, the local authority must issue the amended EHC plan within 5 weeks of the date the First-tier Tribunal issued its order.
24. The Ombudsman can look at any delay in the assessment and creation of an EHC plan as well as any failure by the Council to deliver the provision within an EHC plan.

EHC Plan – Personal Budget

25. 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.
26. 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.
27. 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.
28. The council’s (and health commissioning body’s where relevant) duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.

Provision of education – Section 19

29. 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 education provision.
30. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
31. 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)
32. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Council’s complaints procedures

33. The Council operates a two stage complaints process. At Stage One the Council aims to provide a complaint response within 20 working days.
34. If a person is dissatisfied with the Council’s response at Stage One they can request consideration of their complaint at Stage Two. The Council says it aims to decide whether to accept the complaint at Stage Two within 10 working days. The Council will then provide a Stage Two complaint response within 25 working days of accepting the Stage Two complaint. This gives the Council a maximum of 35 working days to respond to a person’s request for consideration at Stage Two.

What happened

Background

35. On 28 September 2023, the Council produced a Final EHC Plan for Mrs X’s child, who I shall refer to as Y.
36. On 27 October 2023, Mrs X appealed the Final EHC Plan to the SEND Tribunal. Mrs X detailed that Y had not been able to attend school since November 2022. Mrs X said Y’s Final EHC Plan did not name a specific school setting in Section I and instead said the Council would name this when it found a suitable setting. Mrs X detailed that she was appealing Sections B, F and I of the Final EHC Plan. Mrs X said she considered Section F requires specificity and quantification over the support to meet Y’s needs and that there was significant provision missing. Mrs X appealed Section I because she considered that it was inappropriate for Y to attend any school and instead wanted EOTAS.
37. In February 2024, the Council started to provide 2 hours of mental health sessions each week for Y.
38. In September 2024, the Council started to provide play therapy for Y consisting of 1 hour per week. The Council also agreed to provide EOTAS for Y for the next academic year and confirmed this will run until September 2025 with the aim of finding a suitable school placement for Y.
39. Mrs X started to fund 30 minutes of maths and 30 minutes to one hour of other educational provision each week.

Matters relating to this complaint

40. On 3 October 2024, the Council issued an agreement with Mrs X to the Tribunal for a Consent Order in which it would detail that Y would receive EOTAS in the EHC Plan.
41. On 4 November 2024, the Tribunal issued a formal Consent Order.
42. On 8 November 2024, the Council issued an amended Final EHC Plan following the tribunal consent order. This amended Final EHC Plan detailed Y would receive a bespoke curriculum through EOTAS building up to 25 hours each week including Speech and Language Therapy (SALT) and Occupational Therapy (OT). This package would include online sessions, face-to-face sessions at home and in the community, sensory activities, physical activities and 1:1 teaching and small group work. This package of learning should be tailored towards what Y is interested in engaging in. Within this 25 hours the Council outlined a range of specialist provision.
43. The Council began to provide the physiotherapy detailed in Y’s EHC Plan from 13 November 2024.
44. Mrs X made a Stage 1 complaint to the Council on 15 November 2024. Mrs X said:
• The EHC Plan issued by the Council in November 2023 was inadequate and failed to address Y’s needs. Mrs X says she needed to appeal this to the SEND Tribunal which resulted in the Council conceding the appeal and agreeing to provide EOTAS through a Consent Order.
• The Council placed Y at an unsuitable school in March 2023 and Y had never attended this placement.
• The Council put in place online provision as alternative education which was unsuitable for Y.
• The Council delayed providing various promised provisions including the online learning, mental health sessions, provision of a Personal Budget, offer of play therapy, provision of tutoring and mentoring.
• Y had now missed 18 months of education as a direct result of the Council’s actions.
45. On 20 December 2024, the Council provided a Stage 1 complaint response to Mrs X. The Council said:
• It did not uphold Mrs X’s complaint about the EHC Plan issued in November 2023 being inadequate. The Council said Mrs X did not provide comments on the draft EHC Plan which meant it turned this into a Final EHC Plan.
• It did not uphold Mrs X’s complaint it delayed agreeing to provide EOTAS because it considered there was a suitable educational setting that could meet Y’s needs. It only later decided to provide EOTAS when the school withdrew this offer of a placement for Y.
• It agreed to provide EOTAS at the start of October 2024 through a Personal Budget. The Council said its panel was still considering this request.
• The Council said it was still considering Mrs X’s request for compensation for Y’s missed education and it would contact Mrs X shortly after the complaint response.
46. Mrs X sought consideration of her complaint at Stage 2 of the Council’s complaints procedure on 6 January 2025.
47. On 8 January 2025, a tutor started to work with Y for 5 hours each week with the idea of this raising to 15 hours.
48. On 16 January 2025, Y started to receive the SALT from the EHC Plan.
49. Mrs X raised concerns about the suitability of the tutor on 17 January 2025 as this tutor was not suitable for Y’s needs and not delivering interest-based learning as outlined in Y’s EHC Plan. Mrs X said she was happy for the sessions to continue as Y was content with the tutoring but felt she needed to raise this.
50. In January 2025, the Council discussed a Personal Budget direct payments package with Mrs X for provision of Y’s EOTAS and EHC Plan provision. This Personal Budget direct payments package went through various changes before agreement on Version Three.
51. On 6 February 2025, the Council agreed a package for 3 hours of educational provision, Physiotherapy, Occupational Therapy, Speech and Language Therapy, animal therapy and bungee classes. This was to work alongside the tuition put in place since 8 January 2025. The Council started payment for this Personal Budget agreement and backdated this to 3 January 2025. The Council also paid Mrs X a lump sum payment for the laptop and any provision she paid for since September 2024.
52. On 17 February 2025, Mrs X raised concerns with the Council that:
• Y’s tutor was not delivering the provision detailed in the EHC Plan and was not suitable for Y’s needs.
• She had concerns about the availability of Y’s tutor in the long term because the tutor told her they would not be able to increase Y’s hours.
53. On 21 February 2025, Mrs X said that Y had shown resistance to the tutor coming twice now and didn’t want to do the next session on Monday. Mrs X said she did not consider the tutor is the right fit and said she would like to explore other options.
54. Y’s tutoring sessions stopped on 24 February 2025.
55. On 28 February 2025, Y started attending bungee exercise classes.
56. Mrs X and the Council agreed an increased Personal Budget for Y starting from 4 March 2025; this was Version 4. The Council did not put in place the direct payments for this increased Personal Budget.
57. The Council issued its Stage 2 complaint response on 6 March 2025. The Council said:
• It apologised the school was not to Mrs X’s preference but it was working to ensure the correct provision was in place for Y.
• Its records showed the Personal Budget for Y’s EOTAS package was agreed in January 2025 and backdated for one month. The Council said Mrs X had confirmed she received payment in February 2025.
• It notes that Mrs X had made a request for £1,312.38 to cover the cost of provisions Mrs X sourced and the cost of a laptop.
• It apologised for the delays in securing Y’s provision through the EOTAS package but now considered that this was in place.
• The Council directed Mrs X to the Ombudsman with her complaint.
58. On 16 April 2025, the Council confirmed the panel had agreed for extra mental health sessions for Y. The Council said it would prioritise putting this in place.
59. Mrs X confirmed with the Council on 24 April 2025 the EOTAS co-ordinator had found a suitable tutor who had met with Y last week. Mrs X said they were arranging for the new tutor to start soon. The Council cancelled the tuition provision currently on offer on the back of this.
60. By the end of the school year 2024/2205, Mrs X confirmed the Council had not put in place the 15 hours of tuition each week with the new tutor. Mrs X also said physical activity/sensory regulation activities of two and a half hours each week was not in place.
61. The Council agreed a new Personal Budget to run from 1 September 2025 for Y which included the tuition sessions and therapy sessions not previously included in the Personal Budget; this was Version Six.
62. On 4 September 2025, the Council paid Mrs X two lump sum payments. The first covered the difference in cost between Version 6 and the amount it had paid Mrs for the period 1 September 2025 to 25 September 2025. The second covered the difference in cost between Version 4 and the amount it had paid since 4 March 2025. From 25 September 2025, the Council paid Version Six of the Personal Budget through direct payments.

Analysis

EHC Plan amendment

63. The Council agreed to amend Y’s EHC Plan on 3 October 2024 and told the tribunal of its intention on this date. The Council issued the Consent Order on 4 November 2024 giving the Council five weeks to issue an amended EHC Plan to Mrs X, until 9 December 2024.
64. The Council issued Y’s amended EHC Plan to Mrs X on 8 November 2024. This is within the statutory timescales and I do not find fault.

EHC Plan provision and Y’s education

65. The Council was only required to provide the EHC Plan provision detailed in Y’s plan from the date of its production on 8 November 2024.
66. As part of Y’s EHC Plan, the Council proposed a package of EOTAS to fulfil Y’s education since Y was not attending school. This package of EOTAS would meet the Council’s Section 19 duty to provide education for Y.
67. Y’s EHC Plan was clear the Council should provide a graduated build-up of access to education and EHC Plan provisions and not look to put in place 25 hours of educational provision immediately. I do not find fault with the Council taking a graduated approach to introducing Y’s education and EHC Plan provisions.
68. As of 8 November 2024, Y had in place two hours of mental health sessions and one hour of play therapy each week. Mrs X also arranged about two and a half hours educational provision for Y and bought a laptop for Y. Y started physiotherapy sessions shortly after 8 November 2024.
69. The Council has paid Mrs X to cover any expense she incurred fulfilling Y’s EHC Plan from 8 November 2024 until it put in place the Personal Budget direct payments. The Council also accepted the amount of educational provision it put in place was not enough to meet Y’s EHC Plan in November 2024.
70. The Personal Budget paid to Mrs X by the Council since 3 January 2025 has provided for most of Y’s EHC Plan provision. This Personal Budget did not cover the ball games and tutoring, which included the life skills curriculum, the social communication programme, sensory motor skills programme and PHSE curriculum. The Council provided a tutor for Y from 8 January 2025 to 24 February 2025. This meant the Council fulfilled all Y’s EHC Plan during this time except for the ball games. Failure to fulfil the ball games provision was fault.
71. From 24 February 2025, Y’s tutoring stopped. The Council delayed putting in place a replacement tutor for Y until September 2025 despite knowing this tuition had stopped. This was fault. This meant Y did not receive the direct tutoring or other associated EHC Plan provisions for the rest of the academic year. The Council continued to pay Y’s Personal Budget direct payments for the remaining EHC Plan provision and has backdated a lump sum payment to ensure it made payment at the Version 4 agreed rate.
72. The Council has offered £2,500 for the impact on Y for its failure to deliver suitable educational provision. This offer covers the time period 8 November 2024 to 3 January 2025 and from 24 February 2025 through to the end of the academic year for failing to provide the tutoring and associated EHC Plan provisions related to this. This payment also considered the failure to deliver the 30 minutes of ball games throughout.
73. The Council’s offer falls in line with the Ombudsman’s guidance on remedies for lost educational provision and EHC Plan provision. This considers the lower level of provision in place from 8 November 2024 to January 2025 and the tuition in place from January 2025 to 24 February 2025. This also considers the Personal Budget payments made to Mrs X covering certain provisions since 3 January 2025 and backdated payment for the costs Mrs X incurred.

Complaint handling and impact on Mrs X

74. Across both Stage One and Stage Two of Mrs X’s complaints with the Council, the Council delayed outside its complaint timescales by just under three weeks; this delay was fault.
75. Mrs X has also experienced delays and uncertainty by the Council from 8 November 2024 to the end of the academic year. This is through delays in putting in place Y’s Personal Budget direct payments, repeated revisions of Y’s Personal Budget from January 2025 until September 2025 and Mrs X needing to chase the Council to put in place suitable provision for Y.
76. Because of the Council’s fault, Mrs X has experienced frustration, distress and uncertainty. The Council has offered Mrs X £300 to address this injustice caused to Mrs X and an apology. This is in line with the Ombudsman’s guidance on remedies and I consider this a suitable symbolic gesture.

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Action

77. Within one month of the Ombudsman’s final decision the Council agreed to:
• Provide an apology to Mrs X and pay her £300 as a symbolic gesture for the frustration, distress and uncertainty its delays and actions have caused her.
• Provide a payment of £2,500 to Mrs X for Y’s lost educational provision from 8 November 2024 to the end of the academic year caused by the Council’s delays in arranging suitable education and Education, Health and Care Plan provision.
78. The Council should provide us with evidence it has complied with the above actions.

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Decision

79. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman