Summary: The Council failed to secure all the special educational provision in an Education, Health and Care Plan over five terms. There was also delay updating the Plan after annual review. This caused loss of education, distress and uncertainty. The Council has agreed to apologise and make a symbolic financial payment to remedy the injustice caused.

The complaint

1. Ms X complains the Council:
• failed to secure special educational provision in Section F of her child’s Education, Health and Care (EHC) Plan in breach of Section 42 Children and Families Act 2014 following a Tribunal outcome in early 2024;
• upheld provision was not all in place and promised to meet Ms X and keep her updated until all provision was secured, but this did not happen;
• failed to secure speech therapy which impacted her child’s ability to access other parts of the curriculum;
• failed to secure occupational therapy;
• failed to reply to calls and emails or make requested reasonable adjustments;
• failed to increase tuition;
• failed to pay a forest school provider;
• failed to progress a request for life skills training;
• failed to complete the 2025 annual review on time, delaying a right of appeal;
• agreed to provide free school meals but then did not do so.
2. Ms X says the above alleged failures have caused unnecessary inconvenience and distress. Her child has missed out on education and is isolated at home requiring high levels of parent support.
3. Ms X wanted the Council to:
• put all the provision in place;
• provide a financial remedy for missed education;
• complete the 2025 review and provide a final plan so she could appeal;
• secure the additional provision agreed at that review;
• meet her to discuss provision, maintain regular contact and monitor provision;
• backdate free school meals entitlement;
• pay providers their outstanding fees.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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))
7. 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)
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(i), as amended)

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What I have and have not investigated

9. I have investigated from when the final EHC Plan was issued following a Tribunal appeal in early 2024 until the Council issued a final amended EHC Plan adding more provision in Autumn 2025.
10. I have not investigated lack of provision prior to 2024 because the issue of what education was required at that time was a matter considered by the Tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
11. I have exercised discretion to investigate from the date of the Tribunal decision. This is only slightly over twelve months before Ms X came to the Ombudsman, and the new EHC Plan is a logical starting point.
12. I have investigated only whether the provision specified in the Plan has been secured. It is not for the Ombudsman to speculate as to whether additional provision should have been provided over and above what the Tribunal decided. If Ms X is dissatisfied with the contents of the Plan, then she can use her appeal rights.
13. Some of the complaints were raised by Ms X after the Council’s final complaint response, being:
• Free school meal vouchers.
• Delay considering request for life skills.
• Delay in issuing amended EHC Plan.

I have included these issues in my investigation, with the consent of both parties to do so. I am satisfied the Council has, in response to my enquiries, had an opportunity to consider them.

14. I have investigated up to September 2025 when the Council issued an amended EHC Plan. The Council’s final complaint response was provided in Spring 2025 and only addressed missing provision in the 2024 Plan. I consider Ms X would need to give the Council the opportunity to consider any complaint arising from events after September 2025, under the new Plan, before we could consider it. (Local Government Act 1974, section 26(5))

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How I considered this complaint

15. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
16. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
17. 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 found

What happened

18. Ms X’s child has had an Education, Health and Care (EHC) Plan since 2019. They stopped attending their mainstream primary school in Summer 2022. In 2023 the Council issued an amended EHC Plan naming a mainstream secondary school for Autumn 2023. Ms X appealed this decision to the Tribunal requesting Education Otherwise than at School (EOTAS) under s.61 Children and Families Act 2014.
19. Ms X was successful in her appeal, and the EHC Plan was amended to EOTAS provision in early 2024. The Plan referred to provision in school, but also set out the following provision for the period Ms X’s child was educated otherwise than in a school:
• Tuition from qualified tutors to be delivered flexibly and initially in the home (the number of hours was not specified)
• Weekly online science tuition
• Weekly 60-minute speech therapy session
• 2 hours forest school
• 2 hours art
• 3 hours specialist mentoring.
20. Ms X complains only nine hours per week education was put in place being:
• 4 hours maths and english tuition
• 2 hours forest school
• 1 hour mentoring via gaming
• 2 hours art.
21. Ms X told me some speech therapy was provided but then stopped as the therapist did not consider they had the required expertise for her child’s needs. Ms X says the speech therapist advised occupational therapy would be necessary for her child to access learning successfully.
22. In early Summer 2024 Ms X tried to contact the Council’s coordinator about missing provision.
23. In Autumn 2024 Ms X made a formal complaint that no case officer was assigned, no-one was answering emails, and her child was still missing provision.
24. The Council said provision was in place. Ms X did not agree and asked for the complaint to be escalated to stage two of the complaint process. Ms X said the following provision in the EHC Plan was not in place:

• 60 mins per week speech therapy and fortnightly liaison
• Language teaching
• Occupational therapy
• Forest school was not being paid
• Teaching for more subjects, for example science as stated in the EHC Plan.

25. Ms X also complained a review had been completed in Summer 2024 without her input and her child should have had free school meals funded.
26. The Council replied to the stage two complaint in early 2025. It said there had been no review in August, the file had just been migrated. The Council acknowledged some provision, such as therapies, was not in place. It said this would be organised by the end of January 2025 and it would keep in touch with her about this. An apology for the missed provision was made.
27. An annual review in early 2025 identified the following provision was not in place:
• Speech therapy
• Science
28. At the review meeting Ms X also asked to add extra provision for life skills, more curriculum subjects, and speech and occupational therapy. Ms X also wanted the Plan re-written as its wording was written for school provision, not EOTAS.
29. Ms X subsequently complained that while the Council had agreed to consider her request for life skills, it had failed to progress this.
30. The Council issued an amended draft EHC Plan in Spring 2025. It did not finalise this Plan until Autumn 2025, eight months after the review meeting.
31. In Summer 2025 the Council started to provide free school meal vouchers, but Ms X complained these were not backdated.
32. The Council prepared a personal budget which stated that going forward, Ms X’s child would receive increased tuition and forest school and added life skills and occupational therapy. The Council told me that in September 2025 the following provision was in place:
• Speech therapy had now been commissioned.
• Online learning for science and life skills began in early September.  This provision was delayed, to include other pupils, so Ms X’s child could learn in a group.
• An additional art session.
• Additional tutor support to transition into new provision.
33. The Council said it had not been able to commission occupational therapy.
34. In response to my enquiries the Council confirmed:
• There had been some confusion about payments, but this had now been investigated and updated funding forms issued.
• There had been staffing shortages which had unfortunately caused delay. It wished to apologise to Ms X for the problems she has experienced.
• The Council has recently commissioned life skills; there had been a problem with a funding form which had delayed this, but it was now resolved.
• There was an oversight in backdating free school meals, and it would now rectify this.

Relevant law and guidance

35. 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 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) 
36. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
37. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment.

38. 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)  
39. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Analysis

Scope of investigation

40. For the reasons set out above I have investigated from after the Tribunal decision up to September 2025 only. Events after September 2025 are premature for us to consider and Ms X would need to raise a new complaint with the Council about this period.

Delay in amending EHC Plan

41. The review meeting was held in early 2025. The Council should have amended the Plan and issued a final amended version within twelve weeks. This process took eight months. This is fault.
42. The five-month delay meant Ms X could not appeal to the Tribunal even though she was unhappy with the contents and wording of the EHC Plan. This was an injustice.
43. The Council did agree to increase the amount of tuition and special educational provision in the Plan to a more fulltime timetable. Potentially if the final amended Plan had been issued on time this extra provision may have been available to Ms X’s child sooner. This uncertainty is an injustice. I have recommended a symbolic financial payment to acknowledge the impact of this delay and uncertainty.

Free school meals

44. The Council has acknowledged it had omitted to backdate free school meal funding and will now do so. This is a suitable remedy for this aspect of the complaint.

Poor communication and administration

45. The Council has accepted its service fell below the standard Ms X could expect. It has apologised and recently taken steps to resolve the outstanding issues.

Non-payment of providers

46. The Council had failed to pay all fees in a timely manner. It has now taken steps to resolve this. It has prepared and shared with Ms X a personal budget setting out what it has commissioned and the costs of the provision. Ms X raised concerns with me that this meant she would be responsible for commissioning. This is not the case. A personal budget is not the same as direct payments, where parents take on the responsibility. The personal budget is held by the Council, and it will continue to commission the provision.

Science online tuition

47. This was not provided for five terms (up to September 2025). This was fault.

Speech therapy

48. This was not commissioned for five terms (up to September 2025). This was fault.

Life skills training

49. This was not required provision set out in the 2024 EHC Plan issued following the Tribunal. The Ombudsman cannot find fault by a Council in failing to provide education which the Tribunal had not ordered was required.
50. There was delay in considering Ms X’s request to add life skills to the Plan and in amending the Plan to include this. I have already provided a remedy for this delay as set out above.

Occupational therapy

51. The 2024 EHC Plan included occupational therapy strategies but did not specify these had to be provided by a qualified therapist rather than other staff who worked with Ms X’s child. The 2025 amended EHC Plan also does not include any qualified therapist time, although the personal budget does indicate the Council intends to commission a high level of therapy in future.
52. I cannot find it was fault for the Council not to commission an occupational therapist. This was not a requirement in the 2024 Plan. There was however provision for staff to implement strategies during teaching time, and it is unclear whether this happened.
53. It is not for the Ombudsman to take a view what level of qualification was necessary to deliver the intervention, or how this should be specified in an EHC Plan, this is a matter for the Council or a Tribunal.

Mentoring

54. Three hours per week was specified in the Plan but only one hour per week provided. This was fault and two hours mentoring per week was missed for five terms (up to September 2025).

Tuition hours

55. Part of Ms X’s complaint is that the education provided did not include a wider range of curriculum subjects.
56. English and Maths tuition was provided. As set out above science and mentoring were specified in the Plan but not provided for five terms. Art and forest school were specified and were provided.
57. Ms X wanted her child to receive a fulltime education, but the 2024 EHC Plan did not specify a minimum number of tuition hours or subjects. It is not for the Ombudsman to speculate as to the level of education the Tribunal intended Ms X’s child receive. We can only hold the Council accountable for the Plan that was issued. The Council decided to provide four hours tuition. There is no basis for us to state it had to provide more than this when the Tribunal had not ordered it to do so.
58. The Council has recently added more provision. If Ms X disagrees with the contents of the recent amended final EHC Plan, then Ms X has a right of appeal to the Tribunal which we would expect her to use. Ms X has confirmed to me she has received the final Plan and has a mediation certificate allowing her to appeal.

Injustice

59. The Council has taken steps to resolve some of the outstanding issues during my investigation. It has not offered any financial remedy for the missed provision during the period I have investigated. A minimum of four hours provision per week was missed, including therapies that would have supported learning, over a five-term period (up to September 2025). In deciding the level of financial payment that is appropriate to remedy the injustice, I have taken into account that the Tribunal did not specify full-time hours of education.

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Action

Within four weeks of my final decision:

60. The Council will apologise to Ms X and agree with her how it will communicate with her in future, ensuring it considers any reasonable adjustments Ms X requests.
61. The Council will check and confirm to us and Ms X all outstanding payments have been made (free school meals and to providers).
62. The Council will pay Ms X £500 to acknowledge the impact of the five month delay in amending the EHC Plan and the uncertainty whether more provision would have been available sooner but for this delay.
63. The Council will pay Ms X £2500 to reflect the mentoring, science tuition and therapy provision missed over five terms.
64. I have not recommended service improvements. The Council has already recognised during this investigation errors which it has resolved. The Council also told me it has set up an independent improvement board which meets monthly and has an improvement plan in place approved by OFSTED to drive up standards.
65. The Council will provide us with evidence it has complied with the above actions.

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Decision

66. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman