Summary: I find fault and delay by the Council in securing special educational provision. Z has missed out on specialist therapy and other support for over two terms. This is an injustice. The Council has agreed to apologise, make a symbolic payment and service improvements. The complaint is upheld.

The complaint

1. Ms X, a Representative, complains on behalf of Ms Y and her child, Z, that the Council:
• Failed to secure special educational provision in Z’s Education, Health and Care (EHC) Plan from December 2024 to date.
• Failed to provide free school meals or vouchers when Z was educated otherwise than at school (EOTAS) under s.61 Children and Families Act 2014.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We 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)
4. 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)
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. 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

7. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)
• The Special Educational Needs (Personal Budget) Regulations, 2014
8. 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.
9. 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

Chronology of key events

10. Ms Y and Z moved into the Council’s area in December 2024.
11. Z ‘s EHC Plan was transferred promptly by the previous Council. Z’s special educational provision was to be delivered otherwise than at school under s.61 Children and Families Act 2014. This followed a decision by the Tribunal in 2023 that Z’s needs could not be met in any school.
12. The Tribunal had anticipated Z would be ready to transfer into formal schooling in Autumn 2024, but this had not happened.
13. The EOTAS package included:
• Academic tuition
• Speech and occupational therapy
• Physical Education (PE)
• Mentoring (currently delivered in part via ‘gaming therapy’)
• Termly professional meetings / team around child meetings
• Provision of a computer
• Stationery and printer ink.
14. Ms Y also requested free school meal vouchers.
15. Following the Tribunal decision there had been long delays in the previous council securing special educational provision in the Plan, with the result Z missed several months of tuition and did not receive therapies for the year after the Tribunal hearing.
16. Ms X began raising complaints with the new Council in late January, when six weeks after moving areas, only academic tuition was in place.
17. The Council’s complaint response said Z had moved two weeks before the Christmas holidays which affected delivery, but it had agreed some EOTAS provision at the start of the new term in January. The Council said there was delay in the previous council providing information due to it being closed over the holidays.
18. The Council said Ms X had sought to renegotiate hours for tuition in January and to introduce an alternative provider. The Council said it was not practical to finalise a package which continued to change and again used this as a reason to explain the delay in tuition starting.
19. The Council said it had sent a ‘personal budget contract’ to Ms X in January, but she had not signed and returned it. The Council said it had backdated funding to December when Z moved. The Council said by not signing the contract Ms Y had delayed ‘certain provisions’.
20. The Council told Ms X it was a legal requirement Ms Y agree, in writing, to the costs it had agreed with providers it had commissioned.
21. The Council addressed specific provision Ms Y had requested:
• Ms Y wanted specialist swim sessions for the PE provision. The Council said it was willing to fund swimming lessons at a local pool, but not with specialist staff, which it said was only required by the Plan in a school setting.
• The Council was contacting speech and language and occupational therapy providers.
• The Council would fund a laptop up to £500 which would remain the Council’s property, and the Council would purchase this once Ms Y had signed an agreement to confirm it was a loan.
• It would issue free school meal vouchers.
• It had corrected the cost of gaming therapy / mentoring (which Ms Y had pointed out was inaccurate in the document sent to her).
22. Ms Y told the Council she could not sign the document because she was not willing to accept a voucher to arrange the computer or swimming herself; it was for the Council to arrange provision. Some costings were wrong, and therapies were not included. Ms Y considered the Council was confusing EOTAS and elective home education and expecting her to arrange provision herself.
23. Ms X said that the EHC Plan required all staff working with Z to have specific expertise and this included PE. A proposed budget of £200 per year for swimming was not suitable and did not cover adult support. Z had lost their place at specialist sessions due to delay. Ms Y was not agreeable to supporting Z at council swim lessons herself.
24. Ms X made clear the family did not want to coordinate the EOTAS package themselves.
25. The Council continued to correspond with Ms X about the provision it was trying to source. It said it would ask social care to coordinate the ‘team around the child’ termly meetings and suggested this was not a matter for the education team.
26. The Council continued to send Ms Y personal budget documents to sign, but Ms X told me these were not accurate, and non-signature did not prevent the Council arranging provision it had agreed to commission direct. The Council was already doing this with academic tuition without the need for Ms Y to sign an agreement specifying the tutor costs, so it could not be the case it was a legal requirement Ms Y sign the Council’s document.
27. Ms X has provided me with a copy of the ‘personal budget agreement’ document sent to Ms Y to cover the period December 2024 to July 2025. This states it is for a ‘direct payment’ to be managed by Ms Y on behalf of Z. It states the total personal budget (approximately £25,000) and the direct payment element (just over £1000). It states the direct payment is to cover stationery, printer, ink, swimming and laptop.
28. Ms X told me Ms Y does not want a direct payment for any of the provision.

Response to our enquiries and draft decision

29. In response to my draft decision the Council has stated the following:
• There was service failure in the administration and timing of free school meal vouchers and payments were made later than intended. The Council has issued vouchers to Ms Y for 2025/26 and is reviewing its guidance to ensure timely issue of vouchers in future.
• Market constraints affected provision of speech and occupational therapy. A speech therapist has now been commissioned, and an occupational therapist has been identified who will contact the family. Longer term the Council is taking steps to improve systems to track and commission therapies.
• Professional meetings have not been provided in the way stated in the Plan. The Council has scheduled a first meeting for January with a standing schedule of meetings put in place. The Council will improve its processes for ensuring it checks provision in an EHC Plan is in place and tracks meetings are arranged.
• The Council accepts there was a short delay in provision over the Christmas period after Z moved to the area.
• The Council will provide a laptop it considers suitable but does not accept this needs to have the specifications Ms X suggests.
• The Council does not require parental agreement to approve or validate costs for directly commissioned provision, and it should not have stated this in complaint correspondence. Documentation is shared to ensure the parent is fully aware of the scope of the provision being supplied through the Personal Budget. The Council will ensure this is clearly reflected in future communications and practice.
• The Council considers leisure centre membership meets the requirement of the Plan for PE and a specialist swim instructor is not required.

Relevant law and statutory guidance

30. 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. (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
31. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  
32. 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.
33. 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.
34. Personal budgets are optional for the child’s parent or young person, but councils are under a duty to prepare a budget where requested. (9.97, The Code)
35. Mechanisms for delivery of a personal budget include:
• Direct payments where families choose to receive cash to contract, manage and purchase services themselves;
• An arrangement where the Council (or setting) funds and commissions the support, sometimes called notional budgets;
• Third party arrangements where funds are managed by an individual or organisation on behalf of the child or young person;
• A combination of the above. (The Code 9.101)
36. The amount of a personal budget or direct payments must be sufficient to secure the provision specified in the EHC Plan.
37. Before making direct payments, the Council must provide a written notice specifying the name of the child for whom payments are to be made, the goods or services to be secured, the proposed amount, any conditions on how direct payments are to be spent, and the dates for payment into a specified bank account. Families should confirm their agreement in writing of any conditions for receipt of a direct payment.

Analysis

What I have investigated

38. I have investigated whether Z has missed out on special education provision or free school meals from December 2024 to November 2025.

Fault

39. Z moved into the Council’s area, and the EHC Plan was transferred in early December. Z’s EHC Plan was for EOTAS under s.61 Children and Families Act 2014. The Tribunal’s view Z might move into a school placement had no bearing on the Council’s duty to secure the provision in the Plan. Tribunals orders cannot bind a Council beyond the next review of the EHC Plan. If a Council wishes to amend a Plan it can do so by following the statutory process to review the Plan. Until then, the provision must be delivered as specified.
40. The Council did not review the EHC Plan immediately on transfer. It was therefore responsible for providing the special educational provision in the EHC Plan as set out by the previous Council at the latest within fifteen working days, which given the Christmas holidays would have been the first week of January. The Council now accepts the provision was delayed, although points to the Christmas period traditionally being non-operational across education and therapeutic services. We can only apply the law as it stands and the law does not exclude the full school holidays from the timescale, only weekends and public holidays.
41. Z was able to continue to access some of the same provision as before his move. Ms X passed details of this to the Council in December, and it set up new contracts for gaming therapy / mentoring in mid-January and academic tuition by 20 January. As provision should have been in place by the first week of January, even allowing for holidays, this delay of two weeks was fault. Ms Y did ask for some hours to be switched from the current tuition to a new provider, but this did not affect the provision which the Council stated in its complaint response had started the day before it received Ms Y’s request for changes.
42. The Council sent Ms Y what it described as a ‘personal budget contract’ at the end of January. The top of the contract states it is a ‘direct payment’ contract, but the table below then lists all the provision separating it out into direct payments and directly commissioned provision. Some provision was yet to be sourced. The contract stated stationery, printer/ink, laptop and swimming lessons were to be funded by direct payments. Ms Y refused to sign this document on the basis she had not requested a direct payment and costings for commissioned provision were inaccurate.
43. The Council’s complaint response cited Ms Y’s refusal to sign the contract or agree costs for directly commissioned providers as a reason why some provision in the Plan was not secured and said it was a legal requirement. The Council has now accepted this was fault and in future it will make clear that details of provision is being shared simply to inform the parent.
44. There is a disagreement about the type (and cost) of the computer needed. The Council says the EHC Plan does not specify a particular type of computer. This is correct, but the Plan also does not specify the mentoring should utilise gaming. Having decided to use a mentor that uses gaming to engage Z, the Council should have taken this into account when deciding what equipment Z required to access the mentoring it had commissioned.
45. The Council has now confirmed that it will provide a suitable computer which will be sufficient to access the gaming mentor provider, but it does not consider the computer needs the level of specification Ms X has stated. It is not for the Ombudsman to question the judgement the Council has made. Once the computer has been provided if there are concerns raised about access the Council can consider these.
46. It is not fault for the Council to ask a parent to sign an agreement to return equipment provided on loan, but this is not the same as a direct payment agreement or requiring authorisation for commissioning.
47. There have been no termly professional meetings. The Council has now accepted the type of meetings required by the Plan were not held and it has taken steps to ensure these now go ahead.
48. The Council has failed to secure any speech and occupational therapy. This is fault. Z has now been without this provision for a second year. The Council told me in response to my draft decision that private therapists would not generally assess without a school base and so would not undertake assessments until Z returned to a school setting. EOTAS is only named in an EHC Plan where it has been determined a child cannot attend any school for some, or all, of their special educational provision. The Tribunal decided Z should receive therapies outside of school; the Council had an absolute duty to secure these as set out in the Plan, failure to do so was fault.
49. I understand the Council has found it difficult to commission therapies in a restricted market, however the law is clear that there is no ‘best endeavours’ defence to not securing provision in an EHC Plan. The Council has now identified providers and is taking steps to address the underlying market difficulties.
50. The Council has failed to secure PE in the EHC Plan. This is fault. The Plan states this should be activities of Z’s choosing. Ms Y suggested two activities Z enjoys. The Council agreed that Z should have swimming lessons. It then failed to secure these expecting Ms Y to facilitate transport and supervision at lessons in a council pool, when Ms Y has not consented to do so. It then replaced this offer with leisure membership.
51. My understanding is Z cannot access the leisure centre independently, the Council has not provided transport or staff to support Z at the pool including get changed, and pool staff have not confirmed they can meet Z’s needs.
52. The Council cannot rely on parents to provide special educational provision when they have not volunteered to do so. The Council cannot expect a parent to act as a carer or personal assistant to support special educational provision. The Council needs to secure PE activities with the appropriate level of adult support. This does not have to be specialist lessons, but the adult supporting Z to do PE activities does need to have the expertise set out in the Plan. I find the wording does not restrict this to provision made in a school.
53. The Council has now confirmed to me that it accepts my finding the proposed leisure membership does not meet the wording of the Plan for PE activities and adult support is required.
54. In response to my draft decision both Ms X and the Council referred to play therapy. The Council said this stopped because it was complete, but resumed in March, and it was never Section F provision so there was no obligation to provide it. Ms X told me it was agreed that play therapy would be used to meet the Section F targets around ability to interpret thoughts and feelings of others and pragmatics of conversation. This latter provision is specified in the EHC Plan and had to be delivered in some format. The Council has confirmed to me that provision to meet these needs is in place.
55. The Government has issued Guidance ‘Free School Meals’ which says although no specific provision is made in legislation for free school meals to be provided to children in receipt of EOTAS, it expects Councils to consider making equivalent provision to eligible pupils for the purpose of supporting them to benefit fully from the education being provided. The Guidance reminds councils to have regard to the Human Rights Act and public sector equality duty when considering their approach.
56. Ms X says the Council agreed Z should be provided with free school meals in the way of vouchers, but it paid this at the end of each term in arrears, not upfront. While it is for councils to decide how to arrange its provision, the Council should seek to do so in a way which considers the purpose of free school meals, which is for the pupil to benefit from the education at the time it is provided, and in compliance with equality duties.
57. I acknowledge there was no legal duty to provide free school meals to EOTAS pupils, this was a discretion, but where a Council makes a promise to put provision in place, we would expect the Council to honour the agreement it made in a timely manner. The Council has now accepted the delay was service failure and has provided vouchers to Ms X for this year and taken steps to ensure timely provision to EOTAS pupils in future.

Injustice

58. Z has missed out on the following provision in his EHC Plan:
• Speech and occupational therapy
• Provision of a computer
• PE
• Professional meetings to monitor progress and provision
• A few weeks of academic tuition and mentoring in January 2025.
59. Free school meal funding was delayed.
60. We have issued Guidance on Remedies which sets out that where a child has missed out on education due to fault, councils should consider making a symbolic financial payment to acknowledge the impact of that fault. We suggest a range of £900 to £2400 per term, depending on the level of provision missed and individual circumstances.
61. Ms Y has been put to unnecessary time and trouble raising complaints to try and get Z’s provision secured.
62. I am pleased to note that in response to my draft decision the Council has already taken steps to remedy much of this injustice, and it has agreed to the further actions set out below.

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Agreed Action

Within four weeks of my final decision, the Council will:

63. Apologise to Ms Y for the faults identified in this decision statement.
64. Pay Ms Y, on behalf of Z, £2400 to acknowledge the missed special education provision from January to November 2025.
65. Supply the laptop.
66. Liaise with Ms X/Ms Y about how PE activities will be delivered.
67. Check the speech and occupational therapy has started.
68. Ensure arrangements are in place for the planned professional meeting in January.

Within two months of my final decision, the Council will:

69. Provide the Ombudsman with evidence of the actions it says it has initiated to:
• Implement a strengthened monitoring process to ensure compliance with EHC Plan specified coordination requirements, for example team around child meetings and compliance checks at annual review.
• Review its free school meal policy and practice ensuring timely issue of vouchers.
• Improve commissioning practices for therapy as well as monitoring systems and tracking of provision.

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Decision

70. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman