Summary: We have found fault by the Council. It failed to secure the special educational provision specified in Y’s Education, Health and Care Plan promptly following issue of the final amended Plan in November 2024, resulting in Y missing specialist provision. The Council has agreed to our recommendations.

The complaint

1. Mrs X complains the Council delayed arranging EOTAS provision set out in her son, Y’s, Education, Health and Care (EHC) Plan. Mrs X says the Council finalised the Plan in November 2024 following a Tribunal decision but failed to implement the agreed package in a timely manner. Mrs X also complains about poor communication, lack of transparency in decision-making, and inadequate consideration of Y’s identified needs. She says the Council’s failure to act with sufficient urgency has caused significant distress to the family and prolonged Y’s absence from education.

Back to top

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. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have not investigated

5. Mrs X later made a further complaint to the Council about continuing delay in securing aspects of Y’s provision after March 2025, including sensory provision and IT equipment. Those later matters were considered by the Council in a separate complaint response.
6. My investigation has focused on the Council’s actions up to the date of its final complaint response in March 2025. I have not investigated events after that date, which fall outside the scope of this investigation. If Mrs X remains dissatisfied with the Council’s response to those later matters, she may bring a separate complaint to the Ombudsman.

Back to top

How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council were offered an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Relevant guidance and legislation

EHC Plan

9. 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.
10. The EHC Plan is set out in sections which include: 
• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.

Councils’ duty to secure special educational provision

11. 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)  
12. 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. 

Education Other Than at School (EOTAS)

13. For some children and young people, education in any setting would be inappropriate due to their special educational needs. This is referred to as EOTAS.
14. If the Council agrees it would be inappropriate for any required special educational provision to be delivered in a school, it can agree to arrange for it to be delivered somewhere else, for example at home. The Council must arrange and pay for that provision.

Alternative provision

15. Under section 19 of the Education Act 1996, councils must “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.” (Education Act 1996, section 19(1))
16. The courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
17. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
18. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.

Back to top

What happened

19. Mrs X’s son, Y, has an EHCP. Following an appeal to the SEND Tribunal, a hearing took place in early October 2024.
20. The Council issued Y’s amended final EHCP in early November 2024. The Plan provided for education otherwise than at school (EOTAS). Section F set out a package of provision including mentoring support, therapeutic mental health input, specialist learning provision, sensory support and IT equipment.
21. Mrs X says that after the Plan was issued, the agreed provision was not put in place. She contacted the Council in January 2025 to complain that Y was not receiving the provision specified in his EHCP.
22. The Council’s Stage 1 complaint response, dated early February 2025, acknowledged there had been delay in implementing the provision. It apologised and said provision would be in place from the start of the spring term.
23. In mid-January 2025, the Council’s SEND Panel considered funding for elements of the EOTAS package. The Panel partially agreed funding but requested further information, including cost details for equipment.
24. In February 2025, the Council confirmed funding for two hours per week of mentoring support with Provider 1 and one hour per week of therapeutic mental health support with Provider 2. Provider 1 contacted the family in late February 2025 and mentoring sessions began in early March 2025.
25. The Council says v Provider 1 advised there could be a waiting period of one to three months before services could commence. The Council also says it required information about laptop specifications and associated costs before funding could be approved.
26. In mid-March 2025, the Council received quotes for IT equipment. The SEND Panel approved funding for a laptop and associated software at the end of March 2025.
27. The Council arranged for People Plus to manage payments for the EOTAS package. The Council says there were delays in setting up these arrangements.
28. Mrs X escalated her complaint to Stage 2 in mid-February 2025. She said the EOTAS package had still not been fully implemented and raised concerns about occupational therapy recommendations and the provision of a laptop.
29. In its Stage 2 response dated mid-March 2025, the Council acknowledged that Y’s EOTAS package was still being implemented. It apologised for the delay and said funding had now been agreed for elements of the package and other aspects were in progress.
30. Mrs X complained to the Ombudsman. She says Y did not receive the provision set out in his EHCP for several months after it was finalised, which caused him to miss education and caused significant distress to the family.

The Council’s response to my enquiries

31. As part of my investigation, I made enquiries of the Council. In summary, it said:
• it had worked to set up the provision as quickly as possible following the Tribunal decision and issue of the final EHCP.
• after the Plan was finalised in November 2024, the case transferred from its Tribunal team to its Reviews team. The allocated case officer needed time to contact the family, identify appropriate providers for the provision specified in Section F, obtain cost information and seek funding approval through its SEND Panel process.
• funding could not be approved without detailed costings and specifications. It explained that the SEND Panel first considered the case on 21 January 2025 but required further information, including quotes for IT equipment, before agreeing funding in full.
• there were factors outside its control which contributed to delay. It referred to:
1. Waiting times indicated by providers, including Provider 1 advising of a potential one to three month lead-in period;
2. The need to establish payment arrangements through People Plus
3. Staffing pressures and the timing of the Christmas period; and
4. The need for multi-agency panel attendance in order for decisions to be made.
• it acknowledged that setting up the provision took longer than it had aimed for and said it had apologised for delay in its complaint responses.
• in relation to interim provision, the Council said it would ordinarily offer Home Bridging Team tuition as a temporary measure. It said this was reportedly declined by the family due to previous difficulties engaging Y in tuition. However, the Council said it had not located written evidence that such an offer was made following issue of the final EHCP in November 2024.
32. When invited to suggest a remedy, the Council said that if Provider 2 had provided support in November or December 2024 and that provision formed part of Section F, reimbursement could be considered. It did not propose a symbolic payment or other remedy for delay.

Back to top

Analysis

Delay in implementing the provision in Y’s EHCP

33. As set out above, the Council must secure the special educational provision specified in Section F of an EHCP. That duty arose when the Council issued Y’s final amended EHCP in early November 2024.
34. Mrs X complained in January 2025 that none of the EOTAS provision in the EHCP had been put in place. The Council acknowledged delay in implementing the provision and apologised. It said Y’s case did not go to the SEND Panel until 21 January 2025 due to internal funding approval arrangements, officer availability in November and December 2024 and the Christmas period.
35. The evidence shows the Council did not confirm funding for mentoring and therapeutic support until February 2025, with mentoring sessions starting in early March 2025.
36. The EHCP also required the Council to provide “a laptop / iPad to ensure [Y] is able to type and research information as he chooses”. This is specified in Section F and is part of the Council’s duty to secure provision. Funding approval for the laptop was not agreed until the end of March 2025. I have not seen evidence confirming when the laptop was actually provided. In the absence of that evidence, I cannot say exactly when Y received this element of his provision, except that it was not before March 2025.
37. The Council has explained that some delay resulted from the need to identify providers, obtain costings and specifications, and secure panel approval. It also referred to provider lead-in times and delays setting up payment arrangements through People Plus.
38. I recognise that arranging EOTAS provision can involve practical steps. However, the Council’s duty is to secure the provision set out in Section F. The need to follow internal funding and panel processes, or to await quotes or payment arrangements, does not remove or suspend that duty.
39. The family provided the Council with a costed provision map in December 2024 identifying providers and the intended package. Even so, the Council did not put the matter to panel until late January 2025 and key elements of provision were not confirmed until February and March 2025.
40. On the balance of probabilities, I find the Council did not secure the provision specified in Section F of Y’s EHCP for a period of several months following issue of the final Plan in November 2024. This was fault. The delay included securing the agreed EOTAS support and providing the required IT equipment.

Interim provision pending implementation

41. Where a child is out of school and not otherwise receiving suitable education, councils may also have duties to arrange alternative provision (often referred to as section 19 provision). In this case, the Council says it would ordinarily offer Home Bridging Team tuition as an interim measure and that this was reportedly declined by the family. However, the Council also said it had not located written evidence that such an offer was made following issue of the final EHCP in November 2024.
42. In the absence of written evidence of an offer of interim provision after November 2024, I cannot be satisfied the Council took appropriate steps to ensure Y had access to any education while the Section F package was being arranged. This supports my finding that Y was without the educational provision the Council was responsible for securing during this period.

Communication and consideration of Y’s needs

43. Mrs X has also raised concerns about poor communication and inadequate consideration of Y’s identified needs. The amended EHCP issued following the Tribunal decision specified specialist EOTAS provision reflecting Y’s assessed needs. I have not found evidence that the Council failed to consider those needs when finalising the Plan. The fault I have identified concerns delay in securing that provision, rather than failure to recognise or specify Y’s needs. While communication about implementation timescales could have been clearer, I do not find separate fault beyond the underlying delay.

Injustice

44. The Council issued Y’s final amended EHCP in early November 2024. The evidence indicates that key elements of the EOTAS package were not confirmed until February 2025 and mentoring did not begin until early March 2025. Funding for the required laptop was not approved until the end of March 2025 and I have not seen evidence confirming when it was provided.
45. On the balance of probabilities, I find Y did not receive the provision specified in Section F of his EHCP for a period of several months following issue of the final Plan. While it is possible that some therapeutic support may have been delivered in November or December 2024, the Council has not provided clear evidence that this was commissioned and secured by it as part of the EHCP. In the absence of such evidence, I cannot conclude that Y received his full Section F provision during that period.
46. The EOTAS package formed Y’s educational provision. The delay therefore meant he did not receive the specialist mentoring, therapeutic input and equipment identified as necessary to support his learning and reintegration into education. This represents a loss of educational provision.
47. Mrs X has also described the distress caused by the delay and the uncertainty surrounding when provision would begin. The Council acknowledged delay and apologised. However, the period of uncertainty between November 2024 and the eventual implementation of provision would reasonably have caused avoidable frustration and anxiety.
48. I have not been able to quantify precisely the number of hours of provision missed because the evidence does not clearly establish whether any elements of the package were partially delivered before March 2025. However, the delay in securing the package as a whole represents a significant period in which Y did not receive the provision the Council was under a duty to secure.
49. I recognise Mrs X has described the significant frustration, anxiety and loss of trust caused by the delay in implementing Y’s provision following the Tribunal decision. The period of uncertainty about when support would begin, and the need for Mrs X to pursue the Council for updates, would reasonably have added to the family’s stress. While I have not found separate fault in the Council’s complaint handling, I accept the overall experience would have been unsettling and distressing.

Back to top

Action

50. To remedy injustice in this complaint, and prevent similar occurrences, the Council will:
1. Apologise to Mrs X and Y for the injustice caused by the faults identified. The apology should acknowledge that the Council failed to secure the special educational provision specified in Section F of Y’s Education, Health and Care Plan promptly following issue of the final amended Plan in November 2024.
2. Make a symbolic payment of £1,800 to Mrs X for Y’s benefit in recognition of the injustice caused by the Council’s failure to secure the special educational provision detailed in Y’s Education, Health and Care Plan between early November 2024 and early March 2025. In line with our guidance on remedies for children out of school, this reflects the loss of specialist provision for a period slightly longer than one school term following issue of the final Plan.
3. Review its process for implementing Education, Health and Care Plans following Tribunal decisions to ensure that special educational provision specified in Section F is secured promptly upon issue of the final Plan and is not delayed by internal funding approval or panel processes.
51. The Council will complete actions a-b within one month of the Ombudsman’s final decision, and action c within three months of the Ombudsman’s final decision.

Back to top

Decision

52. I find fault causing injustice. The Council failed to secure the special educational provision specified in Y’s Education, Health and Care Plan promptly following issue of the final amended Plan in November 2024, resulting in Y missing specialist provision. The Council has accepted our recommendations.

Back to top

Investigator's decision on behalf of the Ombudsman