Summary: Mrs X complained the Council failed to secure the special educational provision detailed in her child’s Education, Health and Care Plan. We do not find the Council at fault.

The complaint

1. Mrs X complained the Council failed to provide the section F provision detailed in her child, Y’s, Education, Health and Care Plan when he was unable to attend school. Mrs X told us the Council’s lack of accountability has caused unnecessary stress and hindered Y’s right to a proper education. Mrs X also told us Y’s academic progress has been impacted, and he has missed critical opportunities for learning and development. Mrs X would like the Council to provide a financial payment.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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)
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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What I have and have not investigated

7. Mrs X complained to us in April 2025. The law says we cannot investigate late complaints unless there are good reasons. I have seen no reason Mrs X could not have complained to us sooner so the earliest start date for my investigation was April 2024.
8. Based on the evidence provided by the Council, it completed an annual review in May 2024 and issued a final Education, Health and Care Plan in June 2024. Mrs X appealed this Plan as she did not agree with the setting named.
9. There is not enough evidence of fault in the Council’s actions for me to investigate matters between April and June 2024.
10. 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)
11. 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.
12. 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, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
13. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
14. Mrs X submitted an appeal in June 2024. The Council issued a final amended Plan following a Tribunal order in March 2025. Therefore, this period of time cannot be investigated.
15. I have investigated the Council’s actions in securing the special educational provision detailed in Y’s EHC Plan between March 2025 and December 2025.

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How I considered this complaint

16. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
17. 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

Legal and administrative background

EHC Plans

18. 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. 
19. 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)  
20. 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. 

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. 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.

Free school meals

23. ‘Free school meals: guidance for local authorities, maintained schools, academies and free schools’ (the Guidance) sets Council’s can provide free school meals to pupils using the power set out in section 61 of the Children and Families Act 2014 (the power to arrange special educational provision through ‘education other than at school’ (EOTAS)). The Guidance says council’s should consider providing free school meals to pupils on EOTAS where:
• The pupil would meet the benefits criteria if they attended a maintained setting; and
• The meals are provided alongside education and mean the pupil can benefit fully from that education.
24. If a pupil meets the above criteria, the Council should then think about whether their individual circumstances mean they should have free school meals.

What happened

25. The Council issued a final Plan in March 2025. This Plan detailed that Y should receive EOTAS made up of 25 hours of tuition weekly across two providers. The two providers are a tuition programme and a sports programme.
26. The Council has provided evidence it secured the tuition provider for 14 hours per week between the end of March 2025 and the end of June 2025. From the last day of June 2025, the Council secured tuition for 9 hours per week as it was felt this was all Y could manage.
27. The Council has provided evidence it paid for Y’s lunch at the tuition provider between the end of March 2025 and December 2025. This was provided as part of Y’s EOTAS offer rather than through the free school meals eligibility.
28. The Council also secured 2 hours per week at a sports academy requested by Y. Y refused to attend this provision from June 2025 however the provision remained available to Y.
29. In July 2025 Mrs X contacted the Council to request a personal budget. As this was requested outside of the annual review process the Council did not consider this request. The Council told us it has deferred consideration of a personal budget until the annual review process.

My findings

30. There is no evidence of fault in the Council’s actions in securing section F provision for Y. The Council agreed a set amount of weekly hours and ensured these were funded and available and to Y. Although Y did not access the 25 hours per week of education detailed in the EHC Plan, there is evidence to show this was due to Y not being able to engage in the hours rather than the Council failing to secure or fund the provision.
31. There is no evidence of fault in the Council’s consideration of providing meals for Y.
32. There is no evidence of fault in the Council’s refusal to consider Mrs X’s personal budget request outside of the annual review process.

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Decision

33. I find no fault. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman