• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Action
• Decision

The Ombudsman's final decision:

Summary: The Council failed to ensure Mrs X’s child Y received swimming provision in line with their Education, Health and Care (EHC) Plan EOTAS (Education other than at school) package during the 2024/25 academic year due to a lack of transport arrangements. Its transport panel also failed to properly consider Mrs X’s request for transport costs for some of Y’s other provision. It also delayed issuing Y’s amended EHC Plan following an annual review. The Council agreed to apologise to Mrs X and make a payment for the injustice caused. It will also carry out service improvements and reconsider Mrs X’s request for transport reimbursement.

The complaint

1. Mrs X complained the Council refused to pay transport costs for some of her child Y’s provision as outlined in their Education, Health and Care (EHC) Plan EOTAS (Education other than at School) package. Mrs X said Y has not been able to access some of their provision as a result.
2. Mrs X further complained the Council failed to provide sufficient funds for a laptop and has not issued Y’s amended EHC Plan following an annual review in July 2025.
3. Mrs X said Y’s loss of provision is impacting on their education and development and has caused her distress and financial loss.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)
7. 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

8. I have investigated from July 2024 when Y’s EHC Plan was issued following orders from the SEND tribunal until July 2025 which is the end of that academic year and just after Mrs X complained to us. I have considered the delays in Y’s annual review process which took place in July 2025 as there is continuing injustice.
9. Mrs X will need to make a new complaint to the Council about any new concerns she has about Y’s education and provision for the 2025/26 academic year.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. 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

Relevant law and guidance

EHC Plans

12. 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.
13. 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. 
  • Section J: Details of any personal budget required to fund the provision in the EHC Plan.

14. 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)

SEND tribunal

15. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs.

Personal Budget

16. 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.
17. 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. The personal budget cannot be used for any provision which is not specified in Section F.

Reviewing EHC Plans

18. 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 council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews.
19. 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.

EOTAS (Education other than at School)

20. EOTAS is education for children and young people with EHC Plans who cannot attend any educational setting due to their special educational needs. Instead they receive their education and specialist provision either at home or within another external setting that is not a registered educational setting.
21. The Council has the same legal duty as outlined in paragraph 12 to ensure the child or young person receives all of the provision outlined in Section F of the EHC Plan.
22. EOTAS provision is usually delivered and funded using a personal budget as outlined in paragraphs 13 and 14.

Transport costs for children with an EOTAS package

23. Children of statutory school age are eligible for free school transport under the Education Act 1996. However, this duty does not apply when those children do not receive their education in a school setting, such as those with an EHC Plan and an EOTAS package.
24. If a child or young person needs transport to access provision outlined in Section F of an EHC Plan and without it they cannot access that provision, it may mean the Council has not secured that provision and is in breach of its legal duties as outlined above.
25. If the Council has provided a parent with a direct payment to arrange and commission the child’s provision then it is likely the Council will have met its duty to ‘secure’ the provision by virtue of making that payment. Parents and carers should ensure that the direct payment they request is sufficient to cover the costs of transport if that is likely to be required.

The Council’s transport policy for children with an EHC Plan

26. The Council’s transport policy outlines in general how it considers transport for children with SEN or an EHC Plan to get from home to school. It says if a child is not eligible for transport assistance the parents/carers are responsible for arranging the transport.
27. The policy does not outline how it considers transport for children with an EHC Plan who do not attend school, such as those with an EOTAS package.

What happened

28. Mrs X has a child, Y who has special educational needs and disabilities which have affected their ability to attend a school setting. Y has an EHC Plan which prior to the latest version named a mainstream school setting. Mrs X and Y live in a rural location with very limited public transport and so, when Y attended school they qualified for home to school transport.
29. Following an appeal to the SEND tribunal the Council issued Y with an amended EHC Plan in July 2024 which outlined Y was to receive an EOTAS package. Section F of the EHC Plan outlined the specialist provision which Y was entitled to. The relevant parts to this complaint include:
    • Lego therapy on a one-to-one basis in a small group setting at least once a week.
    • Nine hours of one-to-one tuition a week in English, Maths and Science.
    • Six hours of online learning per week in additional subjects.
    • One hour of swimming a week.
    • 40 minutes of Emotional Literacy a week on a one-to-one basis.
    • Regular trips into the community using public transport.
    • £200 for a laptop.
30. Records show that Mrs X asked the Council for transport costs while proposing and agreeing the personal budget for Y’s EOTAS package. She also asked the Council to consider paying for a more expensive laptop/computer for Y, asked for costs for Y to attend a local private swimming pool and funds for entrance fees to things like museums and wildlife parks. Mrs X explained that the nearest local authority swimming pool would require transport costs as it was over an hour travelling time. Mrs X said she would also need to accompany Y in the pool. Mrs X suggested a local horse provision for the emotional literacy. She also asked for funds for consumables and resources such as paper, printer ink and books.
31. The Council emailed Mrs X explaining what it had agreed to be part of the personal budget. It said it would only pay £200 for a laptop and it was up to Mrs X to fund the difference if she wanted a more expensive one. It said it would only pay for swimming at a local leisure centre not a private one.
32. Section J of the EHC Plan outlined Y’s personal budget and how much was being allocated for each provision. It said Mrs X would manage the personal budget via a direct payment which the Council would pay in 12 monthly instalments. The Plan notes that the costs for swimming and emotional literacy were yet to be agreed.
33. Email records show Mrs X trying to resolve swimming provision with the Council. She said her local pool was closed so she suggested a members only swimming club and reiterated the nearest local authority pool required significant transport costs as well as entrance for her as Y’s carer. Therefore, the members only pool would work out cheaper. The Council said it had only approved one hour of swimming per week for Y up to £7.50 per session so it would not increase funds. It said it would not support travel costs as it was not educational provision.
34. Evidence shows Mrs X transported Y to one science lesson a week as well as Lego therapy using her own transport. Y was not receiving any swimming due to the Council’s refusal to properly fund it.
35. Mrs X complained to the Council about the Council’s refusal to pay transport costs and cover funds for the laptop and consumables. She said
    • Y was entitled to free home to school transport when attending school so she wanted her costs covered so she could provide provisions in Section F.
    • She could not provide provision such as swimming, Lego therapy and emotional literacy (at the horse provision) without transport costs.
    • The nearest pool was a 28 mile round trip and she need to accompany Y in the pool as they cannot swim unaided
    • Y required costs for days out otherwise they would become isolated at home.
    • £200 was not sufficient for a laptop.
    • Y would receive consumables for free if they attended school.
36. The Council responded to Mrs X in January 2025. Its main points in response were:
    • Transport was not specifically written into Y’s EHC Plan as it is not special educational provision.
    • It would present Y’s circumstances at its transport panel (the Council said it only set this up in February 2025).
    • Given the swimming pool difficulties, it would agree a membership for Y only at the private club. It would present transport costs for this at the panel.
    • Y’s EHC Plan made no reference to museums etc or consumables and therefore there was no obligation to provide this.
    • It would make further enquiries around whether £200 was sufficient for a laptop.
37. In February 2025 Mrs X sent the Council her mileage claim for the panel. This included costs already incurred transporting Y to a science lesson once a week at an external provision and a week of emotional literacy (this provision broke down as Y could not cope with it). It also included her proposal for costs for swimming.
38. Mrs X escalated her complaint to stage two of the complaints procedure. She asked why the Council was only just taking her requests to panel when she first requested transport assistance in July 2024. With regards to the Council refusing to fund trips out she pointed out Y’s EHC Plan included ‘access to learning experiences through the community via community based projects’. She said Y had still not accessed swimming provisions and it had not considered whether £200 for a laptop was sufficient as promised.
39. In mid-March the Council’s transport panel met to consider Mrs X’s requests for mileage. The Council emailed Mrs X with the outcome which was ‘Refused – not within the transport policy’. There are no minutes available from the panel meeting however internal records show the panel refused because of the following reasons:
    • No exceptional circumstances.
    • No requirement to provide transport costs as per its legal advice.
    • Travel funds are not provided where EOTAS packages via a personal budget is in place.
40. The Council responded to Mrs X at stage two of the complaints procedure. It said:
    • The transport panel concluded there was no requirement for mileage costs.
    • The Council had funded Y’s swimming costs since March 2025.
    • Its assessment concluded that £200 was sufficient for a laptop to fulfil the requirements of Y’s EHC Plan.
    • ‘Experience’ learning or days out were not part of Y’s EHC Plan.
41. Mrs X remained unhappy with the Council’s complaint response and complained to us.
42. Mrs X told us the Council paid a total of £210 for Y’s swimming provision which covered membership however it refused to fund the mileage (£17 per trip which she said she cannot afford) or fund entrance for Mrs X. As a result Y has not received any swimming provision during the 2024/25 year.
43. With regards to emotional literacy she said the Council provided the funding for this but again would not provide travel costs and she could not find another local provider after the horse provision failed after six sessions. So, she returned the funding unspent.
44. Mrs X confirmed Y received all of the science tuition provision and Lego provision. Mrs X said Lego provision was required to be outside of the home and takes place alongside a science lesson which she has transported Y to. She believes the Council should reimburse the mileage for this.
45. Since complaining to us the Council held Y’s annual review at the start of July 2025. The records of this show it intended to amend the EHC Plan. To date (at the time of writing) the Council has not issued an amended Plan.

My findings

46. As explained above there is no legal duty to provide transport or fund transport for children with an EHC Plan and an EOTAS package. However, the Council’s Section 42 duty to make sure the child or young person receives the special educational provision set out in section F still applies.
47. Therefore, if a child or young person needs transport to access provision outlined in Section F of an EHC Plan and without it they cannot access that provision, it may mean the Council has not secured that provision and is in breach of its legal duties as outlined above.

Swimming provision

48. Y was entitled to one hour of swimming per week from the point their EHC Plan was issued, so from September 2024 onwards. The nearest pool available is a 28 mile round trip. The evidence also shows Y cannot enter the pool unaided. Therefore, in order to secure this provision, it requires transport and for Mrs X to escort Y in the pool. Therefore, transport is required to a swimming pool in order for Y to access the provision. Without transport and an escort Y cannot access this provision and so the provision is not secured.
49. The Council considered Mrs X’s request for mileage at its transport panel but concluded there was ‘No requirement to provide transport costs’ and it was ‘not within its transport policy’. Prior to this its stance was that travel was not special educational provision. The main issue here is that the transport policy does not include consideration about how it deals with children with an EOTAS Plan. Therefore, there is no mechanism for considering whether the lack of transport means the child cannot access the provision in an EHC Plan. So, the conclusions are therefore flawed because the panel did not consider the correct test which was ‘does Y need transport to access the swimming provision’ which in this case is yes.
50. The Council failed to ensure Y received swimming provision in line with their EHC Plan which is fault and meant Y lost that opportunity to receive it for the whole of the 2024/25 academic year.

Lego provision

51. Y’s EHC Plan in section F says Lego provision should take place in a small group setting on a one-to-one basis. Although Y has received the Lego provision this was because Mrs X has transported them at her own cost. Without this, on balance, it is unlikely Y could have accessed the provision. The Council considered Mrs X’s mileage request at panel but refused it on the same basis as explained in paragraph 49. So, the incorrect test was again used because the panel failed to consider whether a lack of transport would mean Y could not access the provision in Section F which is fault.

Community trips

52. Y’s EHC Plan states Y ‘will access the community using public transport’ and have ‘access to learning experiences through the community’. While the EHC Plan does not make provision for entrance fees and specific activities Y cannot access the community or use public transport without sufficient funding. There is no evidence the Council provided funds for Y to access the community which is fault and meant he lost this opportunity for the whole 2024/25 academic year.

Emotional literacy

53. Records show the Council provided a sufficient budget for Mrs X to secure emotional literacy. This began at a horse provision which ultimately failed as Y could not cope with it. Mrs X said she could not find another local provision but I have not seen evidence either showing Mrs X proposed any other emotional literacy provision further away. On balance, the Council did secure this provision by way of funding it in line with the personal budget and was not at fault.

Science provision

54. Y’s EHC Plan says they will receive nine hours of one-to-one tuition each week. While it may be beneficial for Y's development to receive some provision away from home there is nothing in the Plan to support this. Therefore, I cannot say the Council should fund transport for this provision and so there is no fault.

Y’s laptop

55. The Council allocated £200 to fund a laptop for Y. There is nothing in the EHC Plan that evidences Y requires a high specification or high powered laptop. Therefore, on balance, £200 is sufficient to meet Y’s needs with regards to the provision in the Plan.

Annual review delays

56. The Council held Y’s annual review at the start of July 2024 with an intention to amend the Plan. To date, the Council has not issued the amended EHC Plan which is currently a delay of 20 weeks and fault. This is causing Mrs X frustration, uncertainty and delayed appeal rights.

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Action

57. Within one month of the final decision the Council agreed to take the following action:
    • 1. Apologise to Mrs X and Y for failing to properly consider whether to provide transport costs for swimming, Lego and community trips for Y as outlined in Y’s EHC Plan during the 2024/25 academic year. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
      2. Pay Mrs X a total of £1250 to acknowledge Y’s loss of swimming and community trips provision during the 2024/25 academic year as well as the frustration and delayed appeal rights caused by the annual review delays
      3. Reconsider Mrs X’s request for mileage reimbursement for Lego therapy provision during the 2024/25 academic year. The Council should consider whether it is possible for Y to access that provision with the budget provided without covering Mrs X’s transport costs.
      4. Issue Y’s amended EHC Plan.
      5. Revise its Education Transport Policy to include:
         1. details of how it deals with transport requests for children and young people with an Education, Health and Care (EHC) Plan and EOTAS (Education other than at School) package;
         2. that transport will generally not be provided for children with an EOTAS package unless it is included in the EHC Plan and if provision can be accessed without travel costs. This is so it is clear to parents from the outset; and
         3. an explanation that it will consider requests for providing transport where it is likely the child would not be able to access a provision without transport assistance.
      6. If the Council decides to revise its policy it should do so within two months of the final decision.
      7. Provide guidance to the transport panel so it is aware that when parents/carers of children with an Education, Health and Care (EHC) Plan and EOTAS (Education other than at School) package apply for transport costs the panel is aware it should fully consider whether the child can access the provision without transport assistance before refusing a request.
58. The Council should provide us with evidence it has complied with the above actions.

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Decision

59. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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