Summary: We found fault with the Council delaying putting in place Mrs X’s child’s Education, Health and Care Plan provision by varying time periods with up to one-year delays. This fault by the Council caused Mrs X’s child to miss formal education and support provision from their Education, Health and Care Plan. The Council agreed to apologise to Mrs X and pay her £3,200 for the missed education and provision.

The complaint

1. Mrs X complained the Council failed to put in place Education, Health and Care Plan provision for her child since a tribunal decision in September 2024. Mrs X said this left her child with little education after being unable to attend their previous school.
2. Mrs X also complained the Council rejected her request for a Personal Budget at panel on 22 January 2025 despite the tribunal ordering this provision and the Council being unable to fulfil it.

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The Ombudsman’s role and powers

3. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. 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)
5. 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)
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(i), 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 Mrs X’s complaint about the Council’s failure to deliver Education, Health and Care Plan provision from her child’s plan following the tribunal decision in September 2024. I have referenced some matters before this date for context but have not investigated the Council’s actions.
9. 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. Mrs X appealed her child’s February 2024 Education, Health and Care Plan to the tribunal. Mrs X requested Education Other Than At School (EOTAS) for her child and disputed the proposed delivery of the Section F EHC Plan provision through both delivery method and number of hours.
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). As such, I have not investigated matters before September 2024 because these are too intertwined with Mrs X’s appeal to the tribunal covering Sections F and I.
11. Any issues before Mrs X’s appeal to the tribunal would be beyond 12 months from the date Mrs X brought her complaint to the Ombudsman and therefore outside our jurisdiction to investigate.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. Mrs X and the Council had an opportunity to comment on my draft decision before I made a final decision.

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What I found

Education, Health and Care Plans

14. 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. 
15. If the appeal is made about the content of a child’s EHC Plan relating to a child’s educational needs and educational provision specified in a plan, and the local authority has contested the appeal, the local authority must issue the amended EHC plan within 5 weeks of the date the First-tier Tribunal issued its order.
16. The Ombudsman can look at any delay in the assessment and creation of an EHC plan as well as any failure by the Council to deliver the provision within an EHC plan.

What happened

17. In February 2024, the Council issued an amended Final EHC Plan for Mrs X’s child, Y. At this time, Y was not attending school. Mrs X appealed the EHC Plan to the Special Educational Needs and Disability (SEND) Tribunal.
18. In September 2024, the tribunal issued its decision, following a hearing, about Y’s EHC Plan. The tribunal instructed the Council to make specific changes to the EHC Plan and that provision should be provided through EOTAS and outlined a Personal Budget for some of Y’s EHC Plan provision.
19. On 3 October 2024, the Council produced and shared Y’s amended final EHC Plan with Mrs X. This EHC Plan confirmed Y needed EOTAS and outlined the bespoke curriculum it should provide for Y. This included the following quantifiable provisions:
1. Five hours per week of bespoke curriculum devised for autistic children.
2. Ten hours of one-to-one tuition per week with a qualified teacher.
3. Five hours per week delivered one-to-one with a teaching assistant/learning support assistant who will support extensions to the curriculum, occupational and speech and language support and activities to encourage physical activity and social communication development.
4. Two hours a week of online mentoring and emotional wellbeing support through gaming.
5. Five hours a week therapeutic learning provision.
6. An appropriate co-ordinator for the EOTAS package one hour every fortnight.
7. Two, two-hour weekly sessions for social communication and social skills.
8. One hour per week support for emotional wellbeing through counselling/psychotherapy.
9. An assessment by an Occupational Therapist within five weeks of the finalised EHC plan. The Council should then add the outcome of Occupational Therapist report to the EHC Plan in a quantified and specific manner.
10. An already specified Personal Budget for two hours of Physical Education each week.
20. The Council and Mrs X liaised about delivery of Y’s EHC Plan provision. Mrs X asked the Council to consider a larger personal budget for Y so she could source provision herself.
21. In January 2025, Mrs X submitted a request to panel for a Personal Budget for Y. The Council considered Mrs X’s request at panel but advised it needed additional information before agreeing to a Personal Budget.
22. Mrs X made a formal complaint to the Council in February 2025. Mrs X said the Council had not put in place the full EHC Plan provision since the tribunal hearing in September 2024 meaning Y had been left without education.
23. The Council provided a stage one complaint response to Mrs X. The Council said it issued the amended final EHC Plan within five weeks of the tribunal hearing and had arranged for delivery for some of Y’s EHC Plan provision already since the end of 2024. The Council said it had sourced further provision in line with Y’s EHC Plan in January 2025 and it only now needed to source one outstanding piece of provision. The Council said it takes time to put in place EHC Plan provision and did not uphold Mrs X’s complaint.
24. Mrs X sought consideration of her complaint at Stage 2. Mrs X said while the Council’s panel had agreed to the provision, the Council had not put this in place. Mrs X said the Council was failing to provide education for her child.
25. In March 2025, the Council considered Y’s EHC Plan provision further at panel and agreed a Personal Budget for much of the outstanding provision.
26. The Council issued a stage two complaint response in March 2025. The Council said the stage one complaint response adequately addressed Mrs X’s complaint and there was no further action it could take. The Council said it would continue to work to put any missing provision in place and directed Mrs X to the Local Government and Social Care Ombudsman.

Analysis

27. The Council was responsible for delivering the EHC Plan provision from Y’s amended Final EHC Plan from 3 October 2024. This was the date the Council produced the amended final plan following the tribunal’s decision in September 2024. The Council produced this plan within five weeks of the tribunal’s decision. I do not find fault.
28. In the Council’s stage one complaint response it advised it takes time to put EHC Plan provision in place. While this may have been the case, the Council must deliver the EHC Plan from the date of production of the plan unless specified otherwise within the plan. Any delay in delivery of a child’s EHC Plan provision is fault.
29. When the Council’s produced Y’s amended Final EHC Plan in October 2024, it had already put in place some provision outlined in paragraph 19; this was for the provisions under d) and e). Y was also accessing the provision under paragraph 19 j) and the Council made the first Personal Budget payment for this shortly after production of the amended final EHC Plan. I do not find fault with the Council for delivery of these EHC plan provisions.
30. Y also had access to the provisions detailed in paragraph 19 b) and c) immediately following production of the amended Final EHC Plan. However, the relationship between the teacher and Mrs X broke down by the end of October 2024. I do not find fault with the Council sourcing this EHC Plan in the first instance. However, the Council took until the middle of March 2025 to arrange replacement provision; this meant Y went nearly five months without this provision in place; this was fault.
31. The Council arranged for the provision detailed in paragraph 19 g) to also started in March 2025, meaning a five-month delay in this provision. However, Mrs X declined this provision because of the distance. While I would expect a short delay for the Council to arrange a different provision option, the Council took until December 2025. This further delay of eight months is fault.
32. Y started to access the provision detailed in paragraph 19 a) from the start of November 2024 with the Council providing the Personal Budget payments for this later in the month. This meant Y went one month without being able to access this provision; this was fault.
33. The Council failed to put in place Y’s EHC Plan provision detailed under paragraph 19 f) until May 2025, a seven-month delay, and 19 h) until October 2025, a year delay. Both of these delays were fault causing Y to miss their provision.
34. Y’s EHC Plan outlined the Council should complete an Occupational Therapist assessment within five weeks of producing the plan; this gave the Council until the middle of November 2024. The Council failed to complete this assessment for a further five months; this delay was fault. The Council then failed to incorporate the Occupational Therapist report into a finalised EHC Plan by the end point of this investigation; this was also fault.
35. The Council’s delays caused Y to miss EHC Plan provision for extended time periods since production of the amended Final EHC Plan in October 2024. This missed provision included access to a suitable and accessible education given Y was intended to receive EOTAS rather than education at a school placement.

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Action

36. Within one month of the Ombudsman’s final decision the Council will:
• Provide an apology to Mrs X for the delays in putting in place her child’s Education, Health and Care Plan provision, including access to a suitable and accessible education. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Provide her with a payment of £3,200 as a symbolic payment for her child’s missed Education, Health and Care Plan provision and missed education.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman