Summary: Mrs K complains the Council delayed acting after a Tribunal order. It did not provide her daughter with the contents of her Education, Health and Care Plan and did not provide alternative provision when she could not attend school. The Council has still not met all of the Education Otherwise Than At School provision for her daughter. We uphold the complaint. The Council delayed reviewing the Education, Health and Care Plan, putting educational provision in place, paying invoices and making remedies. This led to avoidable distress for Mrs K and her daughter missing provision. The Council has agreed to our recommendations for remedies and a service improvement.

The complaint

1. My summary of Mrs K’s complaint is the Council:
• failed to arrange an Education Otherwise Than At School (EOTAS) package for her daughter (X) within five weeks of a Special Educational Needs and Disability (SEND)Tribunal Consent Order;
• did not fulfil its duties to provide X with the contents of her Education, Health and Care (EHC) Plan;
• did not fulfil its duties to provide X with alternative provision after she stopped attending school;
• delayed making a payment for items covered by a personal budget and did not put in place a budget for ongoing provision;
• delayed refunding payments Mrs K and her husband (Mr K) had funded because of the Council’s delays;
• continue to not be able to find any provider for physical education (PE), leading them to the time and trouble of themselves finding providers;
• has not given them continuity in case officers; something that is particularly important for parents of children who are EOTAS, as they do not have the support network of, for example, a school’s special educational needs co-ordinator (SENCO);
• delayed implementing remedies it agreed in its complaint response.
2. Mrs K would like the Council to fully implement the provisions in X’s EHC Plan, make the remedies agreed in its complaint response and advise how it will address any missed provision from January 2025 and support X in catching up.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)
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. We would normally end our investigation at the date of the complaint to the Ombudsman. But, after Mrs K’s complaint to the Ombudsman, while she was awaiting us to allocate her complaint for investigation, she made a new complaint to the Council about ongoing issues. Insofar as the issues in Mrs K’s new complaint overlap with her complaint to the Ombudsman we have agreed with Mrs K and the Council that we will combine the two complaints into this one investigation.

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How I considered this complaint

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

11. A child or young person with special educational needs may have an 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. 
12. 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)
13. Once a Tribunal issues a decision, the council must carry out the Tribunal’s order within a fixed period. The time limit tor making or changing an EHC Plan is five weeks.

Personal Budgets

14. 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.

Section 19 duty

15. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.

What happened

Background

16. X has an autism spectrum condition (ASC), which became more noticeable in her later years in primary school. By the end of primary school, she was finding it difficult to participate in school life. The primary school had introduced support from an online mentoring/counselling service (Organisation 1).
17. In April 2024, Mrs K had appealed a Council decision to not amend X’s EHC Plan, before her move to secondary school. From September X was added to the role of a mainstream secondary school. That school continued the sessions X had been attending with Organisation 1. It also agreed to fund some tennis coaching Mr and Mrs K had previously been funding.
18. In November Mrs K met with an officer from the Council about the appeal. They made some amendments to a working document about proposals for X’s EHC Plan. The agreed working document detailed the following weekly provision (with outcomes and costs):
• sessions with Organisation 1 to continue;
• an alternative provision group session, for socialisation, support and skills activities (provided by Organisation 2);
• PE sessions with an organisation offering sporting opportunities (Organisation 3);
• sessions with a therapeutic learning service. The working documents named an example provider (Organisation 4);
• subscriptions, including to a home delivered learning resource provided by a named provider (Organisation 5);
• a personal budget for some subscriptions and items like stationery; and
• a laptop, so X could access online learning.
19. In early November, at a Tribunal hearing, the Council conceded that a mainstream school could not meet X’s needs. So the Tribunal issued a Consent Order, which ordered the Council to amend X’s EHC Plan to:
• reflect X’s needs and provision in line with that agreed in the working document;
• delete the section that detailed that X would attend a school.
20. After the Tribunal hearing Mrs K withdrew X from school, due to the distress attending was causing X. She continued to attend Organisation 1’s sessions and the tennis coaching. Mrs K says she expected the Council to get some of the provision set out in the working document arranged from, at the latest, January 2025.
21. The Council missed the deadline for complying with the Tribunal’s Order which was in mid-December 2024.
22. When the Council did not start any provision, Mrs K contacted Organisation 2 herself and arranged for X to start sessions. The family funded this provision, in the absence of progress from the Council.
23. The school had continued to provide X with access to the sessions from Organisation 1 and the tennis coaching. But, in early-February, it advised Mrs K it was contacting the Council to say it was taking X off its role, due to the changes the Tribunal had ordered. From then Mr and Mrs K funded the tennis coaching themselves. Sessions with Organisation 1 continued.
24. Mrs K complained to the Council about its inaction. Its response apologised for the delays in organising X’s final EHC Plan. It said it would:

• ask its SEND Service to consider a symbolic financial remedy to Mrs K to acknowledge the frustration and uncertainty caused by the delays following the Tribunal;
• repay Mrs K the costs she had incurred since X stopped attending school;
• share with her (by the end of March) its revised EHC Plan;

25. At the end of March, the Council shared with Mrs K a draft EHC Plan. It made Mrs X a payment of £200 as a remedy for her frustration and uncertainty (see paragraph 24).
26. In June Mrs K complained to the Ombudsman that the Council had still not put X’s EOTAS in place and it was unclear when the Council would issue its amended final EHC Plan.
27. The Council issued a final amended EHC Plan in early September. Its officer’s covering email with the Plan advised Mrs K:
• it had contacted its laptop supplier and was awaiting a quote;
• it had organised payment to Organisation 5. So X should shortly start receiving the home learning resources;
• its Finance Team was preparing to pay her invoices for costs the family had incurred (including for Organisation 2);
• it was considering Mrs K’s request that it reimburse her for tennis lessons;

• it was still awaiting a response from Organisation 4;
• It had made a referral to Organisation 3, who were going to make a formal offer to Mrs K.

28. Mrs K says the home learning resources from Organisation 5 began at the start of the 2025 autumn term;
29. The Council provided X with a laptop at the end of December 2025.
30. Mrs K instructed a solicitor. The Council’s response advised it accepted it had missed a referral to a provider for X’s PE support.
31. At the beginning of January 2026 tuition provided by Organisation 4 started.
32. Mrs K made a further complaint to the Council, due to ongoing delays. The Council’s response noted:
1. Organisation 4 had first contacted Mrs K in mid-November to organise a meeting. But there was then a delay due to Mrs K’s availability. But it accepted there was delay in the period before this;
2. it had made a referral to Organisation 3 in September 2025. But it had not received a further response from it. So it had made a new referral to another sporting provider (Organisation 6), as an alternative to Organisation 3. The Council acknowledged its significant delay in implementing suitable provision for PE;
3. it upheld Mrs K’s complaint about the delay in providing a laptop;
4. it acknowledged further delays, from April 2025, until the Autumn Term of 2025, with:

• putting a personal budget in place;
• paying invoices for Organisation 2’s provision;
• paying for X’s tennis coaching. The Council had agreed to pay the total costs. It apologised for the delays.

33. Mrs K complained to the Ombudsman. In response to my enquiries and draft decision, the Council advised that:
• it had by then reimbursed Mrs K the cost of tennis lessons;
• it was in the process of making a referral to Organisation 6. It had not arranged any other PE provision;
• it gave a name of a manager which it said had been Mrs K’s point of contact. And that would remain the case until it could allocate X’s case to a case officer;
• it had restructured its service. And since the restructure, it was improving the timeliness and quality of its EHC Plan annual reviews. It said it was also improving communication systems, so it logged, monitored and responded to telephone calls, emails, and requests from families “within expected timescales”.
34. Mrs K says since the Council’s response to my enquires, the Council had advised her that her contact had changed again (see paragraph 33). For the reasons set out in her complaint, this was especially disruptive for her.

Was there fault by the Council?

Delay issuing a revised EHC Plan following the Tribunal Consent Order

35. The Council delayed around three and a half months in issuing a draft revised EHC Plan, following the Tribunal’s Order and around a further five months to issue the final Plan. That delay was fault.
36. The Council also delayed putting in place provision outlined in the working document, which was the basis of the Tribunal’s Consent Order:
• Mrs K organised provision from Organisation 2 to start, due to the Council’s delay;
• around a year for the provision from Organisation 4;
• at the time of writing, the Council has not put in place any PE provision – a delay of over 14 months and continuing;
• around nine months for the provision from Organisation 5;
• around 11 months to provide a laptop;
• reimbursing payments made because of delays in setting up a personal budget was delayed by several months. Mrs K reports ongoing problems.

Alternative provision

37. If the Council had implemented the Tribunal’s Order without fault, then the question of alternative provision would not have arisen. As such, the fault is in the delay in following the Tribunal’s Order, rather than in not providing alternative provision.

Delays in refunding invoices

38. The Council has accepted delays which was fault. It has now refunded the payments Mrs K made.

Did the fault cause an injustice?

39. X has missed significant sections of the provision agreed by the Tribunal’s Consent Order. Some provision remains unresolved while the Council delayed other parts for between approximately two and three terms.
40. Mrs K was also put to considerable avoidable anxiety, frustration and upset by the amount of actions she had to take on behalf of X to put provision in place. This was especially so after the school stopped its involvement. She had no support from any professionals (school staff for example) and experienced inconsistency in the support available from the Council’s case officers.
41. Mrs K asks the Council to advise how it will make up for the missed provision. Below I make some recommendations for symbolic payments which Mrs K can use as she sees fit for X’s educational benefit. Beyond that, the correct place for the Council to address any “catch-up” is within the EHC Plan review process. If X’s special educational needs have been disadvantaged by the delays, we would expect later EHC Plan provision to reflect X’s needs at that stage. This is because the assessment process takes account of the latest evidence relating to the child’s present circumstances. So it should take account of any need for extra provision. And if it does not, then the Plan is appealable.

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Agreed action

42. Within one month of my final decision, I recommended the Council take the following actions.
• Apologise. 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.
• For the missed educational provision to X of around three terms, make a symbolic payment of £5000. In arriving at this amount I have taken account of the fact X’s education provision was via EOTAS. So the missed provision was especially acute, as none other was available. I have used a higher tariff for two terms, and a lower amount for the third, as some extra provision had started by the third term.
• For the ongoing issue of the missing PE provision, make Mrs K an extra payment of £225 for each month that X’s PE provision remains outstanding, up to a maximum of six months. The start date for this payment is a month from the date of this statement.
• For Mrs K’s avoidable distress, make her a payment of £300 (in addition to the £200 already made).
43. The complaint has highlighted particular problems for Mrs K, due to the particular challenges of children receiving EOTAS. So I recommend that, within three months of my decision a Council officer (at a sufficiently senior level to make recommendations) reviews what happened in this complaint. They should focus on whether there are any lessons to be learned about supporting the parents of children receiving EOTAS. Questions this review might consider include:
• how is the Council ensuring timely assessment and delivery of EOTAS as specified in EHC Plans;
• what mechanisms are in place to review and address delays or failures of provision;
• does the Council have a clear process for commissioning educational providers to ensure there are no delays in making arrangements for children with EOTAS;
• could the Council identify members of staff who monitor and oversee the most complex EOTAS packages;
• does the Council have comprehensive information on the SEND Local Offer about EOTAS?
44. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.

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Decision

45. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman