Summary: Mrs X complained the Council failed to secure the special educational provision in her child, Y’s, Education, Health and Care Plan following an appeal to the First-tier Tribunal (Special Educational Needs and Disability). She also complained it failed to provide Y with a suitable education when they could not attend school. We found fault by the Council for not securing a suitable education or support for Y when they could not attend school. The Council has agreed to apologise and make a payment to recognise the injustice caused to Mrs X and Y. It also agreed to make changes to its service to prevent the same faults from happening to others.

The complaint

1. Mrs X complained the Council failed to meet the legal deadline to issue a final Education, Health and Care (EHC) Plan for Y which meant they did not receive the support they should have. She also complained the Council didn’t provide Y with a suitable education when they did not have a school place. She said the Council’s actions have caused distress, loss of education and financial issues for Y and their family.

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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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
4. 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.
5. 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)
6. 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

7. I have investigated the Council’s actions to secure education and support for Y after the First-tier Tribunal (Special Educational Needs and Disability) issued an order in February 2025. I have investigated the Council’s actions up until June 2025, which was when Mrs X complained to us.
8. I have considered if these actions caused Mrs X and Y an injustice until the start of September 2025. I have not considered any ongoing injustice caused to Mrs X or Y after September 2025, because Y had a new school place from this date. Therefore, any issues that occurred after September 2025 could have been caused by different matters.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
11. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did.
12. Therefore, I have investigated general themes and issues, rather than providing a response to every individual issue raised in Mrs X’s complaint.

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What I found

Law and guidance

Special educational provision

13. A child or young person with Special Educational Needs (SEN) 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.
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 (Children and Families Act 2014, section 42).
15. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs and EHC Plans. We refer to it as the Tribunal in this decision statement.
16. Parents and young people can appeal the contents of an EHC Plan to the Tribunal. Where a council has been ordered by the Tribunal to amend the special educational provision specified in the EHC plan, the council must issue the amended EHC plan within five weeks of the order being made. (Regulation 44 of the Special Educational Needs and Disability Regulations 2014)
17. Case law has established councils have a legal duty to secure the special educational provision in an EHC Plan by the time the amended final EHC Plan is issued following an appeal to the Tribunal. (BA, R (on the application of) v Nottinghamshire County Council [2021] EWHC 1348 (Admin))

Alternative education provision

18. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. This applies to all children of compulsory school age living in the council’s area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’, January 2013)
20. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Supporting children out of school (October 2025)

Education Otherwise Than At School

21. If school or college is not appropriate for the child or young person with an EHC Plan (for either all or part of their education), the council can arrange for any special educational provision which the child or young person requires to be delivered somewhere other than in a school, college or early years setting. This is known as ‘education otherwise than at school’ (EOTAS). (Children and Families Act 2014, section 61)
22. EOTAS is not the same as alternative education provision arranged under a council’s section 19 duty.

What happened

23. Mrs X appealed the contents and school named in Y’s EHC Plan to the Tribunal. The Tribunal hearing was in January 2025. At the time, Y had a mainstream school named in their EHC Plan.
24. In February 2025 the Tribunal issued an order telling the Council to amend Y’s EHC Plan. It decided Y should attend a special school, but it could not name a specific special school. Therefore, it ordered the Council to write ‘special school’ in Y’s EHC Plan until the Council could find a specific special school to name.
25. In February 2025, Y’s school removed them from its roll. The Council then put Y on an interim EOTAS package until it could find them a new school place.
26. In March 2025 the Council amended Y’s EHC Plan, as ordered by the Tribunal. We asked the Council to send us evidence it sent the amended EHC Plan to Mrs X, but it could not find any evidence it did this.
27. The Tribunal ordered that section F of Y’s EHC Plan would say they needed a laptop, Occupational Therapy (OT) support, and other support.
28. At the end of March 2025 Mrs X complained to the Council. She said the Council had failed to provide Y with the support they were legally entitled to. The Council apologised and said it was contacting support providers and working to get support in place.
29. In April 2025 Mrs X complained to the Council again. She said Y still wasn’t getting the support as ordered by the Tribunal.
30. Later in April 2025 the Council replied to Mrs X. It said it had put online mentoring in place for Y, and it would send her details of a laptop and send her money to buy this. It said if she wanted a different laptop, she could buy a more expensive one, but the Council would only reimburse her up to the value of the laptop it approved.
31. The Council explained it had contacted several OT providers to support Y. It said it needed to find a service which could support Y and hoped this would happen soon.
32. In June Mrs X complained to us about the Council’s actions.

Analysis

Sending the amended EHC Plan after the Tribunal appeal

33. The Council amended Y’s EHC Plan within the statutory five-week deadline and so there was no fault by the Council on this point.
34. However, Mrs X told us the Council did not send her an amended final EHC Plan after the Tribunal hearing. We asked the Council to provide evidence it sent the amended EHC Plan to Mrs X and it could not find any evidence of this.
35. Therefore, on balance, it is likely the Council did not send Mrs X a copy of the amended final EHC Plan, which is fault.
36. This caused Mrs X frustration and uncertainty. However, this injustice was limited because she already knew what would be in the EHC Plan, as she had a copy of the Tribunal order. The Tribunal order set out exactly what should be in the EHC Plan.
37. The Council told us it has changed its communication processes to prevent similar fault from occurring in the future and it has also agreed to make further changes to improve its service to prevent the same fault happening again.

Special educational provision

38. The Council told us that despite its best efforts, it accepts it did not manage to secure the special educational provision in Y’s EHC Plan.
39. The Council’s records show it did not start trying to secure special educational provision for Y until April 2025. However, the Tribunal issued an order to amend the EHC Plan in February 2025, with a five-week deadline for the Council to comply. Case law has found the five-week deadline allows councils to start securing the bulk of the special educational provision in the EHC Plan, so that it can be in place by the time the amended final EHC Plan is issued.
40. Therefore, it was fault by the Council to not start trying to secure the provision until April 2025. It should have started trying to secure provision in February 2025, so it could be in place by March 2025. The Council has agreed to make changes to its service to prevent these faults happening again.
41. Once the Council did start trying to secure provision in April 2025, it struggled to secure the provision for reasons out of its control.

Occupational Therapy

42. The Council contacted OT providers but struggled to find one that could provide the right OT support for Y. Section F of Y’s EHC Plan listed a specific OT support. The Council could not use the NHS service it normally works with to provide this support.
43. Once the Council found a suitable OT provider, they could not start until July 2025.
44. Therefore, the failure to secure OT support for Y after April 2025 was likely not caused by the Council’s actions, but there was still an injustice to Y as a result of this.

Laptop

45. The Council also told Mrs X in April 2025 that it would pay for a £300 laptop. Mrs X said the online tuition provider told her the laptop offered by the Council would not be high enough quality for Y to access their online learning platform. She asked the Council to buy a £600 laptop instead. The Council said it would not buy the more expensive laptop, but if Mrs X wanted this laptop, it would still reimburse her for the cost of the original laptop and Mrs X could pay the difference. Mrs X did not buy the laptop until July 2025.
46. Section F of Y’s EHC Plan did not refer to a specific type of laptop. It said Y needed a laptop to learn to touch-type and to access online learning platforms (although it did not specify what online learning platforms). On balance, the Council’s offer of a £300 laptop was therefore suitable to meet the requirements in Y’s EHC Plan.
47. Therefore, although Y did not have a laptop until July 2025, the Council was only at fault for this until April 2025.
48. Not having a laptop caused an injustice to Y because they did not have special educational provision they were entitled to, such as opportunities to learn touch-typing and access to online learning platforms.
49. The Council told us it has reviewed the learning from this complaint and now offers other ways of providing learning technology, such as buying it for families instead of asking them to buy it. These steps appear appropriate to address the fault in this complaint and prevent it happening again and therefore I have not made any further service improvement recommendations on this point.

Alternative education provision

50. The Tribunal’s order in February 2025 said that Y would attend a special school, but it did not name a specific school. Therefore, the Council knew in February 2025 that Y would not have a named school place after March 2025.
51. The Council told us it put Y on an interim EOTAS package until it could find them a school place. It said because it treated Y’s case as an EOTAS case, it did not consider it to be a section 19 case and so it did not go through the normal section 19 processes.
52. In Y’s case, the Council decided they would get six hours of tutoring, two hours of mentoring, two hours of OT support and a one-hour welfare visit every week.
53. The Council told us it offered tuition between March 2025 and July 2025, but Mrs X refused the offers, which made it difficult to find a tutor to work with Y. Therefore, Y did not get their six hours of weekly tuition. The Council has not sent us evidence it sent offers of tuition to Mrs X, or that she declined any offers during this time.
54. Mrs X told us the Council did not offer any tuition and so she paid for tuition for two hours a week for Y.
55. On balance, it is more likely the Council did not offer six hours a week of tuition between March 2025 and July 2025. Therefore, this was fault by the Council as it had decided six hours per week was suitable for Y.
56. This fault caused injustice to Y because they missed suitable education while they could not attend school.
57. The Council told us it recognised there was fault in how it handled Y’s case. It said it has made improvements to its service to prevent the same fault happening again, such as creating new section 19 processes and job roles to evaluate individual cases of children out of school and make sure the Council is meeting its legal duties in these cases.
58. Additionally, in response to previous investigations by us, the Council has sent us evidence of changes it has made to its section 19 process. Therefore, I have not made any further recommendations on how the Council could improve its services on this part of the complaint, but we will monitor the effectiveness of the Council’s actions through our casework.

Remedies

59. Our guidance on remedies explains that where we find a council’s fault caused a child to miss a suitable education, we may consider reimbursing the parent’s costs for education materials or tuition, if we decide those costs were reasonable and as a result of the council’s fault.
60. When deciding if a parent’s cost were reasonable, we take different factors into consideration. For example, where the council offered to secure alternative provision, but the parent declined, we may say the parent’s costs were not reasonable for this period as they could have accepted the council’s offer instead of paying for provision themselves.
61. Because it is unlikely, on balance, the Council offered tuition for six hours per week between March 2025 and July 2025, Mrs X’s costs of two hours per week tuition during this time were reasonable.
62. Additionally, our guidance on remedies explains that where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. A symbolic payment for loss of education and provision is separate from a reimbursement of a parent’s costs.
63. In Y’s case, £1,200 for one term is appropriate to remedy any loss of education and special educational provision between March 2025 and September 2025. This considers relevant factors such as:

• Mrs X paid for tuition which meant Y received some educational provision which reduced the injustice to Y;
• the Council offered to pay for a laptop in April 2025, but Mrs X delayed buying the laptop;
• the Easter and Summer holidays where Y would not have normally attended school anyway; and,
• the Council managed to secure some of Y’s special educational provision during this time.

Service improvement

64. Where we find fault by an organisation, we can recommend changes to improve how the organisation delivers its services to prevent the same issue happening to others.
65. There was fault by the Council in failing to send an amended EHC Plan to Mrs X after the Tribunal appeal, and fault in its actions to secure the special educational provision for Y after the appeal. The Council has agreed to our recommendations to make changes to its service to prevent similar faults from happening to others on these matters.

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Action

66. Within one month of our final decision, the Council will:
1. apologise to Mrs X and Y for the injustice caused to them by the failings identified during this investigation. This apology should be in accordance with our guidance for making an effective apology;
2. pay Mrs X £1,200, on behalf of Y, to recognise the injustice caused to them by the Council failing to secure suitable education and support for Y when they could not attend school; and,
3. reimburse Mrs X for the cost of Y’s two-hour weekly tuition between March 2025 and July 2025, if she can show it reasonable evidence of costs such as dated receipts or invoices.
67. Within three months of our final decision, the Council will:
1. review its process for sending out amended EHC Plans to make sure these are always sent to parents and young people when they are finalised, with a covering decision letter. It will identify any improvements it can make to this process to prevent the fault from this complaint happening again. It will send us the outcome of its review and, if applicable, send us a timebound plan of when it will make any changes; and,
2. through email or a staff briefing, it will remind relevant Council staff of the legal duty to ensure the bulk of a child or young person’s special educational provision in their EHC Plan should be in place within five weeks of a Tribunal’s order to amend the EHC Plan. In particular, it will remind staff this means the Council should not wait until after the final amended EHC Plan is issued to start the process of securing special educational provision.
68. The Council should provide us with evidence it has complied with the above actions.

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Decision

69. 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