Summary: The Council delayed issuing Mrs X’s son, Mr Y’s Education, Health and Care (EHC) Plan following mediation in May 2024 by 15 months. This led to a delay in putting an agreed Education Other Than At School (EOTAS) in place. The Council agreed to apologise and make a payment to recognise Mr Y’s loss of education during the 2024/25 academic year and the distress and uncertainty caused.

The complaint

1. Mrs X complained on behalf of her adult son, Mr Y.
2. Mrs X complained the Council failed to amend Mr Y’s Education, Health and Care (EHC) Plan following an annual review in March 2024 and put in place provisions by way of an EOTAS (education other than at school) package as agreed.
3. Mrs X said Mr Y was without any educational provision or an up to date EHC Plan for the 2024/25 academic year. She said this impacted on Mr Y’s education and development which caused distress and uncertainty.

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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. 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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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. 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

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the young person’s needs and what arrangements should be made to meet them.
10. 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.

11. 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 young person 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)

Annual Reviews

12. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Where the council proposes to amend an EHC Plan following a review, 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.

SEND tribunal and Mediation

13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs.
14. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan; and
• decision not to amend an EHC Plan following a review or reassessment.

15. Mediation is an informal way of trying to settle disputes about EHC Plan decisions such as decisions to amend or not to amend the Plan. If the Council agree to make changes to EHC Plans following mediation then it must issue the amended EHC Plan within five weeks of the mediation agreement.

EOTAS (Education Other Than At School)

16. 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.
17. 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.

What happened

18. Mrs X has an adult son, Mr Y who turned 18 in 2023. Mr Y has special educational needs (SEN) and disabilities including a diagnosis of autism. Mr Y has an EHC Plan which in 2024 named a mainstream college as his educational placement. The Plan in place at the time was issued in January 2022 and outlined the provision Mr Y would receive for post-16 education at the college.
19. The College held an annual review of Mr Y’s EHC Plan in March 2024. Records of the review show Mrs X requested an EOTAS package for Mr Y because the college had no appropriate courses, something which the college agreed. Mrs X wanted the package to provide Mr X computing qualifications and life skills.
20. The college sent the paperwork to the Council who told Mrs X it intended not to make any changes to Mr Y’s EHC Plan and to continue naming the college in section I. Mrs X disagreed and requested a mediation meeting.
21. A mediation meeting was due to take place at the end of May 2024 however, Mrs X said the Council agreed to amend Mr Y’s EHC Plan to include the EOTAS package prior to the meeting taking place. As such, Mrs X cancelled the mediation meeting. Council records of a telephone call with Mrs X show an officer told her she must wait for an amendment notice and then for the amended Plan. Mrs X wanted the Plan in place by September for the 2024/25 academic year. In line with timescales the Council should have issued Mr Y’s amended EHC Plan by the start of July 2024.
22. The Council issued an amendment notice in August 2024 which explained its intention to amend Mr Y’s EHC Plan.
23. Records show Mr Y’s case officer contacted Mrs X in December 2024 to discuss the EOTAS package but nothing was in place and Mr Y remained without an educational placement or any provision.
24. Mrs X complained to the Council in March 2025 about the delays in putting the EOTAS package in place and issuing an amended EHC Plan since the mediation agreement in May 2024. Mrs X said she had submitted proposals but had no further communication from the case officer. She said Mr Y was struggling, isolated and needed support in place.
25. The Council responded to Mrs X’s complaint. The Council accepted there was currently no provision in place for Mr Y for which it apologised. It said its communication was not consistent or timely. The Council said it would allocate an officer to develop Mr Y’s EOTAS package as soon as possible. Unhappy with the response Mrs X escalated her complaint.
26. Records show Mrs X spoke with a case officer during April 2025. These show an EOTAS package had now been agreed however she asked the Council to wait until September 2025 for it to be implemented. Mrs X said Mr Y was currently on a 12 week course and he wanted to complete this before starting back into education.
27. The Council issued a stage two complaint response in early May 2025. It acknowledged Mr Y had started a course but that it would work to amend the EHC Plan to show the EOTAS package. It confirmed EOTAS was agreed for the 2025/26 academic year. The Council offered Mrs X a total of £2000 to recognise Mr Y’s loss of education for two terms and for the time and trouble caused.
28. Mrs X chased the Council about Mr Y’s EHC Plan again at the end of May and was unhappy about the Council’s remedy offer which she believed was not sufficient.
29. Mrs X remained unhappy and complained to us.
30. Since complaining to us Mr Y’s EOTAS package began in September 2025. The Council issued Mr Y’s amended EHC Plan in October 2025 to reflect the EOTAS package.
31. Mrs X said no further annual review has been carried out since March 2024 and raised some concerns about not receiving some of the funding not being in place which meant she was covering the shortfall.

My findings

32. Following the March 2024 annual review the Council decided not to amend Mr Y’s EHC Plan. This decision came with a right of appeal and Mrs X asked for a mediation meeting. The Council agreed to amend Mr Y’s EHC Plan and as such should have issued the amended Plan within five weeks of the agreement. It did not issue an amendment notice until August 2024 and ultimately did not issue the final amended EHC Plan until October 2025. That is a significant delay of over 15 months and fault.
33. The records show the Council did agree to put an EOTAS package in place for Mr Y following the mediation meeting. It did not agree the package until April 2025 and it did not begin until September 2025. On balance, had the Council met statutory timescales Mr Y would have had an amended EHC Plan and an EOTAS package in place to begin in September 2024 for the 2024/25 academic year. The delay arranging the EOTAS package was fault. Mr Y was engaged on a course from April 2025 leading Mrs X to ask for a delay in starting the EOTAS package, however Mrs X only commissioned that course because of the ongoing delays and lack of educational placement for Mr Y. The delay meant Mr Y had no education in place for two terms and contributed to a further delay, albeit Mrs X’s choice until September 2025. This impacted on Mr Y’s wellbeing and development and caused Mrs X distress and uncertainty.
34. As outlined above Mr Y’s last annual review took place in March 2024. This means, regardless of the other delays another review should have taken place by March 2025. To date, no further annual review has taken place. That is fault.
35. Mrs X has raised concerns about how the Council has implemented Mr Y’s EOTAS package since September 2025. The Council has not yet had the opportunity to investigate these concerns. So, Mrs X should complain to the Council first about events from September 2025 onwards and then it is open for her to return to us if she remains dissatisfied with the Council’s response.
36. The Council currently has an ongoing SEND improvement plan in place and we have also made various recent service improvement recommendations to the Council following the conclusion of other Ombudsman investigations. These include
• A review of gaps involving post-16 people with EOTAS packages.
• Taking action to reduce delays in EHC Plan processes
• Dealing with staffing issues to improve service.

Given the above I have not made further service improvement recommendations as we are monitoring compliance of the above through our casework. I have however asked for an update which is outlined below.

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Action

37. Within one month of the final decision the Council agreed to take the following action.
1. Apologise to Mrs X and Mr Y and pay them a combined total of £3500 to recognise Mr Y’s loss of education and provision during the academic year and the distress and uncertainty caused to both by the faults outlined above. 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. Arrange and hold Mr Y’s annual review.
3. Provide an update around its recruitment of SEND staff and explain what action it is taking currently to reduce delays in Education, Health and Care Plan annual review process.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. 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