Summary: Mrs X complained the Council failed to provide the provision in section F of her child, Miss Y’s Education Health and Care (EHC) Plan. She also complained the Council had failed to properly consider Miss Y’s voice in its decision making around recruitment of a new educational practitioner. We found the Council at fault for failing to provide the provision in Miss Y’s EHC Plan between April and October 2025 causing a loss of educational provision. The Council also delayed and poorly communicated its decisions causing further frustration and uncertainty to Mrs X and Miss Y. The Council agreed to apologise and make a symbolic payment to Mrs X and Miss Y to remedy the injustice caused. It will also carry out service improvements to prevent reoccurrence of the fault.

The complaint

1. Mrs X complained the Council have failed to deliver the provision set out in their child, Miss Y’s EHC Plan.
2. She says the Council have not properly considered Miss Y’s voice in its decision making including the changing of the recruitment process for their support worker.
3. Mrs X wants Miss Y’s education to be extended to acknowledge the loss of provision its delays have caused.

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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 have and have not investigated

9. I have considered Mrs X’s complaint from February 2025 when Miss Y’s educational practitioner gave their employment notice to October 2025 when interim support was provided.
10. I have not considered matters after October 2025. Disagreement about the suitability of the interim support would be the subject of a new complaint to the Council in the first instance.

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What I found

Relevant law and guidance

EHC Plans

11. 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.
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)

Education Other than in School or College (EOTAS)

13. A council may arrange for any special educational provision that it has decided is necessary for a child or young for whom it is responsible to be made otherwise than in a school of college. A council can only do so if it is satisfied that it would be inappropriate for the provision to be made in a school or college. (Children’s and Families Act 2014, section 61)

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.

What happened

15. Miss Y is a young adult with SEN and an Education Health and Care (EHC) Plan. Their education being delivered by an Education Other Than at School (College) package (EOTAS) and personal budget managed by the Council.
16. Section F of Miss Y’s EHC Plan requires them to be supported during all learning sessions, up to 16 hours a week, on a 1:1 basis. Delivery of the sessions is over 52 weeks dependent on Y’s ability to engage, provided by one or two suitably qualified and informed educational practitioner(s). Miss Y’s assigned educational practitioner gave notice in February 2025 to leave their post.
17. In March 2025 the Council informed Mrs X it was proposing to commission provider A to provide a new educational practitioner for Miss Y.
18. At the end of March 2025, Mrs X requested an update from the Council. She said she understood the Council had the right to recruit as it deemed appropriate, however it had a duty to provide Miss Y with the provision in their EHC Plan. Further, Miss Y’s educational practitioner was due to leave post at the end of April 2025 and there was no planned transition period.
19. The Council told Mrs X that it would clarify the handover process and arrange for Ms Y’s EHC Plan co-ordinator to hold an early annual review. It invited Mrs X and Miss Y to meet with a new education practitioner from provider A.
20. In April Mrs X complained to the Council, she said an early annual review was not required, the agreed recruitment for Miss Y had not been followed including the commissioning of provider A and there was a lack of transition planning for a new educational practitioner for Miss Y.
21. In its response the Council said:
• it had a clear recruitment process, and it was not possible to recruit a new educational practitioner before the previous post holder left, however the process should have been made clearer to Mrs X and Miss Y;
• it was aware of its statutory responsibility to continue to deliver the provision in section F of Y’s EHC Plan. Mrs X had been told about the possible commissioning of provider A at the end of March 2025, however there had been a delay in communicating this decision;
• the decision to possibly commission provider A had been made to reduce the time Miss Y would be without provision and it had already been supporting alongside Miss Y’s educational practitioner. Provider A did not need to go through the normal recruitment process and pre-existing commissioned arrangements with it gave assurance around safer recruitment, safeguarding practices and SEND experience;
• where transition is possible the Council will adhere to this, it had not been possible in Ms Y’s case; and
• it apologised for any inconvenience the process had caused Miss Y and Mrs X and had provided feedback to staff about clear communication when there is to be changes in provision. It had considered Mrs X’s preferred recruitment process, however it had contacted Mrs X regarding the potential commissioning of provider A and had invited her to be part of the process.
22. At the end of April 2025, in communication with Mrs X the Council said:
• two possible practitioners had been identified, and it had asked provider A to share their details with Mrs X;
• should she wish to make a personal selection of practitioner, a direct payment to facilitate this could be considered;
• she was invited to a meeting with provider A and the Council to establish a co-produced transition plan for Miss Y;
• an early annual review was appropriate to update and establish a consistent and appropriate communication method with Miss Y.
23. At the beginning of May 2025, Mrs X escalated her complaint.
24. The Council’s response at the beginning of June 2025 said:
• it had failed to communicate with or gain Miss Y’s views regarding the change in recruitment strategy or involve Mrs X in its stage one investigation;
• it recognised, despite a collective agreement, that parts of Miss Y’s EHC Plan needing updating, an early review would add to uncertainty around section F provision and cause additional distress to Miss Y;
• the views of Mrs X, Miss Y and her professional support network had not been sought in relation to a handover process of a new support worker: and
• Mrs X and Miss Y’s support network had understood a recruitment process had been agreed in March 2025. Whilst their high level of involvement was unusual, this, along with poor communication around the commissioning of provider A had caused frustration and uncertainty.
25. The Council said:
• an apology would be issued to Miss Y;
• recruitment would continue as agreed with a meeting between interested parties in May 2025;
• an annual review would be completed within normal timescales;
• communication with Miss Y would be through their advocate only: and
• it would consider its new recruitment practices in relation to transition and handover processes.
26. Mrs X remained dissatisfied with the Councils actions and responses and asked the us to investigate.

The Council’s response to us

27. It said it had decided to commission an educational practitioner for Miss Y through provider A after considering evidence provided by Miss Y’s educational consultant and previous educational practitioner. It said it had concluded provider A would better support the long-term development of Miss Y and could meet the provision within Miss Y’s EHC Plan.
28. Two potential educational practitioners had been proposed in April 2025 which were unsuccessful. A further three rounds of interviews via provider A were completed between June 2025 and September 2025, which included significant involvement from Mrs X and Miss Y’s support network. Recruitment had remained unsuccessful.
29. Provider A remained commissioned by the Council. From October 2025 it had employed Miss Y’s advocate, on an interim basis, to provide support towards Miss Y’s EHC Plan outcomes. It was continuing to engage with Miss Y, Mrs X and their support network to provide an accepted educational practitioner.

Findings

30. The educational provision in section F of Miss Y’s EHC Plan, relied on an educational practitioner to deliver it. The Council failed to secure continuation of this provision when their educational support worker left post at the end of April 2025. The Council’s failure to secure delivery of education and section F provision to Miss Y was fault and meant Y did not receive any education and special educational provision to which they were entitled to between April 2025 and October 2025 (when interim provision was provided to Miss Y).
31. The Council recognised it had poorly communicated with Miss Y, Mrs X and Miss Y’s support network in its decision to commission provider A, however the evidence shows the Council included Mrs X, Miss Y and Miss Y’s support network after its stage one complaint response in April 2025 in any decisions around recruitment of a new educational practitioner.
32. The evidence shows the Council does not have procedures in place to ensure continuity of tutors and practitioners for 1:1 support when posts become vacant. In Miss Y’s case, this caused significant delay and drift in the recruitment of a replacement educational practitioner. This is fault caused distress, frustration and uncertainty to Mrs X and Miss Y.
33. Further, a lack of clear, definitive communication and decision making by the Council about the change in recruitment strategy and the suitability of the educational practitioners caused additional frustration and uncertainty to Mrs X and Miss Y.

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Action

34. To remedy the injustice caused, within one month of the final decision the Council will take the following action:

1. Apologise to Mrs X and Miss Y for the faults identified during this investigation. 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. Make a symbolic payment of £4,500, to recognise Miss Y’s loss of educational provision from April 2025 to October 2025 and the distress, frustration and uncertainty this caused Mrs X and Miss Y.
3. Produce an action plan to identify the steps the Council will take to commission and recruit an educational practitioner, to deliver the provision as directed in section F of Miss Y’s EHC Plan.

35. Within three months of the final decision the Council will take the following action:

4. through training or briefing remind relevant staff of the Councils duty to provide the provision as outlined in section F of a child or young person’s EHC Plan;
5. review its commissioning arrangements and recruitment practices for the provision of 1:1 tutors/practitioners for children and young people with EHC Plans and EOTAS packages. The review should make sure the Council has sufficient capacity and practices in place to prevent gaps in a child’s provision where tutors/practitioners leave their post.

36. The Council will provide us with evidence it has complied with the above actions.

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Decision

37. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman