Summary: The Council failed to provide Mrs X’s child Y with an education or the provision outlined in their Education, Health and Care (EHC) Plan package for two academic years between September 2024 and July 2026. The Council agreed to apologise and make a payment to acknowledge the impact this had on Y’s education and the injustice caused to Mrs X. It also agreed to take action to prevent similar faults in the future.

The complaint

1. Mrs X complained the Council failed to ensure her child, Y received an education or the provision outlined in their Education, Health and Care (EHC) Plan since May 2024. Mrs X said the SEND tribunal ordered the Council to put an EOTAS (Education Other than at School) package in place but it delayed doing so for five school terms.
2. Mrs X said the matter has had a significant impact on Y’s education and social development which has caused distress and uncertainty.

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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. 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)
5. 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

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

8. 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.
9. 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)

SEND tribunal

10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs.

EOTAS (Education other than at School)

11. 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.
12. The Council has the same legal duty as outlined in paragraph 9 to ensure the child or young person receives all of the provision outlined in Section F of the EHC Plan.

Reviewing EHC Plans

13. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews.
14. Where the council proposes to amend an EHC Plan, 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.
15. The council must review and amend an EHC Plan in enough time before a child or young person moves between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.

What happened

16. Mrs X has a child, Y who is of secondary school age. Y has special educational needs including social communication and auditory difficulties. They also have high levels of anxiety. Y has an EHC Plan which prior to 2024 named a mainstream secondary school however Y had not attended since the autumn term in 2022.
17. In May 2023 Mrs X appealed to the SEND tribunal after the Council issued an amended EHC Plan for Y which continued to name the same mainstream school.
18. The SEND tribunal issued an order in mid-May 2024 for the Council to amend Y’s EHC Plan for Y’s provision to be delivered by an EOTAS package until such time that they were able to attend school again.
19. The Council issued Y’s amended EHC Plan in July 2024. The Plan outlined the provision Y would receive at home via the EOTAS package which would eventually increase to a consistent 16 hours a week. To begin with the package was a minimum of:
• 5 hours a week (increasing to 7 and then 16 hours) of core education tuition to include math, English, science and cookery.
• 1-2 hours a week social and life skills and physical exercise.
• 45-50 minutes cognitive behaviour approach support.
• Speech and Language therapy for one hour a week.
• Support from an adult trained in meeting the needs of young people with anxiety.
20. Mrs X complained to the Council in September 2024 as the EOTAS package of support was not in place, so Y remained without any education.
21. The Council did not provide a stage one response until January 2025. The Council said it had made referrals for tuition in August, September and December 2024 however these were unsuccessful. The Council apologised for the delays Y and Mrs X had experienced. It said it had approved a recent request from Mrs X for a personal budget so she could arrange and pay for Y’s provision herself and had referred this to a provider to manage.
22. Mrs X escalated her complaint to stage two of the complaints procedure at the end of January 2025.
23. Mrs X complained to us in September 2025 as she had not received a stage two response despite chasing the matter and escalating it to her MP. She said Y still did not have any provision in place and that their EHC Plan was now out of date. She said Y was now starting year 11 and the lack of education meant Y would unlikely be in a position to do their GCSEs.
24. We asked the Council to provide a stage two response without further delay.
25. The Council did not provide a stage two complaint response until December 2025. It apologised for the delay in responding blaming an increase in demand. The Council acknowledged that Y was removed from school roll in July 2024 and therefore it should have put provision in place following the tribunal order for EOTAS. It offered Mrs X £9,800 to acknowledge Y’s loss of education during that period since the May 2024 tribunal order, which she did not accept.
26. Mrs X remained unhappy and brought the complaint back to us.
27. Since complaining to us the Council issued a draft EHC Plan in January 2026 and a final amended EHC Plan for Y in March 2026 ahead of their transition to post-16 education. There is no evidence the Council held an annual review prior to this to allow input from Mrs X and Y. The amended Plan names a specialist post-16 placement from September 2026 onwards. Mrs X has submitted a separate complaint about the Council’s handling of Y’s post-16 EHC Plan.
28. Mrs X said Y continued to be without any education or the EOTAS package during 2026 to date.

My findings

29. Following the SEND tribunal’s order in May 2024 the Council issued Y’s amended EHC Plan in July 2024 which specified they should receive their education via an EOTAS package. The EOTAS package should have been fully in place by September 2024 for the beginning of that academic year. To date (June 2026) Y has not received any education since the Council issued that Plan. That is fault.
30. On balance, given the lack of evidence to show otherwise this injustice will continue until the end of this academic year in July 2026 which means Y will have lost out on two full academic years (six terms) of education. This covers a crucial and important period of Y’s education during years 10 and 11 when they should have completed their GCSE exams.
31. The Council’s handling of Mrs X’s complaint into this was subject to significant delays. The Council took 11 months to issue a stage two response and the whole complaints process took a total of 15 months. That delay was fault and caused Mrs X frustration and time and trouble chasing the matter.
32. Mrs X has already made another complaint about how the Council handled Y’s post-16 transition EHC Plan including removing EOTAS. Therefore, I have not considered this any further.
33. Following other Ombudsman investigation into this Council where similar fault was found it agreed to take action and improve its services around complaint handling and how it deals with post-16 education cases. Therefore I have not made any further recommendations around this as we will monitor compliance through our casework.

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Action

34. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mrs X and Y and pay Mrs X a total of £13,500 to recognise the impact on Y’s education and social development caused by the failure to put any education or provision in line with Y’s EHC Plan in place between September 2024 and July 2026. This amount also recognise the distress, uncertainty and time and trouble caused to Mrs X by the faults.

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. Create and provide us with an action plan showing how the Council will ensure it has sufficient processes and commissioning arrangements in place for tutors and therapists to deliver Education Other Than at School (EOTAS) packages in a timely manner. The action plan should include timebound actions and should take no longer than three months to complete.
2. The Council should provide us with evidence it has complied with the above actions.

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Decision

36. 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