Summary: The Council delayed ensuring all of the provision in Miss X’s child, Y’s, Education, Health and Care (EHC) Plan was in place following a tribunal order. This meant Y did not receive all their provision between June and July 2025. The Council agreed to apologise to Miss X and Y and make a payment to remedy the injustice that caused.

The complaint

1. Miss X complained about how the Council has handled her child, Y’s education between 2024 and 2025. She said the Council failed to provide Y with a suitable school placement after naming a mainstream school in their Education, Health and Care (EHC) Plan. It then delayed arranging Y’s Education Other Than At School (EOTAS) provision following an order from the SEND tribunal.
2. Miss X further complained about inadequate aftercare from the Council in 2024 when Y was released from a secure hospital.
3. Miss X said the Council’s decision to name a mainstream school contributed to Y being sectioned at a secure hospital which caused significant 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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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. I have investigated the delay in arranging Y’s educational provision between May and September 2025 following a SEND tribunal order to amend Y’s EHC Plan to include EOTAS.
9. I have not investigated Y’s education prior to May 2025. This is because Miss X had appealed the Council’s decision to name a ‘mainstream school’ in Y’s EHC Plan which was issued in July 2024 to the SEND tribunal. The core of Miss X’s appeal to the tribunal was about the Council’s decision to name a mainstream school, in Y’s EHC Plan. Miss X wanted Y’s provision to be delivered otherwise than in a school (EOTAS). Therefore, I cannot investigate the period July 2024 to May 2025 (when the amended Plan following tribunal was issued) as it would result in me looking at the Council’s decision and reasoning to name mainstream Y’s EHC Plan. Investigating would therefore trespass on the tribunal’s jurisdiction. In line with the reasons explained in paragraphs 18-23 this period falls outside of our jurisdiction and is therefore not something I can investigate.
10. I have not investigated the period after September 2025. This period is after Miss X complained to us and therefore would need a new complaint to the Council. because Y was admitted to a secure hospital again during this month. At the time of writing Y remains detained.
11. I have not investigated Miss X’s complaint about a lack of and/or poor Section 117 aftercare in mid-2024 when Y was released from a secure hospital. This is because we have already considered this in a previous Ombudsman investigation. We made a final decision not to investigate this in December 2025.

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How I considered this complaint

12. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
13. Miss 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

Education, Health and Care Plans

14. 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. 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.
15. 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).

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 law says that where the tribunal orders the Council to amend an EHC Plan then the Council should issue a final amended EHC Plan within five weeks of the order being made. This means that provision should be in place to begin from the point the final Plan is issued.

SEND tribunal

18. 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.
19. 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.
20. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207.
21. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
22. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
23. We cannot trespass in any way on the jurisdiction of the tribunal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207.

What happened

24. Miss X has a child, Y and in 2024 Y was of secondary school age. Y has historically struggled with attending school due to anxiety and mental health issues. Y was identified as autistic in 2024 during an EHC needs assessment and also diagnosed with Post Traumatic Stress Disorder (PTSD) due to bullying. Following a mental health breakdown Y was section under the Mental Health Act and detained at a secure hospital between May and July 2024.
25. The Council issued Y with an EHC Plan in July 2024. The Plan outlined the specialist provision Y was entitled to which relied on them being in a school environment. The EHC Plan named Y’s placement as a mainstream school which was yet to be confirmed.
26. In October 2024 Miss X appealed to the SEND tribunal. She said mainstream school was inappropriate for Y and wanted Y’s education to be delivered via an EOTAS package. Miss X appealed sections B, F and I of Y’s EHC Plan.
27. The Tribunal issued an order for the Council to amend Y’s EHC Plan in April 2025. The Council issued Y’s amended EHC Plan at the end of May 2025 which shows Y would have their education delivered via an EOTAS package. Section F of Y’s EHC Plan included:
• 25 hours a week tuition to include 6 hours of outdoor learning
• Small group work
• Equine therapy for one hour each week
• Six yearly sessions of occupational therapy
• Weekly 30-60 minute emotional literacy interventions
28. Miss X complained to the Council at the end of May 2025 about a lack of preparation and communication around Y’s EOTAS package and 25 hours a week tuition provision. Miss X said the Council had five weeks to prepare Y’s provision but so far nothing was arranged and Y had no start date. She was also concerned the Council had suggested Provider A which she said wasn’t appropriate due to past involvement.
29. Communication records between Miss X and the Council show the Council was arranging and finalising Y’s timetable into the first week in June.
30. The Council responded to Miss X at stage one of its complaints procedure at the end of June 2025. It accepted, following professional advice, that Provider A was not appropriate. It said this contributed to a shorter timeline in finalising Y’s package. It also accepted that scheduling, timing and communication around Y’s provision did not meet standards following the tribunal order. It said the current package delivered just under an hour short of 25 hours but this would be adjusted to ensure Y received the full number of hours they were entitled to.
31. Miss X escalated her complaint to stage two of the complaints procedure. She said the package in place was two hours short and Y was only receiving English tuition despite the tribunal ordering a broad curriculum. She also raised concerns about what would be in place by September for the 2025/26 academic year.
32. The Council responded to Miss X at the end of July 2025. It acknowledged the provision in place between June and July did not equate to the full 25 hours but said that was now in place. It said it was currently in the process of confirming Y’s arrangements for September 2025 and would finalise this as soon as possible.
33. Miss X remained unhappy and complained to us in August 2025. She said the tuition provided between June and July 2025 was not a broad range of subjects. She also said Y did not receive their equine therapy or health provision until mid-June.
34. Records show the Council finalised Y’s timetable for the next academic year by the end of August 2025 and this was in place for Y to begin receiving that provision by 2 September 2025.
35. Y’s mental health deteriorated and in mid-September 2025 they were admitted to a secure hospital where they remain to date with no planned discharge date.

My findings

36. Due to both jurisdictional constraints and Y’s personal circumstances as outlined above there is only a limited period of time which I can consider.
37. Following Miss X’s appeal the SEND tribunal issued an order for the Council to amend Y’s EHC Plan to show EOTAS. The Council issued the amended EHC Plan in a timely manner at the end of May 2025. This meant the Council should have ensured all of Y’s provision was in place to be delivered by the first week of June 2025. Records show, and the Council accept, that its communication with Miss X was poor and Y’s package fell slightly short of the 25 hours they were entitled to and it was not a broad curriculum of all core subjects as required. There was also a sight delay in securing Y’s equine therapy and health provision. This was fault and caused distress and uncertainty to Miss X and meant Y did not receive all of the provision for that six week period.
38. The Council did put Y’s full timetable in place prior to the September 2025 term beginning, albeit not until late August. The timetable shows Y was to receive tuition in a range of subjects and it included provision for therapy and breaks as appropriate. As the evidence shows Y’s provision was in place prior to the academic year there is no fault in the Council’s actions in August and September 2025.
39. At the time of writing Y remains in a secure hospital and therefore Miss X can make a new complaint in the future if, when released she has concerns about how Y’s education is handled.

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Action

40. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Miss X and Y for the distress and uncertainty caused by the delay in securing all of Y’s EOTAS provision between June and July 2025 and the poor communication following the SEND tribunal order. 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. Pay Miss X a total of £500 to recognise the impact caused by the EOTAS provision Y did not receive between June and July 2025, and the injustice caused to her.
3. Remind staff via staff training or briefings that the Council should use the five weeks following a SEND tribunal order to amend an Education, Health and Care Plan to ensure that specialist provision is in place at the time it issues the amended final Plan.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. 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