Summary: Miss X complained about the Council’s failure to put in place the Education Otherwise Than At School package for her daughter. We find the Council was at fault for its delay in securing provision for Miss X’s daughter. This caused Miss X distress and upset. Miss X’s daughter missed out on provision she is legally entitled to. The Council has agreed to apologise to Miss X and make a payment to her.

The complaint

1. Miss X complained about the Council’s failure to put in place the Education Otherwise Than At School (EOTAS) package for her daughter, Y. This has caused distress and upset, and Y has missed on the provision she is entitled to.

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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 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.
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 Miss X and the Council as well as relevant law, policy and guidance.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant guidance and legislation

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. The EHC Plan is set out in sections.
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)  
10. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

What happened

11. Y has special educational needs and an EHC Plan. Miss X appealed to the Tribunal because she disagreed with the content of Y’s EHC Plan. The Tribunal issued a consent order in late February 2025. This order directed the Council to amend Y’s EHC Plan.
12. The Council emailed Miss X in early March. It said it had agreed funding for Y to have a mentor from a provider (Provider A) for five days per week until the end of the academic year. It said the mentor would be able to support Y and help her with her transition to further alternative provision. It said it was waiting for a response to the referrals it had sent to an alternative education provider (Provider B).
13. The Council issued Y’s amended final EHC Plan on 12 March. This said Y’s education would be delivered through an EOTAS package.
14. The Council emailed Miss X the following day. It said it had not been possible to secure a mentor from Provider A. However, Provider B had confirmed it could support Y after the Easter holidays.
15. Provider B sent Miss X a consent form in May. Miss X expressed concerns about signing it because Y did not have a mentor.
16. The Council assigned a new officer to deal with Y’s EOTAS package in May. The officer sent an internal email to another officer in late May. She asked the other officer to contact Miss X and explain Y would have 1:1 or 2:1 support when she attended Provider B.
17. The Council made another referral to Provider A in late May about mentor support for Y.
18. Miss X complained to the Council on 10 June. She said it had failed to put in place Y’s EOTAS package.
19. The Council sent Miss X the consent form for Provider B two days later. Miss X returned the form just over a week later.
20. The Council contacted Miss X and said it could not open the form. It sent her a copy in the post. Miss X completed the form and sent it back in the post.
21. The Council responded to Miss X’s complaint in late June. It said it recognised there had been some delays and gaps in communication. Provider B was ready to start once she had signed the consent form. It also said Provider A was waiting for the security checks to be completed before it could assign the mentor to Y.
22. Miss X referred her complaint to stage two of the Council’s complaints procedure. She said it had not properly addressed her concerns.
23. The Council organised a tutor from Provider A to support Y for two hours per week in early July. It said it had organised this until it could provide a mentor for Y.
24. Miss X took Y to attend a session at the library with the tutor. The tutor did not attend. Miss X contacted the Council and said she was unhappy the tutor had not turned up and no one had let her know.
25. The Council emailed Miss X and said it would contact Provider A about the issues. Miss X responded and said the tutor issues had been resolved. She asked whether Y was still going to have a mentor. She also asked who was going to be taking Y to and from Provider B and what the plans were for the EOTAS package from September.
26. The Council replied to Miss X and said it was still working with Provider A to provide Y with a mentor. It also said there was an expectation the mentor would take Y to and from Provider B.
27. The Council issued its final response to Miss X’s complaint in late July. It partially upheld her complaint. It said there were some delays with Y receiving the support from her EOTAS package. It apologised for the disruption and uncertainty this caused. It said the delays occurred due to provider availability, security clearances processes, the need for parental consent and staffing changes.

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Analysis

28. The Council has a legal and non-delegable duty to secure the provision in a child’s EHC Plan. It failed to meet this duty. This is fault. It agreed to provide Y with an EOTAS package when it issued her final EHC Plan in March 2025. However, Y did not receive any provision at all until July 2025 when she received some limited tutoring for two hours per week. This was two weeks before the end of term. Y did not receive any mentoring or provision at Provider B.
29. The Council made referrals to Provider A and Provider B. There were some delays in securing the provision because of staffing issues and the security clearance processes. I recognise this was outside of the Council’s control. However, as mentioned above, the Council has a legal duty to provide provision for Y. It should have contacted other providers if Provider A and Provider B did not have any availability.
30. The Council said in its complaints response that Miss X had not signed the consent form for Provider B. However, Miss X had expressed concerns about Y not having a mentor. The purpose of the mentor was to help Y transition to further alternative provision. The Council also said the mentor would take Y to and from Provider B. The Council failed to contact Miss X in May and address her concerns about lack of mentor support. If it had done so, it is likely Miss X would have returned the consent form sooner. The Council also did not explain how Y could attend Provider B if she did not have a mentor to take her.
31. The Council’s faults outlined above have caused Y a significant injustice as she went without the provision she is legally entitled to. It also caused Miss X distress and upset that Y was not receiving her provision. The Council should remedy this injustice.
32. We have made recommendations in other similar cases and asked the Council to remind its staff about the Council’s duties under section 42 of the Children and Families Act. The Council has also confirmed it has taken steps to strengthen its services to improve communication with parents and carers and ensure there is clearer accountability and continuity of case management. I am satisfied with the steps the Council is taking, and I have therefore not made any service improvement recommendations in this case.

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Action

33. By 12 June 2026 the Council has agreed to:

• Apologise to Miss X for her upset and distress.
• Pay Miss X £2,525 to reflect the loss of provision and education for Y from March to July 2025. Miss X may want to use this for Y’s educational benefit.

34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. There was fault by the Council, which caused Miss X and Y an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman