The Ombudsman's final decision
Summary: The Council failed to arrange the education and additional support in Ms X’s child’s Education, Health and Care Plan. As a result, Ms X’s child missed out on additional support including social integration opportunities. Ms X’s child did not miss out on education, as Ms X funded her child’s education herself for several months at a time before being reimbursed by the Council. This arrangement was further fault and caused Ms X significant, avoidable distress. To recognise the injustice caused, the Council has agreed to apologise to Ms X and her child, pay Ms X £1,000 and take action to improve its services.
The complaint
Ms X complained about the Council’s actions in relation to her child, Z’s, special educational needs. She said the Council: delayed making a decision on her request for an education, health and care needs assessment in November 2021; failed to properly engage with the Tribunal process, which led to delays; delayed issuing a final Education, Health and Care Plan following the appeal hearing in July 2024; and failed to arrange the provision in Z’s Education, Health and Care Plan following the Tribunal order.
Ms X said the Council’s faults have had a negative impact on Z’s educational development and it has caused them both distress and frustration.
Ms X wants the Council to arrange and fund the provision and pay her a financial remedy.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. 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).
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, or the SEND Tribunal, in this decision statement.
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) 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).
Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the Tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended) The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)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(i), as amended) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).
What I have and have not investigated I have not investigated complaints 1a and 1b for the reasons set out below.
Complaint 1a Ms X complained about events dating back to 2021. There is no good reason that Ms X did not complain to us about these events sooner and so I have not investigated these earlier complaints.
My investigation begins with the date of the Tribunal order on 2 July 2024 and ends with the date of the Council’s final complaint response on 7 February 2025.
Complaint 1b Ms X complained about the delays in the Tribunal process and said the Council failed to properly engage with the Tribunal.
We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (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). For this reason, I have not investigated this part of Ms X’s complaint.
I have investigated complaints 1c and 1d.
How I considered this complaint
I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
Ms X and the Council had an opportunity to comment on my draft decision. All comments received were considered before I made a final decision.
What I found
Law and guidance Education, Health and Care Plans (EHC Plans) A young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them.
The EHC plan is set out in sections which include: Section B: The child or young person’s 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 school.
Section J: Details of any personal budget required to fund the provision in the EHC Plan.
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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 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 appeals 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.
The Ombudsman cannot direct changes to the sections of the EHC Plan which relate to education or name a different educational setting. Only the SEND Tribunal can do that.
If someone appeals to the Tribunal and it orders changes to be made to the EHC Plan, the council must carry out the order within five weeks of the Tribunal’s decision.
Personal budgets and direct payments A personal budget is a notional amount of money that would be needed to cover the cost of making the provision specified in someone’s EHC Plan. There are four ways in which a child’s parent or the young person can be involved in securing the provision: Direct payments – where individuals receive the cash to contract, purchase and manage services themselves An arrangement – where the council, school or college holds the funds and commissions the support in the Plan (these are sometimes called notional budgets) Third party arrangements – where direct payments are paid to and managed by an individual or organisation on behalf of the child’s parent or young person A combination of the above. (9.101, SEND Code of Practice) The final allocation of funding must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision. This information should also be included in Section J of the EHC Plan. (9.102, 9.103 SEND Code of Practice) Education Other Than In School Education Other Than in School (EOTIS) is a package of education and support that children can receive when it is not suitable for them to be educated in a school setting. These packages of support can be delivered in settings other than a school, including at the child’s home.
North Yorkshire County Council’s complaints policy The complaints policy in force at this Council when Ms X complained, said officers will: respond to complaints at stage one within fifteen working days, potentially extended by twenty working days for very complex cases; and respond to complaints at stage two within twenty working days of agreeing the statement of complaint.
What happened Ms X’s child, Z, has special educational needs, experiences anxiety around attending school and has an EHC Plan.
Ms X appealed Z’s EHC Plan to the SEND Tribunal as she did not agree Z should attend a mainstream setting. Ms X arranged a package of education for Z that they accessed at home while she awaited the outcome of the Tribunal.
On 2 July 2024 the Tribunal ordered the Council to amend Z’s EHC Plan to say they would receive 30 hours of education and support each week as part of an EOTIS package, rather than attend a mainstream school.
The Tribunal noted there was already an education package in place and said, as it took Z a long time to trust their current teacher, it would be concerning if the current provision did not remain in place.
The Council put a referral into a service that provided tuition in July 2024, as it wanted to consider commissioning a different teacher for Z. The Council said it is not clear whether this referral progressed. The Council also said its staff met to discuss Z’s EOTIS provision around this time but it is not clear how these meetings progressed.
The Council had until 6 August 2024 to issue the final, amended EHC Plan as ordered by the Tribunal. The Council issued the Plan the day before the deadline. It listed a range of provision in Section F that Z should receive including: 30 hours per week of education as part of an EOTIS package (as ordered by the Tribunal) including teaching in science; Three hours per term of direct input from a speech and language therapist, with the therapist also providing guidance to staff working with Z; Input from an occupational therapist once a term to assist Z in becoming more independent; and A place to be provided for Z to engage with one or two other students socially to decrease their social anxiety.
The section around personal budget was left blank.
The Council had not arranged any of the education in Z’s EHC Plan by the time term started in September 2024, nor the additional support such as occupational therapy, speech and language therapy and access to social activities with other students. It also had not made any funding available to Ms X to continue funding the package of education that was already in place.
Ms X paid for the education package herself from September 2024 and the Council reimbursed her almost three months later. Ms X paid just over £10,000 between 2 September and 6 December 2024. The Council reimbursed her for this in December 2024.
The Council issued Z’s final EHC Plans again in October and December 2024 after Ms X asked for changes to be made, but no significant changes were made to the provision in the Plan.
Ms X complained to the Council in October 2024. She said the Council still had not commissioned a teacher for Z and had not provided her with enough funding to continue paying the current teacher herself. Ms X said as a result she was contemplating having to sell her house to continue funding Z’s education.
Ms X also complained the Council still had not issued Z’s final EHC Plan in line with the Tribunal’s order and complained about other matters dating back to 2021 and issues relating to the Tribunal proceedings.
By early December 2024 the Council still had not made any arrangements itself to provide the education in Z’s EHC Plan. Ms X continued funding the education herself. She again paid just over £10,000 between 9 December 2024 and 14 March 2025 and was reimbursed for this in March 2025. The Council still had not arranged the speech and language therapy, occupational therapy or access to social activities with other students.
Ms X contacted the Council in January 2025. She said Z did not have access to any of the speech and language therapy, occupational therapy or social activities in their EHC Plan. Ms X said a local school had agreed Z could attend there for a few hours each week to integrate socially with other pupils.
The Council discussed the missing provision at an EOTIS panel later that month. It arranged the weekly social integration provision at the school, which started in late March 2025. It still did not arrange any speech and language or occupational therapy support and said this was due to difficulties finding providers.
An annual review in February 2025 noted that Ms X was still funding the education provision as the Council had not yet commissioned any itself. The Council said it would continue reimbursing her using the current system until the Council had started commissioning the provision in Section F.
The Council took more than three months to respond to Ms X’s complaint at stage one. It said much of what she had complained about was late or had been dealt with by a tribunal. It did not respond to her complaint that it still had not commissioned a teacher to deliver the EOTIS package.
Ms X asked the Council in February 2025 to investigate at stage two. The Council responded on 7 February 2024 and declined to investigate her complaint at a second stage. It repeated that much of Ms X’s complaint was dealt with by the tribunal or was now late.
Ms X was unhappy with the Council’s response and complained to the Ombudsman.
From late March 2025 the Council agreed to properly fund the education package that was already in place.
The Council did not put in place the occupational therapy for Z until late June 2025 and did not put in place the speech and language therapy until September 2025.
The Council said its delays in commissioning the education and section F provision in this case were due to a lack of speech and language therapists, as well as delays caused by its own safeguarding, quality assurance and approval processes.
My findings
Ongoing injustice I have decided to exercise discretion to remedy beyond the end of the investigation period on 2 February 2025. This is because the Council has already accepted continued fault which has led to ongoing missed provision.
In these circumstances, it would not be reasonable to ask Ms X to raise new complaints to seek a remedy for this later period. I have therefore remedied the injustice caused by the faults in this case, up to the end of term in July 2025.
EHC Plan following Tribunal Ms X complained the Council delayed issuing Z’s final EHC Plan following the Tribunal in July 2024. The Council issued a final EHC Plan for Z within the statutory timeframe of five weeks, on 5 August 2024. The Council was not at fault.
Education provision Once the August 2024 EHC Plan was issued, the Council had a legal duty to ensure Z received the EOTIS package set out in their Plan.
The Council failed to commission and arrange any of the education itself in time for term starting in September 2024. Instead Ms X paid for the provision up front at a significant cost and was only reimbursed by the Council every three months. Ms X continued funding the provision this way for seven months.
The Council described this arrangement to the Ombudsman as “one-off direct payments” to reimburse Ms X for the cost of the education she had arranged. However the SEND Code of Practice is clear that where a council is using a personal budget (administered through direct payments), the final allocation of funding must be sufficient to secure the agreed provision. It also says the details of the personal budget must be included in Section J of the EHC Plan. The Council did not ensure Ms X had sufficient budget to secure Z’s education provision using this system of direct payments and it did not include anything about them in Section J of the EHC Plan.
The Council should have either commissioned this education provision itself or it should have provided Ms X with a sufficient personal budget to pay for the education using direct payments. The Council did neither, leaving Ms X to pay out of her own money to keep Z’s education in place for months at a time. This was fault by the Council and caused Ms X a period of significant and avoidable distress.
Special educational needs provision Z’s August 2024 EHC Plan also said Z would receive speech and language therapy and occupational therapy once a term and would be provided with opportunities for social integration with other students.
This provision was in section F of Z’s EHC Plan and the Council had a legal duty to ensure they received it. Instead the Council failed to arrange the speech and language therapy for an entire school year, the occupational therapy for two terms and the social integration provision for most of one term.
This was fault and led to Z missing out on several types of additional support they should have received. Ms X said missing out on this provision, particularly the social interaction, caused Z distress.
Complaint handling The Council significantly delayed responding to Ms X’s complaint at stage one of its complaints process. It also failed to address all her complaints at both stages of the complaints process.
The Council was entitled to decline to investigate matters which were late or that were dealt with by the Tribunal. However the ongoing issue of the Council failing to commission the provision in the Plan is a matter Ms X clearly raised her concerns about the Council should have provided a response to these concerns. The Council’s complaint handling was delayed, poor in parts and caused Ms X frustration at an already stressful time.
Action
Within one month of the date of the final decision the Council has agreed to: Apologise to Z and to Ms X for the injustice caused by the faults in this case; Pay Ms X £400 to recognize the avoidable distress and frustration she was caused by the Council’s actions in this case; and Pay Ms X £600 to reflect the speech and language therapy, occupational therapy and social integration opportunities Z missed between September 2024 and July 2025.
Within three months of the date of the final decision the Council has agreed to: Review its current procedures for ensuring provision is in place promptly following an order to amend an EHC Plan by the SEND Tribunal and outline what action it has taken to reduce delays in this area; Use this case as a learning case with SEND staff, to highlight the legal requirement for personal budgets (direct payments) to be sufficient to secure the provision in a Plan, and that parents should not be expected to fund the provision themselves for months at a time and then seek reimbursement afterwards; Outline what action it is taking to reduce delays within its quality assurance and approval processes, which was partly the reason for the significant delay in arranging the provision in this child’s Education, Health and Care Plan; and Outline what action it is taking to prevent recurrence of delays in its complaint handling as seen in this case.
We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
The Council should provide us with evidence it has complied with the above actions.
Decision I find fault causing injustice and the Council has agreed to take action to remedy injustice.
Investigator's decision on behalf of the Ombudsman