Summary: There was fault by the Council. There was poor communication and delay when dealing with an education personal budget request. The Council also failed to ensure that a child received the provision in Section F of an Education, Health and Care Plan after the school had told officers that the child was not receiving all the provision. An apology and a symbolic payment remedies the injustice.

The complaint

1. The complainant, Mrs X, complains the Council did not provide the provisions in Section F of an Education, Health and Care (EHC) Plan from January 2025 until June 2025 (25 004 260). Mrs X also said there was poor communication and delay by the Council after receiving a personal budget request (25 004 257).

2. Mrs X says that her child, Y, has missed education.

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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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What I have and have not investigated

6. I have investigated events from January 2025 until 28 April 2025.
7. I have not investigated events relating to educational provision after 28 April 2025. 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)
8. 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.
9. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
10. Mrs X appealed to the SEND tribunal after an EHC Plan was issued on 28 April 2025. This appeal was decided by consent order, after the Council agreed to Education Other Than At School (EOTAS) in June 2025. As the reason Y was not attending school was directly related to the content of the tribunal I have not investigated matters after 28 April 2025 when the appeal right arose.

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How I considered this complaint

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

Law and guidance

13. A child or young person with special educational needs may have an 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. 
14. 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.
15. 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. 

Key facts

16. Y has an EHC Plan and had been attending school on a part-time timetable from December 2024 for one hour a day. Mrs X says that Y stopped attending school in January 2025.
17. The Council has said that it has evidence from an advisory tutor that Y was accessing school for half an hour each day and some online tutoring had been arranged. I have also seen file notes of a meeting, to discuss Y’s reintegration into school on 25 January 2025. Notes from the advisory tutor at the end of January mention Y was attending school for up to an hour per day.
18. The school emailed the Council on 4 February 2025 to say that it could not meet Y’s provision in Section F of the EHC Plan as they were only attending school for one hour per day, with a trusted adult outside of the classroom. The school said they were providing online tuition for Y at home.
19. Mrs X said that after the Easter holidays Y received 5 hours mentoring per week.

25 004 260 Educational provision

20. Mrs X complains the Council did not provide the provisions in Section F of an EHC Plan from January 2025 until 28 April 2025.
21. The Council accepts it was at fault and that no educational provision was made from March 2025 until June 2025. (I am not investigating from 28 April 2025 onwards.)
22. From the information I have, there is evidence that Y was still attending school for some sessions in January 2025 and that some online tuition was available. So, at this point, while the full provision in Section F may not have been provided, the school was providing some educational provision that was suitable for Y’s needs at the time. So, I do not find fault at this point.
23. On 4 February 2025 the school told the Council that it could not provide the provision in Section F. The Council responded on 14 February to the school to say ‘regarding the alternative provision that needs to be put in place for Y while they are struggling to attend the school setting, while this is the responsibility of the Local Authority to ensure is being carried out, the role of supporting provision from Section F of the EHC Plan is delegated to the named school in the EHC Plan’. 
24. The school told the Council that it could not provide the provision in the EHC Plan on 4 February 2025. The Council told the school that it was the Council’s responsibility to ensure it was carried out. It then went on to say it delegated this responsibility to the school, as it was named in the EHC Plan. This was fault, the council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
25. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the harm caused by that loss. In response to my enquiries, the Council has said that it is willing to remedy the loss of education at the higher rate of £2400 per term. It has offered a payment totalling £2400 for the period of 3 March to 18 June 2025.
26. I am only looking at the period until 28 April 2025, although I welcome the Council’s decision to continue the remedy until 18 June 2025. But, I consider the Council should offer a remedy for the month of February 2025 also. This would be an additional £800.

25 004 257 Personal budget

27. Mrs X complains there was poor communication and delay by the Council after receiving a personal budget request.
28. Mrs X made a personal budget request on 25 March 2025. The documents were considered at panel and Mrs X was told of the outcome on 8 May 2025. Mrs X was told in an email on 14 May that the documents would be sent to panel on 22 May 2025 to consider her request for an EOTAS package.
29. In its response the Council upheld Mrs X’s complaint. The Council said ‘it recognises the importance of accuracy when submitting requests for consideration and deeply regretted the errors identified in the process and apologised’. The Council offered a symbolic payment of £300 to recognise this and other delays. I consider that this is a satisfactory remedy already offered by the Council and do not intend to propose a further remedy.

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Action

30. Within one month of the date of the decision on this complaint the Council should:
• Apologise to Mrs X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

25 004 257 Personal budget

• Pay Mrs £300. This part of the remedy has already been paid and so is complete.

25 004 260 Educational provision

• Pay Mrs X £2100. (This is in addition to the £1500 already paid, consisting of £400 for the therapy oversight complaint and the £1100 paid in May 2025.)
3. The Council should provide us with evidence it has complied with the above actions.

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Decision

32. I have completed my investigation and I find fault causing injustice. This complaint is upheld. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman