Summary: Mrs X complained the Council delayed reviewing her child, Z’s, Education, Health and Care (EHC) Plan and failed to ensure Z received the therapies in the EHC Plan. She also complained about the Council’s complaint handling. We will not investigate this complaint. We are unlikely to find fault in the Council’s refusal to provide the therapies in Z’s EHC Plan. We are unlikely to add to the Council’s own investigation in relation to the delayed review and complaint handling.

The complaint

1. Mrs X complained the Council:
• failed to ensure her child, Z, received the provision specified in sections F and G of their Education, Health and Care (EHC) Plan;
• delayed the annual review of Z’s EHC Plan; and
• acted with fault in the way it dealt with her complaints.
2. Mrs X says Z’s health suffered through not receiving necessary therapies. She says what happened caused avoidable stress for her and her family.
3. Mrs X’s submitted an online complaint form to us stating she would like the Council to:
• fund the therapies in Z’s EHC Plan from now on and provide funding so he can catch up on therapies he has missed in the past;
• reimburse her for therapy she has funded privately;
• provide financial remedies to Z and his family in recognition of their distress, inconvenience and the negative impact on Z’s health; and
• apologise.
4. Since then, Mrs X has told us she did not want the Council to pay for missed therapies.

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The Ombudsman’s role and powers

5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as NHS organisations. (Local Government Act 1974, sections 25 and 34(1), as amended)
7. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. there has been fault which has caused significant injustice, we may suggest a remedy. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, sections 26(1) and 26A(1), as amended, section 24A(6), as amended, section 34(B))

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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.
10. The complainant has had an opportunity to comment on a draft version of this decision. I considered her comments before making a final decision.

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My assessment

Provision in sections F and G of EHC Plan

11. A child or young person with special educational needs (SEN) 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. Section F details the special educational needs provision the child needs. Section G details the health provision required because of their learning difficulties or disabilities which result in the child or young person having SEN. Section I of the EHC Plan names the educational setting a child should attend.
12. Usually, 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). However, the Council has no duty to do so if the child is electively home educated. This is when a child’s parents choose to educate them at home.
13. Mrs X and her family moved the Council’s area in May 2024. Z already had an EHC Plan from their previous council. This specified therapies in sections F and G of the EHC Plan. Section I of Z’s EHC Plan stated that Z was electively home educated. In the past, Z’s previous council paid for the therapies in Z’s EHC Plan even though he was electively home educated. The Council refused to do the same when Z moved into its area.
14. An investigation into this part of the complaint is unlikely to find fault with the Council. This is because:
• when parents choose to home educate a child with an EHC Plan, their council no longer has a duty to ensure the child receives the provision in section F of the plan. The Council was therefore entitled to refuse to pay for or provide the therapies listed in section F of Z’s EHC Plan; and
• the duty to ensure a child receives the provision in section G of their EHC Plan lies with their local NHS Integrated Care Board (ICB), not their council. The Council therefore has no duty to provide the therapies listed in section G of Z’s EHC Plan.
15. We cannot investigate the actions of Mrs X’s local ICB. Mrs X can complain to the Parliamentary and Health Service Ombudsman (PHSO) about the ICB’s actions.

EHC Plan review delay and complaint handling

16. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)
17. As part of its local complaint investigation, the Council has already identified it delayed reviewing Z’s EHC Plan by 21 weeks. It has apologised to Mrs X and:
• carried out post-complaint reflection discussions with relevant staff about its responsibilities when children with EHC Plans move into its area;
• committed to training relevant staff on elective home education; and
• offered a symbolic financial remedy of £200. This was in recognition of the frustration Mrs X suffered because of the delay in the annual review and her time and trouble in bringing a complaint.
18. An investigation by us into the EHC Plan review delay and complaint handling is unlikely to achieve anything further for Mrs X. This is because:
• the Council has already identified delay, apologised for it and taken steps to prevent it happening again;
• the Council has offered Mrs X a symbolic financial remedy. Although there was a delay in Z’s annual review, the new EHC Plan still states he is electively home educated. This means the Council has no duty to ensure he receives the provision in section F of his EHC Plan. So, he has not lost out on any educational provision as a result of delay by the Council. It is unlikely an investigation would conclude any delay by the Council was the only or main cause of Z not receiving the health provision in section G of his EHC Plan. In these circumstances, a symbolic sum of £200 to recognise the frustration for Mrs X for the Council’s delay and her time and trouble in making a complaint is a fair remedy. It is in accordance with our guidance on remedies; and
• even if we were to investigate this part of the complaint and uphold it, we would be unlikely to recommend further service improvements or a larger sum for Mrs X.

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Final decision

19. We will not investigate this complaint. This is because an investigation is unlikely to find fault in the Council’s decision not to fund Z’s therapies or achieve more than the Council’s own investigation in the other matters Mrs X complains about.

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Investigator's decision on behalf of the Ombudsman