Summary: We have discontinued our investigation into Miss X’s complaint that the Council did not secure the provision in her daughter’s Education, Health and Care Plan. The Council acknowledged its failure and offered a substantial remedy. Further investigation is unlikely to lead to a different outcome.

The complaint

1. Miss X complained the Council has not delivered the provision set out in her daughter’s EHC Plan since a Tribunal decision in January 2023.

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The Ombudsman’s role and powers

2. 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’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)

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How I considered this complaint

4. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
5. 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

The law and guidance

6. 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.
7. 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)

What happened

8. Miss X’s daughter, Y has an EHC Plan. This sets out the education and SEN provision that Y needs. This included tuition, speech and language therapy (SALT), occupational therapy (OT), and mentoring.
9. Y did not receive all the provision and Miss X complained to the Council. The Council acknowledged its failure and offered a remedy. The remedy resulted in the Council securing some of the provision, in addition to a substantial financial remedy in recognition of the missed provision.

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Decision

10. I have discontinued my investigation. I am satisfied with the actions the Council has taken or proposes to take. Further investigation is unlikely to lead to a different outcome.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman