Summary: Mrs X complained the Council did not implement a tribunal order in accordance with the statutory timescales and failed to provide all the provision set out in Section F of her child, Y’s, final amended Education, Health and Care (EHC) Plan. The Council was at fault with delay in issuing Y’s EHC Plan after the tribunal order, it was unclear about Y’s specialist provision and delayed putting in place all Y’s Section F provision and failed to monitor the provision. This caused Mrs X frustration, confusion, avoidable time and trouble and uncertainty and Y missed some education to which they were entitled. The Council will apologise, make a symbolic payment and put in place service improvements.

The complaint

1. Mrs X complained the Council did not implement a tribunal order in accordance with the statutory timescales and as a result failed to secure special educational provision set out in Section F of her child, Y’s, final amended Education, Health and Care (EHC) Plan. Mrs X said as a result Y’s missed provision to which they were entitled and their emotional wellbeing suffered. Mrs X said it caused her distress and time and trouble.

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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. 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 there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or further investigation would not lead to a different outcome (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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.
9. 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)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

11. Mrs X had a right of appeal to the SEND tribunal when Y’s final amended EHC Plan was issued in June 2023, which she exercised. The appeal related to the provision set out in the Plan and the School Y should attend. The appeal hearings took place in December 2023 and February 2024. The law says we cannot consider matters that have been considered by a tribunal as set out in paragraph six above. Therefore, I cannot consider a complaint about the provision or the placement during the appeal period.
12. On this basis, I have investigated the period from March 2024 when the tribunal issued its order concluding the appeal and mid-August 2024 when the Council issued its stage 2 response.

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How I considered this complaint

13. I considered:
• the information Mrs X provided and spoke to her about the complaint;
• the information the Council provided and its response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
14. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care (EHC) Plan

15. 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.
16. The EHC Plan is set out in sections which include Section A: The child and parent’s views, interests and aspirations; 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 and Section I: The name and/or type of school.
17. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
18. Section 44 (e) of the special educational needs and disabilities (SEND) Regulations 2014 requires councils to amend the special educational provision specified in an EHC Plan, the council will issue the amended EHC Plan within five weeks of the tribunal order being made.

Maintaining the EHC Plan

19. If a school setting is not appropriate councils may arrange for any special educational provision to be made otherwise than in a school. The Council would then be responsible for continuing to secure and fund that provision (Section 61 of the Children and Families Act)
20. 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).
21. 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 its legal duty. At a minimum we expect it 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.

Complaints handling

22. The Council follows a two-stage complaints process. The target timescale for stage 2 complaint responses is 20 working days.

What happened

23. Y has autism, several physical illnesses and special educational needs. Y has had an Education, Health and Care (EHC) Plan since 2019.

Background

24. Y attended a mainstream primary school, School 1, which was named in Section I of Y’s EHC Plan. From February 2023 Y had limited attendance at School 1. Y’s mother Mrs X said Y stopped attending School 1 in September 2023 because of Y’s emotional refusal to attend School 1. Y remained on roll at School 1. From September 2023 the Council put in place one to one home tutoring, HT1, for Y for two-hour sessions, three times a week. Six hours a week in total. This continued until the end of the academic year in July 2024.

Tribunal order onwards

25. In early March 2024 the tribunal issued an order which said:
• Y would receive an education other than at school (EOTAS) package for 15 hours per week. It was agreed it would be gradually built up from Y’s current six hours of HT 1 tuition per week to 10 hours per week and then to 15 hours per week in three stages at approximately two-month intervals over a period of six months;
• the Council would have oversight of Y’s EOTAS package. It was agreed this would be carried out weekly for the first half term of the package, fortnightly for the second half-term and half-termly thereafter;
• Y would receive two hours of physical education per week, at least one hour should be hydrotherapy; and
• Y needed use of a laptop or tablet.
26. In mid-April 2024 Mrs X asked the Council when it would issue Y’s amended final EHC Plan following the tribunal order. The Council responded and said it needed to speak to an alternative provision provider before Y’s Plan could be issued and could not give a specific date. In response to my enquiries the Council said there was also delay because of a health provision query and staff leave over the Easter period.
27. Six days later Mrs X complained to the Council. She said the Council was not in line with Regulation 44 of the SEND Regulations 2014 because it had not issued Y’s amended EHC Plan within five weeks of the order being made and Y’s amended plan should have been issued by early April 2024. She also said Y was not receiving the agreed educational provision.
28. In mid-April 2024 the Council sent Mrs X a letter explaining Y’s EOTAS package totalling 14 hours per week, which included the number of hours Y would receive from three providers and one hour of hydrotherapy.
29. The same day the Council issued Mrs X with another letter setting out Y’s EOTAS package. This did not include Y’s one hour of hydrotherapy per week and different hours across the three providers. The letter explained how Y’s EOTAS package would be increased to 15 hours per week and included:

30. In late April 2024 the Council issued an updated version of Y’s final amended EHC Plan which included the requested additional information Mrs X asked for in Section A. EOTAS was named in Section I. The key parts of Section F of this Plan included:
• bespoke one to one EOTAS package starting at six hours per week increasing regularly up to 10 hours per week, unless an alternative amount was agreed with Mrs X and the Council;
• at least one hour of one to one hydrotherapy per week and one hour of physical education per week;
• eight hours per week at AP1 starting at six hours per week increasing by three hours at eight-week intervals to include five hours of animal-based provision at AP3 and forest school therapy at AP2 per week;
• Council monitoring of Y’s EOTAS package weekly for the first half term, fortnightly for the second half term, and then once per half term;
• provide Y with a laptop or tablet with appropriate software;
• 15 minutes daily practicing keyboard skills;
• development of Y’s communication and language skills in a programme developed by and directed by speech and language therapy (SALT), 30 minutes once a week by SALT and trained education staff;
• following a communication plan as directed by SALT team to be undertaken by education staff and SALT. The SALT would assess, monitor and update the communication plan, as required and there would be two to three coaching sessions by SALT to staff to implement the updated communication plan; and
• access to Lego therapy 30 minutes per week.
31. In late April 2024 a monthly report from Y’s home tuition, HT1 provider showed Y had good attendance at the two hour, three sessions they received per week and Y was taught a wide range of subjects including Science, Maths, History, Art, Design Technology and completed online learning activities.
32. In late April 2024 Mrs X contacted the Council and asked how a laptop would be provided for Y. The Council responded asking for quotes which Mrs X sent. She said the Council took no further action.
33. In early-May 2024 Council records show Y had their first one to one session with AP1 provision, which took place in Y’s home because of the lack of suitable transport. AP1 provided the Council with weekly and half termly updates on Y’s progress. AP2 and AP3 did not start at the same time. AP1 did not have a car seat for Y to transport them to AP2 and AP3. Mrs X made the Council aware in early May 2024 about Y’s transport issue.
34. In mid-May 2024 the Council responded to Mrs X’s stage 1 complaint and said:
• it accepted there was an 11-working day delay in amending Y’s EHC Plan which was not completed within five weeks of the SEND tribunal order. The Council said lessons had been identified;
• it explained Y’s EOTAS provision package and acknowledged the Council letters sent to Mrs X in mid-April 2024 could have been clearer and raised uncertainty about what provision was being put in place and lessons had been identified;
• it was looking at availability for Y’s hydrotherapy sessions;
• it was anticipated Y’s agreed provision would start in early May 2024 in addition to Y’s home tuition, HT1; and
• the Council apologised for the 11-working day delay and unclear and inaccurate correspondence and offered a £300 payment for the distress and time and trouble caused.
35. In late May 2024 Y started AP3 provision. Y should have been transported by AP1 to AP3 but Y was transported by Mrs X because a car seat still needed to be arranged.
36. In late May 2024 Mrs X remained unhappy with the Council’s stage 1 response and escalated it to stage 2 of the Councils complaints procedure.
37. In late May 2024 HT1’s monthly record showed Y engaged with the sessions and Y continued to have good attendance and Y continued to be taught a wide range of subjects including completing online learning activities.
38. In mid-June 2024 the AP1 weekly record said Y started to attend AP2 which incorporated some walking. It also said Y built one Lego set which Y enjoyed building and attended a sports day.
39. In mid-June 2024 a meeting took place between Mrs X and the Council and the Council also agreed to consider some additional key points in her complaint including confusion about the number of hours in Y’s EHC Plan and the hours commissioned, lack of clarity around delivery of Y’s tuition with HT1, hydrotherapy not in place, one hour of physical education not explored and no laptop or software provided for Y.
40. In mid-July 2024 the AP1 half term record noted Y was still receiving one to one six-hours per week which included AP2 and AP3.
41. In mid-August 2024 the Council sent Mrs X its stage 2 response and said:
• it apologised for its delayed stage 2 response;
• there was a gradual build-up of provision stated in Section F of Y’s final amended EHC Plan and would be reviewed on an eight weekly basis and physical education options were being explored but not upheld because the Council was previously unaware of this issue;
• there was no break in HT1 provision;
• it was still trying to source hydrotherapy sessions;
• it was still assessing arrangements for transporting Y to their educational provision, the Council said it had only been made aware of the concern recently;
• Y was accessing work through a tablet, Y’s EHC Plan did not specify a laptop, this point was not upheld; and
• there were some delays in Y’s provision but there was an agreement it would be accessed in a phased way responsive to Y’s needs and there was a period of eight academic weeks between late April 2024 and mid-August 2024 where some provision had not been confirmed but Y did receive home tuition and the majority of EOTAS had been in place for several weeks. The Council apologised for the uncertainty caused and continued to offer £300 for the distress and time and trouble caused.
42. Mrs X remained unhappy and complained to us.

Enquiries

43. Mrs X said Y did not receive any EOTAS provision with AP1, AP2 or AP3 until June 2024. She said Y did not receive hydrotherapy, one hour of physical education per week, transport to alternative provision, provision of a laptop, the SALT provision or any updates to Y’s communication plan, Lego therapy or monitoring of Y’s provision.
44. In response to my enquiries the Council said:
1. it acknowledged it was at fault for not issuing Y’s EHC Plan within five weeks of the tribunal order. It said it had put in place a new process for multidisciplinary meetings to be held earlier;
2. it was adopting a new casework management system to generate pre-approved letters to minimise human errors. Letters would be reviewed in relation to terminology, transparency and signposting information led by senior officers in the Spring term 2025. Tribunal and legal training had taken place for officers in the Councils SEND team in March 2025. The Council was also seeking internal approval to enhance resolution officer capacity with a focus on logging, monitoring and tracking tribunal compliance and all areas of resolution;
3. since the Council received the SEND tribunal order in March 2024 it had tried to source hydrotherapy provision for Y but had been unable to secure it;
4. Y’s SALT communication plan had been shared with Y’s tutors to support their communication with Y which had been successful. The Council said Y’s tutors and alternative provision providers were suitably experienced and qualified to meet Y’s needs. The Council said the communication plan had not been updated since 2022 because Y’s needs had not changed and Mrs X or Y’s educational placements had not requested further SALT involvement;
5. Y’s Lego therapy had not been secured. It said it had explored alternative groups for Mrs X to access with Y but Mrs X was concerned about fatigue and engagement and it would speak to Mrs X when she thought it was appropriate; and
6. further complaints were considered at stage 2 of the Councils complaints process which added to the time taken for the stage 2 response. Also officer availability and annual leave arrangements led to the stage 2 delayed response. It said Mrs X was kept up to date with stage 2 timescales.

My findings

Delay and confusion after tribunal order

45. The Council should have issued Y’s final amended EHC Plan within five weeks of the SEND tribunal order and by early April 2024. The Council issued Y’s final EHC Plan in late April 2024, which was a delay of 11-working days and was fault. It caused Mrs X frustration and avoidable time and trouble chasing the Council. The Council also caused Mrs X confusion in mid-April 2024 when it sent Mrs X two letters with conflicting EOTAS provision packages. The letters could have been clearer, this caused Mrs X uncertainty about what provision should be and was being put in place.
46. The Council has already apologised for these faults, offered a £300 remedy and put in place new service improvements explained in the paragraph above. This remedy was appropriate for the faults identified.

Missed Provision

47. Y’s Section F provision should have been put in place within five weeks of the tribunal order and therefore by early April 2024. Y continued to receive six hours of one to one provision with HT1. However, Y did not start to receive AP1 provision until early May 2024 which was a delay of approximately one month and was fault and had to take place at Y’s home due to lack of transport. AP2 started in late May 2024, this was a delay of approximately a month and a half and was fault and AP3 was not mentioned in the weekly reports until mid-June 2024 which was a delay of approximately two months and was fault. This caused Mrs X frustration, uncertainty and time and trouble chasing the Council and meant Y did not receive some of the provision to which they were entitled.
48. The records show Y received most of their Section F provision but Y was not provided with all of it between early April 2024 and late July 2024, as explained below:
1. monitoring of Y’s provision – AP1 provided the Council with weekly and half termly reports for Y between May and July 2024. HT1 provided the Council with two monthly reports in April and May 2024. There should have been a gradual build up of Y’s provision on an eight-weekly basis. However, there are no Council records to show the Council monitored Y’s progress and if it had made a decision about increasing Y’s provision every eight weeks. This was fault and caused uncertainty about whether Y’s provision should have been increased.
2. hydrotherapy was not provided by the Council as it had been unable to secure it. This was service failure;
3. physical education - the AP1 reports showed Y did undertake some physical activities such as walks and taking part in a sports day and attended AP2 that was adapted to Y’s needs. Mrs X raised lost physical activity provision in a meeting with the Council in June 2024, the Council said it was previously unaware of the issue and was exploring options. There is uncertainty and confusion on what constituted Y’s physical education and uncertainty if Y received one hour of physical education per week. The Council should have monitored this at the eight-weekly review. The lack of clarity on what was required and what was provided and whether it met Y needs was fault, causing uncertainty.
4. Lego therapy - AP1’s monthly records showed Y built one Lego set in June 2024 but there are no records which show Y received regular Lego therapy. The Council said Mrs X had concerns about additional Lego therapy sessions causing Y fatigue but there are no Council records from the time which considered this. Mrs X told me it was specified in Y’s Plan, she wanted Y to have Lego therapy and she was unhappy it had not been provided. On balance there is no evidence the Council spoke to Mrs X or sourced Lego therapy for Y. This was fault and Y missed provision to which they were entitled.
5. IT - Y’s EHC Plan stated Y should have 15 minutes daily practicing keyboard skills and Y would be provided with a laptop or tablet with appropriate software relevant to their current learning. The Council and Mrs X said Y had access to a family iPad. The Council said this supported Y’s learning. Mrs X said the family iPad was not suitable for the practice of touch typing and she had raised it as an issue in April 2024 with the Council. Touch typing is not included as a Section F provision. There is no mention of Y practicing keyboard skills in AP1 reports but HT1’s progress reports did say Y used online learning activities. The Council did not provide Y with a laptop or iPad which was fault but this did not cause Y a significant injustice because Y had access to an iPad and they had access to the iPad’s keyboard to practice their skills.
6. SALT – Y’s final amended EHC Plan sets out Y’s SALT requirements in paragraph 30 above. The Council said Y’s SALT communication plan had been shared with Y’s tutors who were suitably experienced and qualified to meet Y’s needs and they had implemented the communication plan. The Council said Y’s communication and language skills were improving shown by the good relationship Y had developed with their tutors. The Council said Y’s communication plan had not been updated since October 2022 because Y’s needs had not changed and it had not been requested by Mrs X or Y’s tutors. Mrs X said Y did not receive their SALT provision and Y’s communication plan had not been shared with Y’s tutors. Neither Mrs X or the Council provided any specific evidence that Y’s communication plan had or had not been shared with Y’s tutors. I cannot say even on the balance of probabilities if Y received the SALT provision stated in Section F of Y’s Plan and further investigation of that point would not lead to a different outcome.
7. car seat delays - The Council was made aware in May 2024 that Mrs X was transporting Y to their AP2 and AP3 sessions and AP1 sessions took place at Y’s home because AP1 did not have a suitable car seat for Y. The Council could have offered to reimburse Mrs X petrol money or provided help with buying a car seat for AP1 earlier. The delay was fault and caused Mrs X ongoing frustration and time and trouble.

Complaints handling

49. Mrs X escalated her stage 2 response in late May 2024. The Council responded in mid-August 2024. This was a delay of approximately seven weeks and caused Mrs X frustration. The Council did keep Mrs X up to date on the reason for the delay and with how long a response would take. The Council has also already apologised which was an appropriate remedy for the injustice caused.

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Action

50. Within one month of the final decision the Council will:
1. pay £300 to Mrs X for the frustration, uncertainty and time and trouble caused by the 11-working day delay in issuing Y’s final amended EHC Plan after the tribunal order and the confusion caused by the two letters explaining Y’s provision the Council sent Mrs X in April 2024;
2. apologise and pay Mrs X a symbolic payment of £950 to acknowledge the impact of the lost provision between early April 2024 and late July 2024. This remedy was calculated at £950 for the summer 2024 term, in line with the Ombudsman’s guidance on remedies;
3. provide evidence the Council has completed the service improvements identified in paragraph 44 a) and 44 b); and
4. remind relevant staff to ensure monitoring of EHC Plans takes place in line with the increases stated in EHC Plans.
51. The Council will provide us with evidence it has complied with the above actions.

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Decision

52. I have completed my investigation finding fault causing personal injustice. The Council has agreed to take actions to remedy the injustice and prevent reoccurrence of the faults.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman