Summary: Ms X complained the Council failed to put in place special educational provision in an Education, Health and Care Plan following a Tribunal decision. The Council has acknowledged Ms X’s child received virtually no education for a period of sixteen months. It is now belatedly taking steps to resolve this. The Council has agreed to make a symbolic payment and make service improvements.

The complaint

1. Ms X complains the Council failed to put in place special educational provision in Section F of her child’s Education, Health and Care Plan after a Tribunal decision in Autumn 2023.
2. Ms X says being without education has impacted her child’s mental health, they are withdrawn, rarely leave their bedroom and have stopped talking to everyone. It has also impacted on the wellbeing of the rest of the family.
3. Ms X wants the Council to improve its communication and put the education in place.

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The Ombudsman’s role and powers

4. 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)
5. 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)

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How I considered this complaint

6. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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 found

Relevant law and guidance

9. 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)  
10. The Council has a time limit within which it must carry out a Tribunal order. Where a Tribunal changes an EHC Plan, the Council must issue the final amended Plan within five weeks of the order.
11. In a judicial review case where a Council took over a year to secure provision after a Tribunal order the Court found the five-week period built into the statutory scheme is to allow preparation for implementation and it expected the bulk of the programme at least to have been in place within that five week period (BA v Nottinghamshire County Council [2021] EWHC 1348 (Admin)).
12. Councils must review EHC plans at least annually. Where a child receives provision under s.61 Children and Families Act 2014, the Council is responsible for holding the annual review meeting.

What happened

13. The Tribunal concluded in early September 2023 by consent order. The Council’s complaint documents indicate the final amended Plan was due in October. The Council did not issue the final EHC Plan until March.
14. The provision in the Plan was a bespoke education otherwise than at school (EOTAS) package under s.61 Children and Families Act 2014.
15. The Council has acknowledged in its response to Ms X’s complaint, and my enquiries, that it delayed issuing the final EHC Plan by several months and has failed to secure the educational provision. It accepts Ms X’s child has ‘accessed very little provision’ since the Tribunal order. It cites staffing issues as an explanation.
16. The Council says some attempts to put provision in place were not possible because Ms X’s child would not leave their bedroom and could not travel to a therapy centre. Ms X says this situation escalated because the delay in starting provision led to a deterioration in her child’s mental health.
17. The Council says Ms X’s child accessed two hours of tuition in early 2024, but the tutor withdrew on the basis Ms X’s child could not manage the sessions. It says the tuition company did not share this information with the Council until the Council followed up in Spring 2024. The Council acknowledges it does not appear to have queried the tutor’s decision or followed this up, although funding for tuition remained in place until Summer 2024.
18. Mentoring was sought in early 2024, but the company approached had a waiting list. The company was contacted again in late Spring / early Summer, but the Council accepts it did not follow this up again until Ms X chased it in Autumn 2024. Ms X’s child has now accessed five mentoring sessions (one hour per week). The Council says it offered to increase these in February 2025, but Ms X says her child needs more time as they are just getting used to the sessions.
19. Another mentoring provider with a gaming focus was approached in early 2024 and was able to assist, but there was delay by the Council in providing a referral form. The Council acknowledges it then failed to follow this up. This has now been progressed in February 2025 and funding for a six-week trial has been submitted to the Council’s panel.
20. No speech or occupational therapy has been provided. Providers were approached in January and October 2024, but as Ms X’s child could not travel to therapy centres no arrangements were made.
21. There is evidence some of the contact with the providers in Spring 2024 was by Ms X who made her own enquiries about availability; providers told her they had not heard from the Council.
22. The Council told me there is no record of an annual review since Autumn 2023 or any meetings with Ms X. It told me it would chase the school about the annual review, but my understanding from the EHC Plan is that there is no named school, only an EOTAS package.
23. In response to Ms X’s complaint, the Council made the following offer to resolve the complaint in Summer 2024:
• A £500 symbolic payment to Ms X’s child to acknowledge the anxiety and distress caused.
• A £500 symbolic payment to Ms X to recognise the frustration and uncertainty caused by the delays.
• £6000 payment to recognise the loss of education from October 2023 to end July 2024 (2.5 terms).
24. Ms X declined the offer because the provision was still not in place. She wanted this to happen without, in her words, having to wait another year and be chasing the case officer every week.
25. I asked the Council how it ensures provision in EHC plans is secured and what oversight is in place to prevent drift. It told me cases are typically monitored and discussed at supervisions with greater focus on complex cases or where children are out of education. It set up a new Alternative Provision Team in Summer 2024. It is apparent the Alternative Placement Team did become involved in October 2024, with new referrals being sent out, but provision only started in 2025.

Analysis

26. The Council failed to issue the amended final EHC Plan after the Tribunal order. This should have happened within five weeks and took six months. This was fault.
27. The Council failed to provide the special educational provision in the EHC Plan. Almost no provision was made between October 2023 and February 2025. This is fault.
28. Where we find fault that has caused injustice, we seek to put the person back in the situation they would have been in but for the fault. Where this is not possible, we may recommend a symbolic payment to acknowledge the injustice caused.
29. Where fault has resulted in a loss of educational provision, we will usually recommend a symbolic payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child's special educational needs;
• any educational provision that was made during the period; and
• whether additional provision can now remedy some of the loss.
30. The Council has offered payments to acknowledge the injustice and the impact of lost education in line with the top of the range of our guidance for 2.5 terms, to the end of July 2024. This is an appropriate financial remedy. However, there has been continuing injustice after the Council’s complaint response for a further 1.5 terms (to February 2025 half-term), so an additional payment is merited.
31. What Ms X wants is for the situation to be resolved. The Council has taken recent steps to secure provision and must continue to do so and keep the provision under review while being sensitive to Ms X’s child’s need to build up provision slowly. The Council has provided me with an alternative provision audit, this is a useful document which should form the basis of future reviews and supervision.
32. The annual review is overdue, and it is the Council’s responsibility to hold the review meeting. The Council should also consider if any additional support is available to support the family or, if additional or more specialist support is required, given the deterioration in Ms X’s child’s mental health and difficulty leaving the home.

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Agreed Action

Within four weeks of my final decision:

33. The Council has agreed to put in place oversight measures to ensure Ms X’s child’s provision is secured, with regular reviews and liaison with tutors / mentors and Ms X, so provision can be increased when possible. The Council will provide an update to Ms X at least every four weeks.
34. The Council will arrange a review meeting.
35. The Council will signpost Ms X to other types of support for the family that may be available, for example child in need and parent carer needs assessments.
36. The Council will pay Ms X the £7000 it previously offered which includes loss of education up to July 2024.
37. The Council will pay Ms X, on behalf of her child, £3600 for the loss of education from September 2024 to February 2025.
38. We have upheld a similar complaint recently about failure to secure provision in response to which the Council has agreed to develop an action plan to prevent future failings. I do not therefore need to repeat this recommendation.
39. The Council will provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman