Summary: Mrs B complained the Council failed to follow the correct process following a Tribunal order and it has failed to provide the correct support as detailed in her son’s Education, Health and Care Plan. We found the Council at fault for a delay in providing the special educational provision set out in the Education, Health and Care Plan. This caused distress and frustration. The Council has agreed to apologise and make a symbolic payment to remedy the injustice caused.

The complaint

1. Mrs B complained the Council failed to follow the correct process following a Tribunal order and it has failed to provide the correct support as detailed in her son, X’s, Education, Health and Care Plan. This includes access to a suitable laptop, gym membership, a mentor and travel. Mrs B says the Council’s failure to provide the correct support jeopardises her son’s education and burdens her family emotionally and financially. Mrs B would like the Council to comply with the Tribunal order and provide the necessary provision.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal… such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

7. I have not investigated the Council’s decision to appeal the Tribunal order. The law prevents us from investigating matters which fall to be decided by the Tribunal. The Tribunal considered the Council’s appeal and refused it.

Back to top

How I considered this complaint

8. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
9. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Legal and administrative background

EHC Plans

10. 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. 
11. 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)  
12. 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. 

13. 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.

Tribunal orders

14. Where the Tribunal issues an order which requires the local authority to amend the special educational provision specified in an EHC Plan, the local authority must issue the amended Plan within 5 weeks of the order being made (Special Educational Needs and Disability Regulations 44(2)(e)).

What happened

15. In July 2024, following an appeal against sections B, F and I of the EHC Plan, the Tribunal issued an order which told the Council it must amend Section F of the Plan.
16. The order set out the following provision should be added to section F:
• Access to a gym where X can build a relationship with staff and feel safe enough to ask questions.
• A laptop to support with reading, writing and organisational skills. The laptop should have software to support X’s needs.
• X should receive weekly support from an external mentor to support with issues such as transition to college.
• X should have bus transport to attend college.
17. The Council appealed the Tribunal order but was not successful. The Council provided Mrs B with an amended draft plan and asked for her comments to be provided the following week. The Council then issued the final amended EHC Plan at the end of August 2024. This is within the 5 week timeframe.
18. The Council considered two options for a suitable gym membership for X. The first was a private gym, which was X’s preference, and the second was a Council gym. The Council determined the Council gym membership could meet X’s needs and was a more efficient use of public funds. It provided a direct payment to Mrs B to secure the gym membership.
19. In September 2024 the Council provided X with a laptop. Mrs B raised concerns about the size of the laptop. In October 2024 a specialist teacher confirmed the laptop was not suitable for X’s needs. The Council took action to secure a suitable laptop after receiving an update from the specialist teacher. The Council provided a different laptop in November 2024 which the specialist teacher confirmed was suitable.
20. The Council took steps to secure an external mentor in August 2024 however it was unsuccessful due to the preferred providers having limited capacity. External mentoring did not start until April 2025.
21. The Council confirmed arrangements for X to use the bus to attend college from the beginning of September. The Council also agreed to provide a taxi to transport X to his work placement. The Council attempted to secure a taxi to transport X to his work placement, but it was unsuccessful. In November 2024 Mrs B agreed to accept a fuel allowance from the Council to transport X to his work placement.

My findings

22. The Council issued the final amended EHC Plan within the five week timeframe set out in the SEND Regulations. The Council did not allow Mrs B 15 days to review the amended draft Plan, however, as the amendments had been decided by Tribunal I do not consider this caused X or Mrs B significant injustice.
23. There is no fault in the Council’s consideration of a suitable gym membership. There is nothing in the Tribunal order which says X must choose the gym he attends. I have considered the steps the organisation took to consider the issue, and the information it took account of when deciding to provide a gym membership. There is no fault in how it took the decision, therefore I cannot question whether that decision was right or wrong.
24. The Council delayed in providing a suitable laptop for X. There was an approximately three month delay in a suitable laptop being provided. This caused distress and frustration for X and Mrs B.
25. There was a delay of approximately 8 months in the Council securing an external mentor. This is fault which caused X and Mrs B distress, frustration and uncertainty. It also meant X did not have the mentor support in place to support with his transition to college.
26. There was a delay of approximately two months in the Council reaching an arrangement for X’s transport to his work placement. This is fault which caused X and Mrs B distress, frustration and uncertainty.

Back to top

Action

27. Within one month of the final decision the Council will:
• Apologise to X and Mrs B for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
• Make a symbolic payment of £800 to X in recognition of the delay in providing access to a suitable laptop, external mentor and transport.
• Make a symbolic payment of £250 to Mrs B in recognition of the time and trouble she has spent pursuing the provision for X.
28. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

29. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman