Summary: Mrs M complained the Council failed to secure the provision set out in her daughter’s education, health and care plan. The Council was at fault, and it has agreed to offer a financial remedy and formally apologise for this.

The complaint

1. I will refer to the complainant as Mrs M.
2. Mrs M complains the Council has failed to secure several aspects of the provision set out in the education, health and care (EHC) plan it issued for her daughter, W. She says this has had a negative impact on W’s academic performance, which will potentially affect her choices for college in future.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)

Back to top

How I considered this complaint

5. I considered evidence provided by Mrs M and the Council as well as relevant law, policy and guidance.
6. I also shared a draft copy of this decision with each party for their comments.

Back to top

What I found

Legal background

EHC plans

7. A child or young person with special educational needs may have an 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.
8. Councils have 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 a 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)  
9. 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. 

Mrs M’s complaint

10. The following will provide a summary of the key events relevant to this complaint. It is not intended to be an exhaustive chronology detailing everything that happened.
11. W is in Year 11 and has been diagnosed with anxiety. On 3 May 2024, the Council issued an EHC plan to support her, which included aspects of speech and language therapy (SALT) and occupational therapy (OT), alongside an emotional literacy support assistant (ELSA). Two days later Mrs M contacted W’s school to discuss implementing this provision.
12. During an exchange of emails with the school on 8 May, the school said it would take some time for it to make the necessary arrangements. The following day, the school contacted the Council to request additional funding for the provision, and on 21 May the Council agreed to the school’s request.
13. On 9 July Mrs M submitted a stage 1 complaint to the Council. She said the school was yet to implement a range of the provision set out in the EHC plan, including the SALT, OT and emotional literacy support, because it said it did not have staff with the relevant qualifications, or the means to recruit them. Mrs M explained that, while the school had training planned for staff, this would take many months to complete. However, she complained W had been entitled to this provision since the completion of her EHC plan.
14. The Council sought an update from the school, which it provided on 18 July. The school said it had now met all the requirements for provision except for the ELSA, but had offered an alternative while it trained a member of staff for this purpose.
15. The Council replied to Mrs M’s stage 1 complaint on 6 August. It said, given the school’s comments, it was satisfied it was properly implementing W’s EHC plan.
16. Mrs M escalated her complaint to stage 2 on 1 September. She denied the Council’s claim the school was implementing the EHC plan, highlighting, in particular, that the school had “confirmed they have not received from [the Council] the SALT or OT provision”. Mrs M said she and the school had agreed to implement W’s ELSA provision, by increasing her sessions with a provider she had already been seeing, but said the Council had not given the school the funding to outsource this.
17. The Council responded to the stage 2 complaint on 25 October. It acknowledged the SALT and OT provision was still outstanding, and explained this was because there was insufficient capacity to meet demand. It said the Council’s SEN service was continuing to work to secure this provision.
18. The Council also acknowledged its stage 1 response had been wrong to say the SALT and OT were in place, and that it should have addressed this properly during the stage 1 complaint. The Council offered Mrs M a remedy of £300 to acknowledge the impact of the lack of this provision.
19. Mrs M escalated her complaint to the Ombudsman on 29 October.
20. In April 2025, at the beginning of my investigation, Mrs M explained there were further delays with implementation, and she had eventually agreed with the Council to postpone the provision until after W had taken her GSCEs, to avoid putting additional burden on her at a difficult time.

Back to top

Analysis

21. As Mrs M noted in her complaint to the Council, W was entitled to receive the provision set out in her EHC plan as soon as the Council finalised it in May 2024.
22. From a practical standpoint, I recognise this does not mean W’s school would necessarily be in a position to implement every aspect of the plan immediately. This is highlighted by the fact the school had to apply to the Council for additional funding.
23. Either way, and as noted at paragraph 8, we would expect the Council to have taken steps to monitor the school’s compliance within a reasonable period of time.
24. And, in fact, I consider the Council did actually do so in this case – with approximately eight weeks passing between its approval of the school’s funding request on 21 May, and receiving the update from the school on 18 July (albeit I am conscious the Council’s contact with the school appears to have been prompted by Mrs M’s complaint).
25. Unfortunately the school’s response was quite inaccurate. It is difficult to understand how this came to be, but in the narrow sense, the Council was obviously not responsible for the school’s error. However, I do note the Council’s own criticism of its handling of Mrs M’s stage 1 complaint; and so it seems reasonable to conclude that, had the investigation been more thorough, the Council would have identified the error at the time.
26. Putting this criticism to one side, the date of the Council’s compliance check is significant here, because it was within days of the end of the 2023/24 academic year.
27. Taking these points together, therefore, I do not consider the Council was at fault for the fact the provision was not in place before the end of the year – it had approved the funding requested by the school, and was entitled to expect the school to implement the provision, as this was the school’s role. The Council carried out a compliance check within a reasonable period of time, and even if the school had responded accurately, there would not have been enough time to resolve this before the summer holiday.
28. However, and conversely, the Council did have time to effectively intervene, and ensure the provision was in place, by the start of the new academic year in September. This being so, I consider the Council is at fault because it had not secured the provision, as was its legal duty, by this point.
29. The provision was finally ready for implementation in January 2025. But, at this point, Mrs M asked the Council to postpone implementation until the beginning of the next academic year. This was because W would soon be taking her GSCEs, and Mrs M did not want to place an additional burden on her at this time.
30. Although this was Mrs M’s decision, it is arguable the ongoing lack of provision is still an injustice arising from the Council’s fault. This is because it was never the intention to wait until the 2025/26 academic year to implement it, and Mrs M only considers this necessary because of the delay in implementation.
31. On balance though, I do not consider I can find the Council at fault once it had made suitable arrangements in January. While I acknowledge Mrs M’s reasons for requesting a delay, this was still her prerogative, and so the continued delay in implementation is not due fault by the Council.
32. Our published guidance on remedies says:

“Where fault has resulted in a loss of educational provision, we will usually recommend a remedy 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 – full-time or part-time, without some or all of the specified support – that was made during the period; and
• whether additional provision can now remedy some or all of the loss.

“In addition to educational provision, additional remedies may also be required for injustice caused by fault in other provision such as missing OT and SALT. The level of financial remedy is likely to be lower than that for loss of educational provision and will depend on the level of provision missed and the impact of this on the child or young person.”

33. I note the Council has already offered to pay Mrs M £300 to recognise the impact of the delay on W. I do not know whether Mrs M has accepted this offer, but in accordance with our guidance, I consider this an appropriate remedy for a single term’s loss of provision.
34. Separately, I consider the Council should make a separate payment of £250 to Mrs M personally, to reflect her distress and frustration at its failure to secure provision for W. This brings the total remedy the Council should offer to £550.
35. For the avoidance of doubt, if Mrs M has accepted the £300 the Council has already offered, then it should discount this from what I have recommended.
36. Separately, the Council should also write a formal letter of apology to Mrs M and W, to reflect the impact of the delay in securing her provision.

Back to top

Action

37. Within one month of the date of my final decision, the Council has agreed to:

• offer to pay Mrs M £550, to reflect the impact of the loss of provision on W, and the distress and frustration she endured because of this. If Mrs M has accepted the £300 the Council has already offered, then it should instead offer to pay her £250; and
• write a formal letter of apology to Mrs M and W for the same reason. 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 I have recommended in my findings.

38. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

39. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman