Summary: Miss X complained that the Council had not provided the education set out in her child’s Education Health and Care Plan. She says this impacted her child’s education and emotional wellbeing. She says it also caused her distress and financial strain. The Ombudsman finds the Council at fault which caused injustice. The Council has agreed to apologise and make a payment to Miss X.

The complaint

1. Miss X complains about the Council’s handling of her child’s Education Health and Care Plan. Specifically, she complains the Council:

1. Has not provided the education as set out in her child’s EHC Plan since 2021; and
2. Named an unsuitable placement in the EHC Plan.

2. Miss X says this has impacted her child’s emotional wellbeing and education. She says it has also caused her distress and financial strain.

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The Ombudsman’s role and powers

3. 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)
4. 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.
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)

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What I have and have not investigated

8. Miss X complains the Council has not consistently provided suitable education since 2021. Miss X complained to us in November 2024. As I have said above, we cannot investigate late complaints unless there are good reasons. In this case, I have decided there are no good reasons to exercise our discretion and look back further than November 2023.
9. As I have said above, we also cannot investigate matters which have been considered by the Tribunal. In this case, the Tribunal was ongoing until it issued its order in December 2023. The Council issued its finalised EHC Plan in January 2024. Therefore, I have investigated part a of the complaint from January 2024.
10. The placement named in an EHC Plan is appealable to the Tribunal. As stated above, we cannot investigate matters which are appealable to the Tribunal. For this reason, I have not investigated part b of the complaint.

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How I considered this complaint

11. I considered the information and documents provided by Miss X and the Council. Miss X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
12. I also considered the relevant statutory guidance, and Council’s policy, as set out below.
13. 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

What should have happened

EHC Plan provision (part a of the complaint)

14. 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. 
15. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

16. 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)  
17. 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.

What happened

18. B has an EHC Plan. Miss X appealed the provision and placement in B’s Plan to the Tribunal.
19. In mid-December 2023, the Tribunal directed the Council to provide B with an Education Other Than at School (EOTAS) package.
20. In mid-January 2024, the Council issued B’s EHC Plan. It detailed monthly sensory Occupational Therapy sessions and the following weekly provision:
• Three hours of one-to-one in person English and maths tuition
• One hour of small group art tuition
• One hour of small group music tuition
• One hour of sport coaching
• One hour of physical education with a personal trainer
• One to eight hours additional one-to-one tuition working towards other qualifications as decided by B.
• Ten hours of one-to-one in person mentoring
• Two hours of online mentoring
• One hour of therapeutic support
21. Miss X paid for private tuition for B.
22. In mid-January, B’s sport coaching, physical education and online mentoring provision began.
23. In late February, B’s English and maths tuition provision began. Miss X stopped paying for private tuition.
24. In mid-March, B’s music tuition provision began.
25. In late March, the Council apologised to Miss X for its delay providing the provision in B’s EHC Plan. It told her it was still working to arrange the full provision. It partially upheld her complaint because it said it had provided B with interim education in the meantime. It reimbursed Miss X for costs she had incurred paying for B’s private tuition between January and February.
26. In late May, B’s art tuition and in person mentoring provision began.
27. In early September, B’s additional one-to-one tuition working towards other qualifications began.
28. In late September, B’s sensory Occupational Therapy provision began.

Analysis

29. The Council accepts it delayed providing the provision set out in B’s EHC Plan. It did not provide B’s full provision until September 2024. This is eight months after it issued B’s EHC Plan. This delay is fault. The delay caused B to miss out on two months of music lessons and four months of art lessons and mentoring. B also missed out on eight sessions of Occupational Therapy. This caused B injustice.
30. Miss X also paid for some provision for B until February. This means that B fortunately did not miss out on all provision during this time and therefore the injustice is limited. The Council has also repaid Miss X for the costs she incurred.
31. The Council apologised to Miss X and B in its complaint response letter in March 2024. I am not satisfied this apology remedies the avoidable and unnecessary uncertainty caused to them by its eight-month delay.

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Action

32. Within four weeks of my final decision, the Council has agreed to:
1. provide a written apology to B for its eight-month delay providing the provision in their EHC Plan and the impact this had on their education and wellbeing.
2. provide a written apology to Miss X for the unnecessary and avoidable uncertainty caused to her by its eight-month delay providing B with the provision in their EHC Plan.
3. make a payment of £1900 to remedy the two terms of lost provision for B. I considered our published guidance on remedies and B’s individual circumstances. I considered the timing which was during a year which was less significant in terms of B’s education, and that B did receive some provision during this time. I consider this amount is appropriate and proportionate to the level of injustice caused.
33. 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.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. I find fault causing injustice. The Council will apologise and make a payment to Miss X to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman