Summary: Ms X complains the Council failed to check the School was providing section F provisions in her daughters Education Health and Care Plan. She also said the Council did not stick to legal timeframes. The Council is at fault for failing to check the section F provisions were in place. This has caused Ms X’s daughter to miss educational provision and caused Ms X distress, time and trouble. The Council agreed to a package of remedies.

The complaint

1. Ms X complained the Council failed to check if the School was providing the provisions in section F in her daughters Education Health and Care (EHC) Plan and failed to act when she told it the School was not providing this. Ms X also complained the Council did not stick to legal timeframes during the EHC assessment and planning process. This has caused distress to Ms X, her daughter (D) and the whole family.

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The Ombudsman’s role and powers

2. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
3. 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.
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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What I have and have not investigated

6. I have only investigated the actions of the Council. I have not investigated the actions of the School, which is outside the Ombudsman’s jurisdiction.
7. I have only investigated the Councils handling of the assessment and review of the EHC Plan and Ms X’s complaint about the provision of Section F. I have not investigated the content of the Plan itself. If Ms X is not happy with this, she has a right of appeal to the Tribunal.

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How I considered this complaint

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

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What I found

The Education Health and Care (EHC) Plan 

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 EHC Plan is set out in sections which include section F: The special educational provision needed by the child or the young person. 

Maintaining the EHC Plan

12. 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)  
13. 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. 

Reviewing EHC Plans

14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
15. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

What happened

16. I have summarised below the key events; this is not intended to be a detailed account.
17. The original EHC Plan is from July 2015, version two is from February 2021 and version three is from August 2022.
18. The School held the Annual Review meeting in the middle of May 2023 and issued the report in the middle of June. The record shows the School did not raise any issues and recommended the EHC Plan was maintained.
19. Ms X told me her daughters behaviour started to decline in the new academic year (September 2023 onwards). She said she originally thought this was because the work was getting harder. She said she later found this was because D was not receiving the section F provision within her EHC Plan at School.
20. In November 2023, Ms X said she emailed the School and said D was not receiving the provisions outlined in section F of her EHC Plan. She said the School did not respond to her email.
21. In December 2023, Ms X raised concerns with the Council informally. She explained she had already complained to the School but it had not responded. Ms X said her daughter should have one to one provision in Maths and English, reading with an overlay ruler and pre-teaching as part of her section F provision. Ms X said D was not receiving this. Ms X told me her daughter was attending school full time but could not access education because of the lack of support. The Council told me this was the first time it became aware of Ms X’s concerns.
22. The Council emailed the School and relayed what Ms X said about her daughter not receiving the section F provision and suggested the School meets with Ms X. The School disagreed with Ms X’s comments. It confirmed it had already arranged a meeting with Ms X the following day. Ms X contacted the Council after the meeting, it was clear she was not satisfied with the Schools response. The Council referred Ms X back to the School and took no further action at this stage.
23. The School held an Annual Review meeting at the end of April 2024 and completed the Annual Review report at the end of May. In the parents views section, Ms X has scored her daughter low (between one and two out of five) on the multiple choice questions which included how well she has coped with school, how well she can complete class work and how effective she is using the support and provisions. Ms X said D received no teaching assistant support in lessons. Under the heading ‘any other discussions / comments generated from the review’ it refers to Ms X’s formal complaint and says she is ‘very angry about the funding and lack of interventions and TA (teaching assistant) support’. The recommendation following the Annual Review meeting was to maintain the EHC Plan. The headteachers summary said they were pleased D was making academic progress and recognised Ms X had made a formal complaint about the provision and intervention her daughter had received.
24. Around the same time, the School issued its final complaint response. It condensed Ms X’s complaint into three allegations. These were:
• The School is not adhering to the provisions outlined in the EHC Plan.
• The School has made changes to D’s provision without communicating or consulting and the provision is not appropriate, accessed or reviewed.
• The School promised to refer D to the Educational Psychologist but has not commissioned this.

The complaint response upheld all three allegations.

25. Following receipt of the Annual Review report and complaint response, Ms X said she had ‘reached the end of her tether’ and contacted the Council by email and telephone asking for details about the formal complaints process.
26. Ms X began home educating her daughter in September 2024.
27. At the end of October 2024, the Council sent Ms X a copy of an amended draft EHC Plan which reflected the change to home education. It sent the final version to Ms X in mid-November 2024.
28. The Council has completed an Annual Review in early June 2025.

The complaint

29. Ms X formally complained to the Council at the beginning of July 2024. There were several parts to her complaint, summarised below with the Councils response.
30. The Council responded at the end of July. Under the heading ‘background’, the investigating officer said they had not seen the School’s complaint report but understood it ‘…was found to have not carried out the provision and support which they detailed in the annual review documents.’
31. In response to Ms X saying the Council had not taken enforcement action against the School for failing to provide the Section F provisions, it explained as the annual review paperwork said the provision was in place, it has no jurisdiction to enforce. It said the only way to do this would be for the school to do an interim annual review and say it cannot meet need. The Council said it cannot make any findings because the complaint is about an academy, against which it has no statutory duty to enforce.
32. Ms X complained her daughter was still without funded provisions for section F of her EHC Plan. In the Councils response it said it understood Ms X wanted to home educate her daughter and could apply for a personal budget to help fund this, it gave a link to the internet for further information. The letter also explained if Ms X wanted her daughter to re-enter education, it would support this. The Council did not uphold this part of Ms X’s complaint.
33. The Council accepted there was a delay issuing the report following the annual review. It explained it had chased the School for the documents when they were two weeks overdue. It did not uphold this part of her complaint.
34. The Council partly upheld Ms X’s complaint about communication being unclear and inconsistent. This was about the ‘tell us once’ approach where a different officer had responded to Ms X than promised.
35. The complaint response partly upheld parts of Ms X’s complaint that were the responsibility of the Council. It made several recommendations which included:
• Publicising information about how a parent can contact the Council.
• A new form which makes communication with parents clearer.
• Offered informal mediation to understand the barriers Ms X faces securing education for her daughter.
36. It said many parts of the complaint fell outside its justification and the School should address these.
37. In the middle of November, Ms X complained to the Ombudsman. She said the Council failed to ensure her daughter received all the provisions in Section F of the EHC Plan and it had not kept to the statutory timeframes.

Analysis

Delay in the annual review and EHC planning process

38. The Council should make a decision to maintain, amend or cease the EHC Plan within four weeks of the Annual Review meeting and 12 months of the last Annual Review. The School held the Annual Review meeting in the middle of May 2023 and issued the report in the middle of June, the Council issued its decision to maintain the EHC Plan at the end of June. While the Council made the decision within a year of the previous review, there was a delay of over two weeks issuing the decision following the meeting. This is fault. In response to my enquiries, the Council said it upholds this part of Ms X’s complaint and apologises.

Section F provision – checking provision in place and responding to Ms X’s concerns

39. As set out above, the council has a non-delegable duty to secure the special educational provision (Section F) in an EHC Plan. The Council must check the provision is in place during the annual review and look into complaints the provision is not in place.
40. The Council contacted the School when it received Ms X’s informal complaint in December 2023, this is what I would expect. The Council accepted the Schools response that section F provision was in place. It did not ask for evidence and relied on what the School told it. I would expect the Council to have asked the School for evidence that it was providing Section F provision after Ms X raised concerns. It could have attended the meeting with Ms X and the School to listen to her concerns first hand. Its failure to do so is fault. In response to my enquiries, the Council said while it ‘…did immediately take purposeful action to investigate the concerns raised in relation to section F provision, the investigation could have been more robust to include further follow up to initial enquiries.’ It said it partly upholds this part of Ms X’s complaint. I consider the Council should have done more at this stage to look into Ms X’s concerns.
41. The Annual Review report in May 2024 included Ms X’s concerns that her daughter was not receiving teaching assistant support and recognised she was angry about the funding and lack of interventions. The Ombudsman expects the Council to use the Annual Review to check the section F provision is in place and look into any concerns. It did not do so in this case, it is at fault.
42. The Council was aware the School had done its own complaint investigation and referred to it within its own complaint response in July 2024. It said it had not asked for or read the complaint response but accepted the School had not fulfilled all the provisions. Considering the Council recognised the Schools complaint response contained information to say it had not fulfilled Section F provisions, I would expect it to seek a copy to understand what provision was missing and take remedial action if needed. Its failure to do so is fault.
43. Had the Council checked if the School were offering the section F provisions in the EHC Plan and made its own enquiries when Ms X first raised concerns in December 2023, following receipt of the Schools Annual Review report in May 2024 or when she made a formal complaint in July, it could have checked if these were in place and acted if not. On the balance of probabilities, it is likely the Council would have come to the same conclusion as the School and upheld Ms X’s complaint. The Council could then have taken action to secure the provision that was missing.

Summary of fault causing injustice

44. The Council is at fault for failing to check the section F provisions were in place when Ms X raised concerns in December 2023, at the annual review in May 2024 and when she made a formal complaint in July. Had it explored this further, it could have understood if the School was implementing the EHC Plan and acted if not. This has caused D to miss educational provision. It has also caused Ms X distress, time and trouble. This is their injustice.
45. The Council is also at fault for a slight delay in the assessment and review process which has caused uncertainty for Ms X and her daughter as they did not know what the EHC Plan would look like.

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Action

46. Within four weeks of the final decision, the Council should:
• Apologise to Ms X in writing and pay her £250 for distress, time and trouble.
• Pay Ms X for the benefit of D £3,000 for missed educational provision payment (I have referred to the Ombudsman’s guidance on remedies and calculated this at £1,500 per term for the winter and summer term in 2024).
• Remind staff the Council remains responsible for work delegated to other bodies. The responsibility for ensuring the provisions within the EHC Plan remain with the Council and are non-delegable.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I find fault causing injustice. The Council accepted my recommended actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman