Summary: We have found fault with the Council for failing to secure all the special educational need provision in Miss X’s son’s Education, Health and Care Plan. This caused him to miss out on the support he needed which affected his behaviour and attendance at school. The Council has agreed to apologise to Miss X and make a payment to remedy Miss X’s and her son’s injustice.

The complaint

1. Miss X complained the Council has not delivered the Special Educational Needs (SEN) provision set out in her son’s (Y’s) Educational, Health and Care (EHC) Plan. She said that Y is disengaging with school, and it has affected his mental health.

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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 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)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. 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

7. Miss X complained the Council has never delivered the SEN provision in Y’s EHC Plan. Y has had an EHC Plan since 2020. I cannot investigate late complaints, and I cannot see a reason why Miss X did not complain to us sooner.
8. Miss X brought her complaint to us in November 2024. I have investigated the period between November 2023 and November 2024. I have referred to dates outside this period, but this is for context purposes only.

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How I considered this complaint

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

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What I found

Law and guidance

EHC Plan

11. 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.

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)

What happened

15. Miss X’s son, Y has SEN. The Council issued his first EHC Plan in July 2020. The same year, Y started to attend a mainstream secondary school.
16. By December 2023, Y was struggling with his behaviour and was frequently in detention, excluded or his absence unauthorised. Miss X was in regular contact with the school to try and address Y’s attendance and general behaviour. She raised concerns that the school was not delivering the provision set out in Y’s EHC Plan or responding to communication from the Council.
17. In February 2024, Miss X contacted the Council and requested an emergency review of Y’s EHC Plan and a personal budget so she could fulfil Y’s SEN provision herself. She explained that Y was not receiving occupational therapy (OT), touch typing, social communication interventions or mentorship. Miss X said the school had acknowledged that the provisions were not being met but did not inform the Council.
18. The Council responded to Miss X’s requests. It agreed to set a date for an emergency review meeting to discuss her concerns and will take her request for a personal budget to panel.
19. In March, the Council held a meeting with Miss X, Y’s school and other professionals. The OT confirmed that Y was accessing support and was successfully engaging. The school requested clarity from the Council in terms of the mentoring provision. The Council agreed to amend Y’s EHC Plan following the annual review.
20. In September, the panel considered Miss X’s request for a personal budget. It declined Miss X’s request instead it increased the funding to Y’s school to use for additional tutoring.
21. Miss X brought her complaint to the Ombudsman in November 2024.

Update

22. The Council met with the school in December 2024. The school had not been using the additional funding for tutoring as agreed in September. In January 2025, the school confirmed that it would allocate extra hours (not used in the autumn term) for Y’s tuition to make up for the shortfall, during the spring term. In February 2025, the Council issued Y’s final amended EHC Plan.

My findings

23. Y did not receive all the provision set out in his EHC Plan. In response to my enquiries, the Council set out the required provision in Y’s EHC Plan and if/how it was delivered. From this information, I can see that the Council relied almost entirely on the school to secure Y’s SEN provision.
24. While the school may be the main deliverer of the SEN provision, it remains the Council’s legal responsibility. The Council has not demonstrated appropriate oversight in gathering information from the school to fulfil their legal duty.
25. Miss X raised her concerns about the missed SEN provision with the Council in December 2023. It took until January 2025 when the school confirmed it would allocate extra tuition hours to Y, for Y to receive the SEN provision he was entitled to.
26. I have found the Council at fault for failing to secure appropriate SEN provision for Y between December 2023 and January 2025. This equates to three school terms.
27. The Council has agreed to apologise to Miss X and pay her a financial remedy in recognition of the missed provision. Our guidance on remedies suggests that the level of financial remedy for missed SEN provision is likely to be lower than that for loss of educational provision. The Council agreed to pay Miss X £500 per term of missed provision. £1500 in total.

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Agreed action

28. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Miss X for failing to secure the SEN provision in Y’s EHC Plan.
2. Pay Miss X £1500 in recognition of the missed provision.
3. Send an email reminder to relevant staff reconfirming the Council's responsibility to secure SEN provision.
29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. I have found fault with the Council for failing to secure the SEN provision in Miss X’s son’s EHC Plan.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman