Summary: Ms X complained that the Council did not put in place all the special educational provision in her child’s Education, Health and Care Plan. We have found the Council was at fault for delaying putting in place the special educational provision. This meant Ms X’s child has not received the support they should have. To remedy the injustice caused the Council agreed to apologise, make a payment to Ms X and carry out a service improvement.

The complaint

1. Ms X complains the Council:
1. Delayed putting in place Autistic Spectrum Condition provision.
2. Delayed putting in place Occupational Therapy provision and did not provide her child with all the sessions they were entitled to.
3. Included a provider in her child’s Education, Health and Care Plan who could not deliver provision.
4. Delayed handing her complaint.

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The Ombudsman’s role and powers

2. 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)
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)

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What I have and have not investigated

4. I have not investigated complaint c). This is because we cannot decide what should be included in the content of an Education, Health and Care Plan. This is for the SEND Tribunal.

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How I considered this complaint

5. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
7. 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

Law and guidance

8. 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. 
9. 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)  
10. The SEND code of practice: 0 to 25 years says the provision should be in place from the date the final EHC Plan is issued. Where the provision is proposed by the council in a draft EHC Plan, the Council should be ready to secure that provision when the EHC Plan is finalised.
11. 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

12. Ms X’s child Y has special educational needs. The Council issued a final EHC Plan for Y in mid-April 2024. This included Occupational Therapy (OT) provision made up of 20 OT sessions per academic year. It also included provision related to Autistic Spectrum condition such as weekly social skills activities overseen by an autistic specialist teacher.
13. In May 2024, the Council received costing for the autistic spectrum condition provision.
14. In early July 2024, Ms X instructed solicitors who sent a letter before action to the Council as Y was not getting all their section F provision delivered.
15. In mid-July 2024, Ms X complained to the Council that it had not secured all the section F provision in Y’s EHC Plan. This included OT provision and Autistic Spectrum Condition provision.
16. The Council responded to Ms X’s complaint in mid-August 2024. The Council said it had set up funding with Y’s school to provide the provision in their EHC Plan.
17. Ms X asked the Council to consider her complaint at the next stage of its process on 12 September 2024. Ms X had not received a response to her complaint by December 2024, so she contacted the Ombudsman. After we contacted the Council it agreed to provide Ms X with a final complaint response by 3 January 2025.
18. On 31 January 2025, the Council sent Ms X its final response to her complaint. The Council said:
• It received costing for the Autistic Spectrum Condition provision in May 2024 but had to ask for this again in November 2024. The Council said Y’s school began receiving payments for this provision in December 2024 and included backdated provision. The Council said it upheld this part of Ms X’s complaint.
• It included the name of a provider in the EHC Plan as a suggested option to provide provision. The Council said once it made enquiries with this provider it told the Council it could not offer provision.
• It agreed to fund the 20 OT sessions in Y’s EHC Plan regardless of when they start. It did not uphold this part of the complaint.
• It apologised for the delay in complaint handling and offered Ms X £150 to recognise the inconvenience this caused.
19. Ms X remained dissatisfied and complained to the Ombudsman.

Analysis

20. The Council issued Y’s EHC Plan in mid-April 2024. At this stage it should have been ready to implement the provision in the EHC Plan. It took the Council until December 2024 to put in place the Autistic Spectrum Condition provision and until September 2024 to put in place the OT provision. This was fault.
21. From the complaint responses it appeared the Council initially had the costing information to put this provision in place but this was misplaced and it had to ask for this again several months later.
22. In relation to the Autistic Spectrum Condition provision the Council said it backdated this. From payment records this provision was only backdated to September 2024. Therefore Y did not receive this provision from April 2024 and has not had any make up provision to cover this period.
23. Y was supposed to receive 20 sessions of OT per academic year. While the Council funded this, albeit late, Y has only received 13 sessions of OT for the 2024/2025 academic year. In addition Y did not receive any OT sessions from April 2024 until the end of the 2024 school year. On balance I do not consider the Council knew Y was not getting fortnightly OT sessions as per their EHC Plan, before Ms X contacted it in June 2025.
24. While Ms X emailed the Council in November 2024 to explain three OT sessions had been missed, one session was cancelled by Ms X. At this time the Council had provided OT funding and a provider was in place. Therefore I am satisfied the Council was not aware the OT provision was not being fully implemented after providing the school with the funding to put this in place.
25. As I have found fault I need to consider what injustice this caused. Y has missed out on getting provision they were entitled to and received some provision late. I recognise the Council has backdated some of that provision but Y did not receive the Autistic Spectrum Condition provision and OT provision from April 2024 until the end of that school year. Ms X has also spent time pursuing the Council to put in place the provision in Y’s EHC Plan. This has caused her anxiety and frustration at knowing Y was not getting the support they should have been.
26. The Council was also at fault for how it handled Ms X’s complaint. It took the Council 25 working days to respond to Ms X’s complaint at stage one despite its complaints procedure saying it would respond within 15 working days. At stage two the Council had 20 working days to respond to Ms X’s complaint but it did not provide its response at stage two for 98 working days and only after Ms X contacted the Ombudsman.
27. These delays meant Ms X had to wait much longer than she should to progress her complaint with the Council and had to wait much longer to bring her complaint to the Ombudsman.
28. The Council did recognise in its complaint response its delays in complaint handling and offered Ms X £150 for the frustration she experienced. While this is welcomed, I do not consider it goes far enough given the significant length of the delays and the fact Ms X had to ask the Ombudsman to intervene to have her complaint progressed.

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Agreed Action

29. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Ms X for the delays putting in place provision. 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.
• Pay Ms X £250 to recognise the anxiety and frustration she experienced as a result of the delays by the Council putting in place the provision in her child’s EHC Plan.
• Pay Ms X £400, for the benefit of Y’s education, to acknowledge the period from April 2024 until the end of the school year that they did not receive OT and Autistic Spectrum Condition provision.
• Pay Ms X £250 to recognise the time and trouble she experienced as a result of the Council’s failures in complaint handling.
30. Within two months of my final decision the Council should carry out the following:
• Consider why there were delays putting in place some of the provision in the Education, Health and Care Plan and what changes it can make to prevent this from happening in future. The Council should report back to the Ombudsman with any improvements it intends to make.
31. The Council should provide us with evidence it has complied with the above actions.

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Decision

32. I find fault causing injustice. The Council agreed to the above actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman