Summary: Mrs X complained that the Council failed to secure the emotional support set out in her daughter Y’s Education, Health and Care (EHC) Plan. We have concluded our investigation with a finding of fault. The Council has accepted that emotional support provision specified in the EHC Plan was not delivered for a prolonged period. This caused avoidable distress to Y and placed additional burden on Mrs X. The Council has agreed to our recommendations.

The complaint

1. Mrs X complains the Council failed to secure the special educational provision set out in her daughter Y’s EHC Plan. She says Y did not receive CBT-informed emotional support or social skills provision during 2023 and 2024, despite this being clearly specified in Section F. Mrs X says she repeatedly raised concerns but the Council took no effective action to ensure the school implemented the Plan. She says this caused distress and disrupted Y’s education. Mrs X also paid privately for support during this period and wants the Council to reimburse her.

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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)
4. 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 have not investigated

5. Mrs X originally raised concerns that Y had not received a social skills support group, as required by her EHC Plan. The Council acknowledged that this provision was delivered only for six weeks from September 2023 and then stopped. However, during our investigation, Mrs X confirmed that she no longer wished to pursue this part of the complaint. I have therefore not investigated this issue further. This investigation focuses solely on the failure to provide CBT-informed emotional support as specified in Section F of Y’s EHC Plan.

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How I considered this complaint

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. I also spoke with Mrs X as part of my investigation.
7. Mrs X and the Council were offered opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant guidance and legislation

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 which include: 
• Section F: The special educational provision needed by the child or the young person. 
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. 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

11. Y has an Education, Health and Care (EHC) Plan. In August 2023, the Council issued a final EHC Plan naming School A in Section I. The Plan included provision for weekly emotional support informed by CBT approaches, to be delivered by a suitably trained member of staff such as an Emotional Literacy Support Assistant (ELSA), and for Y to attend a structured social skills group.
12. In early October 2023, Mrs X told the Council that the school had said it could not deliver the CBT-informed support. She requested a personal budget to make alternative arrangements. The Council provided information about how to request a personal budget and asked Mrs X to submit details of the proposed provider. Mrs X says she sent this information to the Council on 5 October 2023, but did not receive a response. The Council later received reassurance from the school that provision was in place, but it did not confirm this further or arrange alternative support.
13. In the absence of support arranged by the Council, Mrs X began privately commissioning weekly sessions with an autism support worker from 6 November 2023. These sessions continued until 2 May 2024 at a cost of £30 per week. This support was not funded or arranged by the Council.
14. There is no evidence that CBT-informed provision was in place between May 2024 and February 2025, when Mrs X brought her complaint to the Ombudsman. In its response to our enquiries, the Council said its brokerage team had sourced a provider and shared the details with Mrs X, asking her to contact them to arrange sessions. At the point of complaint, however, the sessions had not begun.
15. The Council has accepted that the emotional support provision set out in the EHC Plan was not in place during this period. It has apologised and said it will now commission the therapy or consider a personal budget.

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Analysis

Failure to secure emotional support provision

16. Y’s EHC Plan, issued in August 2023, required weekly CBT-informed emotional support. The Council was aware by early October 2023 that the school could not provide this provision. Mrs X requested a personal budget and followed up with the Council. Although the Council discussed this with her and raised the issue with the school, it relied on the school's assurances that provision was in place and took no further steps to verify or secure alternative support.
17. In reality, no CBT-informed provision arranged by the Council was ever delivered between August 2023 and at least February 2025. During that time, Mrs X privately arranged weekly sessions with an autism support worker between November 2023 and May 2024, at a cost of £30 per session for 25 weeks. Mrs X later explained that this support was not CBT-informed therapy and did not meet the specification in the EHC Plan, but was her final attempt to provide some help for Y when no support was available through the Council. We consider that, although not equivalent to the required provision, this support offered some mitigating benefit and was a reasonable step in the circumstances.
18. The Council had a statutory duty under Section 42 of the Children and Families Act 2014 to secure all the special educational provision specified in Section F of Y’s EHC Plan. That duty remained with the Council, even where the school named in the Plan faced capacity or delivery issues.
19. The Council has acknowledged that the provision was not delivered and has apologised. It confirmed in early 2025 that it had commissioned a provider, and that details were passed to Mrs X to arrange sessions. However, this did not remedy the delay that occurred.
20. On balance, the Council failed to secure the emotional support provision from August 2023 through to at least February 2025. This was fault. Y went without a key element of SEN provision for an extended period. Mrs X made reasonable efforts to alert the Council and later took steps to meet her child’s needs privately. The prolonged absence of support likely caused avoidable distress to Y, disrupted her access to education, and contributed to a loss of trust in professionals and reluctance to engage with later support.

Oversight and monitoring of EHCP delivery

21. Local authorities are responsible for ensuring the provision in an EHC Plan is secured, even where that provision is delivered by a school. Councils are expected to monitor implementation and respond to concerns where provision is not being delivered as specified.
22. The Council was informed in October 2023 that the school could not deliver part of the provision. Although it shared information about personal budgets and discussed an early review, it did not take further steps to arrange or commission the support. The Council later relied on the school’s assurance that provision was in place, but did not verify this or seek evidence. There is no indication that it monitored delivery in the following months.
23. The Council has acknowledged in its complaint response that staffing capacity issues at the school affected delivery of the Plan. It has also acknowledged that the provision was not in place for a prolonged period.
24. In the circumstances, the Council did not take reasonable steps to satisfy itself that the provision in Y’s Plan was being delivered or to respond effectively when it was not. That was fault.

Council response to complaint and remedy offered

25. The Council upheld the complaint and apologised. It confirmed that it would now commission the missing therapeutic support and continue to offer an emotional mentor at school. It also said it would consider a personal budget if Mrs X identified a suitable provider.
26. However, the Council has not offered to reimburse Mrs X for the therapy she privately commissioned, nor has it offered any symbolic payment to reflect the loss of provision or the impact on Y. In correspondence with Mrs X, it stated it was “unable to offer any financial remedy” but did not explain why.
27. Where a council has failed to secure provision in an EHC Plan, we would normally expect it to consider both reimbursement for reasonably incurred costs and a financial remedy to recognise loss of educational opportunity and distress. The Council’s failure to do so here is itself a further shortfall.

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Agreed action

28. The Council has accepted that it did not secure the CBT-informed emotional support specified in Y’s EHC Plan from its issue in August 2023 until at least February 2025. Mrs X privately arranged sessions from November 2023 to early May 2024, and the Council confirmed in its February 2025 correspondence that provision had not yet begun, although arrangements were underway.
29. We have therefore assessed missed provision between May 2024 (the end of the privately arranged sessions) and February 2025, a period of eight school months. In line with our guidance on remedies for missed SEN provision, we typically recommend a symbolic payment in the range of £200 to £600 per month, depending on the severity of the impact and any mitigating factors. A payment of £200 per month is appropriate in this case, reflecting the prolonged absence of support and the likely impact on Y’s wellbeing and school engagement, while recognising that arrangements were eventually made
30. To remedy injustice in this complaint, the Council will:
1. Apologise to Mrs X and Y for the identified fault and the impact these had. The apology should be in line with our published Guidance on Remedies.
2. Reimburse Mrs X £750 for the cost of privately arranged autism support sessions delivered between November 2023 and May 2024. Although this support did not meet the specification in the EHC Plan, it represented a reasonable attempt to meet Y’s needs in the absence of Council-arranged provision.
3. Pay Mrs X £1,600 to recognise the missed provision between May 2024 and February 2025 (eight months at £200 per month), in line with our guidance on missed SEN provision.
4. Pay £200 to reflect the impact on Y from the prolonged absence of support,
5. Pay £100 for the time and trouble caused to Mrs X in pursuing the complaint and arranging support herself.
6. The Council should also review what happened in this case, including the decision-making and oversight processes that led to a prolonged failure to secure the provision in Y’s EHC Plan. In particular, it should identify what steps could have been taken earlier to clarify that provision was not in place, and to act on Mrs X’s concerns. The Council should write to the Ombudsman to confirm what changes or service improvements it proposes to make as a result of this review.
31. The Council will complete action points a to e within one month of the Ombudsman’s final decision, and action point f within three months of the Ombudsman’s final decision. The Council will provide evidence of compliance to the Ombudsman.

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Decision

32. We have concluded our investigation with a finding of fault. The Council has accepted that emotional support provision specified in the EHC Plan was not delivered for a prolonged period. This caused avoidable distress to Y and placed additional burden on Mrs X. The Council has agreed to our recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman