Summary: Ms X complained about the Council’s handling of her child’s Education, Health and Care Plan. She says this impacted her child’s education, emotional wellbeing and caused financial strain. We find the Council at fault which caused injustice. The Council has agreed to apologise and make a payment to Ms X.

The complaint

1. Ms X complains about the Council’s handling of her child’s Education, Health and Care (EHC) Plan provision. Specifically, she complains that the Council:

1. Provided an substandard Education Psychology report;
2. Issued an incorrect EHC Plan; and
3. Delayed providing the correct provision set out in the EHC Plan.

2. Ms X says this impacted her child’s education, emotional wellbeing and caused her 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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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)
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)
8. 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.
9. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the Tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10)

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What I have and have not investigated

10. Ms X complains about the quality of an Educational Psychology report completed in 2022. She says this caused her to incur costs by commissioning a private report. As I have said above, the Ombudsman cannot investigate any matter which has been or could have been dealt with by a Tribunal, including any fees spent during the appeals process. In any case, this matter is also late. For these reasons, I will not investigate part a of the complaint.
11. Ms X appealed to the Tribunal in 2022. The Tribunal issued its decision in December 2023. The period we cannot investigate ends when the Tribunal comes to its decision, but we would also not usually consider the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments. The Council issued its finalised EHC Plan within the statutory timescale in January 2024. For this reason, I have considered both parts b and c of the complaint from January 2024.

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How I considered this complaint

12. I considered the information and documents provided by Ms X and the Council. Ms X and the Council had an opportunity to comment on a draft of this decision. I considered all comments received before making this final decision.
13. I also considered the relevant statutory guidance, and Council’s policy, as set out below.
14. 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 contents (part of the complaint)

15. 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. 
16. The EHC Plan is set out in sections. The following sections are appealable to Tribunal: 

• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person. 

17. The following EHC Plan sections are not appealable to Tribunal: 

• Section E: Outcomes sought for the child.
• Section K: Details of the information sources used in the needs assessment.

Provision (part c of the complaint)

18. 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)  
19. 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

20. Ms X’s child, B, has an EHC Plan.
21. In 2022, Ms X appealed the contents of B’s EHC Plan to the Tribunal. She requested changes to sections B, E, F and K.
22. In December 2023, the Tribunal issued its decision. It ordered some amendments to Section B and Section F of B’s EHC Plan.
23. After the Tribunal, Ms X asked the Council to also amend sections E and K. The Council declined Ms X’s request.
24. In January 2024, the Council issued its finalised EHC Plan. The Plan stated B should have fortnightly Speech and Language Therapy and four sessions of Occupational Therapy per term.
25. Ms X made a formal complaint.
26. In April, the Council issued its stage one complaint. It did not uphold her complaint. It told Ms X if the school had questions about the provision in B’s plans it should contact an Educational Psychologist for advice.
27. Ms X escalated her complaint to stage two.
28. In early September, B started fortnightly Speech and Language Therapy.
29. In mid-September, the Council issued its stage two complaint response. It accepted B did not have the Speech and Language Therapy provision or Occupational Therapy provision set out in their Plan from September 2023 to July 2024. In total, it offered her £2200 to remedy the lost provision and distress this caused.
30. In December, Ms X brought her complaint to the Ombudsman.
31. In April 2025, B started Occupational Therapy.

Analysis

EHC Plan contents (part b of the complaint)

32. The Tribunal Order dated December 2023 directed several changes to Section B, about B’s needs, and Section F, about the provision for B, in their EHC Plan. I am satisfied the finalised EHC Plan included these changes directed by the Tribunal.
33. Although the law does not provide a right of appeal to Tribunal about Section E, about the outcomes sought for a child, in practice it is linked to Section B and Section F. If a Tribunal makes changes to the provision in a Plan, it can make consequential amendments to the outcomes to fit the provision. The Tribunal considered Section B and Section F of B’s Plan and did not direct any consequential changes to Section E. I do not find fault with the Council’s decision making when it considered Ms X’s request to make further changes to Section E and therefore cannot question the outcome.
34. The Council explained its reasons for not amending Section K as requested by Ms X. This is in line with the Tribunal comments that B’s EHC Plan was already excessively long and the addition of old information was not helpful. I find no fault in the Council’s decision making and therefore cannot question the outcome.

Provision (part c of the complaint)

35. The Council upheld Ms X’s complaint that it did not provide B with two terms of Speech and Language Therapy. The Council offered Ms X £780 to remedy the two terms of lost Speech and Language Therapy provision. In considering the Ombudsman’s guidance on remedies, I consider this amount is appropriate. B’s Speech and Language Therapy began at the beginning of September, and I am satisfied no further financial remedy is required.
36. The Council upheld Ms X’s complaint that it did not provide B with two terms of Occupational Therapy until July 2024. It offered her £1080 to remedy these two terms of lost Occupational Therapy provision. The Council did not provide B with Occupational Therapy set out in their Plan until April 2025. This is a further two terms of lost provision. This is fault. To its credit, the Council has proposed a further payment of £1080 to remedy this. In considering the Ombudsman’s guidance on remedies, I consider this amount is appropriate.
37. The Council apologised and offered Ms X £100 to remedy the inconvenience caused to her by the lost provision. I consider the financial remedy was proportionate for the level of injustice caused. However, I consider the Council’s apology did not reflect the significance of the lost provision for B.

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Action

38. Within four weeks of my final decision, the Council has agreed to:
1. provide a written apology to Ms X for the impact to B by not providing B with the Speech and Language Therapy set out in their EHC Plan for two terms, and not providing B with the Occupational Therapy set out in their EHC Plan for four terms.
2. make a payment of £1080 to Ms X to remedy the two terms of lost Occupational Therapy provision between September 2024 and April 2025.
39. 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.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. I find fault causing injustice. The Council will apologise and make a payment to Ms X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman