Summary: The Council delayed securing the provision in Mr X’s child, Y’s, Education, Health and Care (EHC) Plan. This caused Y to miss out on the special educational needs provision in their EHC Plan and caused Mr X uncertainty and distress. The Council should apologise and make a payment to Mr X to recognise the impact of the missed provision.

The complaint

1. Mr X complained the Council failed to secure the special educational needs (SEN) provision and therapies in his child, Y’s, Education, Health and Care (EHC) Plan between October 2023 and December 2024. He says this caused his family distress and frustration. He wants the Council to apologise and compensate him for the impact of its failings.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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.
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)
6. 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 and have not investigated

7. 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)
8. There is a right of appeal to the SEND Tribunal (the Tribunal) against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
9. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
10. The same restrictions apply where someone had a right of appeal to the Tribunal, and it was reasonable for them to have used that right.
11. The Council issued an amended final EHC Plan for Y in December 2024, naming a new school from September 2025. Mr X had a right of appeal over the school named in the new EHC Plan. I consider it reasonable for Mr X to have used his right of appeal if he remained unhappy with the EHC Plan and have not investigated Y’s SEN provision from December 2024 onwards.

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How I considered this complaint

12. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
13. Mr X and the Council have 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

Education, Health and Care (EHC) Plans

14. 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.
15. 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)  
16. 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. 

Background

17. Mr X’s child Y has an Education, Health and Care (EHC) Plan and was due to transition to post-16 education in September 2023. The specialist school they attended, school A, did not provide post-16 education.
18. The Council issued an amended final EHC Plan in April 2023 naming a “specialist [further education] setting”. Mr X appealed to the Tribunal. Before the Tribunal hearing, the Council agreed to issue an amended plan naming school B. A consent order was filed with the Tribunal in October 2023. The Council said school B needed significant adaptations to accommodate Y. The Council agreed to extend Y’s provision at school A until December 2023 and Mr X agreed to a January 2024 start date at school B to allow the work to happen.
19. The Council issued a final amended plan naming school B on 18 October 2023. The Plan included a regular programme of Occupational Therapy (OT), Speech and Language Therapy (SALT), physiotherapy (PT) and 1:1 support to enable Y to access their curriculum.

What happened

20. In December 2023 the Council told Mr X the work to adapt school B had been significantly delayed and it would start consulting with alternative settings. It said Y would not be able to start at school B in January 2024.
21. In early January 2024 the Council spoke to school A about commissioning a package of OT, SALT and PT while Y was out of school. It chased school A for a response several times throughout January.
22. At the same time Mr X complained to the Council. He said Y was out of education and not receiving the provision in their EHC Plan. At the end of January, the Council told School A it would have to seek provision elsewhere if it did not respond to its request. School A responded saying it could provide OT and PT from March 2024, but not SALT. The Council immediately agreed to the OT and PT and began looking for alternative SALT providers.
23. In February 2024 the Council responded to Mr X’s complaint. It said it had told Mr X about the delays to the work at the school as soon as it became aware. It said it was actively seeking a tutor for Y, while Y’s therapies would be provided by school A. It apologised to Mr X.
24. Y started to receive 15 hours a week tutoring at home from 22 February 2024. The tutoring was delivered flexibly to work around Y’s care package and their needs. At the end of February, the Council identified a provider to deliver Y’s SALT provision. The provider said it could not start to deliver the provision until April 2024.
25. School A started to deliver Y’s OT and PT in March 2024. The Council provided Mr X with a list of all the settings it had consulted with over a placement for Y. In April 2024 Y’s SALT started. At the same time a solicitor acting on behalf of Mr X asked the Council to consider Mr X’s complaint at stage two of its complaint process. They said Mr X was unhappy with Y’s level of tuition and wanted tutoring to continue in the summer holidays. They said they wanted the Council to name a school for Y to start in September 2024.
26. The Council responded in May 2024. It said it had agreed flexible tutoring of 15 hours a week, and Y’s family had said this was too much at times. It confirmed the family could use any left-over hours in the summer holidays. It said it continued to consult with settings for September 2024.
27. The Council continued to consult with settings over the next few months, but none were able to accommodate Y. Y continued to receive tuition and their therapies. The Council held Y’s annual review on 25 September 2024. The review considered reports from Y’s tutor, and therapy providers. All reported Y was progressing well. Y’s tutor said Y would thrive in a school setting.
28. In October 2024 the Council issued a proposed amended plan based on Y attending a new specialist school. It began discussing a placement at school C with Mr X. School C was a specialist school for young people up to 19 years old and had indicated it could accommodate Y’s needs. The Council issued an amended final EHC Plan naming school C on 18 December 2024. Mr X complained to the Ombudsman.
29. In response to our enquiries the Council accepted it had failed to secure the provision in Y’s EHC Plan between January and February 2024.

My findings

30. In October 2023 the Council and Mr X agreed to name School B in Y’s EHC Plan, on the basis that Y would not be able to attend school B until January 2024, due to the adaptations required to school B. Between October 2023 and December 2023 Y continued to receive provision from school A. The Council was not at fault.
31. When it became clear Y would not be able to attend school B from January 2024, the Council immediately began seeking alternative providers to secure the provision in Y’s EHC Plan. While the Council acted immediately, it accepts it did not secure any of the provision in Y’s EHC Plan between January and February 2024, when it put tuition in place for Y. The records show while tuition was in place from February 2024, the Council also failed to secure the OT and PT in Y’s EHC Plan until March 2024, and failed to secure Y’s SALT provision until April 2024.
32. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. The delay in securing the provision in Y’s EHC Plan is fault (service failure), resulting in Y missing out on the provision in their EHC Plan and causing Mr X uncertainty and distress.
33. We typically recommend between £900 and £2400 per term in recognition of lost provision. The figure can be lower when considering any provision made during the period and whether additional provision can remedy some or all of the loss. Considering Y started receiving tuition from February 2024, and their therapies began in March, I have recommended £500 for the missed special educational provision, in line with our Guidance on Remedies.
34. Mr X complained Y continued to not receive the provision in their EHC Plan even once the Council had put in place tuition and secured Y’s OT, PT and SALT. While Y was not receiving their SEN provision at school, the evidence shows the Council secured the therapies in Y’s EHC Plan and put in place 1:1 tuition that was appropriate for Y’s needs and could be delivered flexibly around Y’s care. The reports from Y’s September 2024 annual review shows that while it would have been preferable for Y to attend school, she was engaging and progressing with the home tuition. On balance, I am satisfied the Council secured the provision in Y’s EHC Plan during this time. The Council was not at fault.

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Action

35. Within one month of the final decision, the Council has agreed to:
1. Apologise to Mr X for the delay in securing the provision in Y’s EHC Plan and the uncertainty and distress caused by the delay. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Mr X £500 to recognise the loss of one month’s SEN provision on Y, and the further delay implementing Y’s therapies.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I find fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman