Summary: Mrs X complained the Council failed to secure the provision in her son’s Education, Health and Care Plan. We find the Council at fault in the delay in providing the provision. The Council had already apologised, provided a personal budget and symbolic payment to Mrs X. The Council has agreed to make a further symbolic payment to Mrs X to provide a suitable remedy.

The complaint

1. The complainant, Mrs X complains the Council failed to secure the special educational provision in her son, W’s, Education, Health and Care Plan (EHCP). Mrs X says the Council delayed offering a suitable placement which meant W missed a college place from September 2024.
2. Mrs X says because of the Council’s fault, W missed his special educational provision between September 2024 and June 2025 and caused them both avoidable distress.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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.
7. 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.
8. 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(1), as amended)
9. 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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How I considered this complaint

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

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What I have and have not investigated

12. The law says we cannot normally investigate a complaint where the person has a right to appeal to a tribunal about the same matter. The Council issued a final EHCP in April 2024. Mrs X used her right to appeal.
13. 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)
14. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
15. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has happened.
16. I am satisfied the cause of the support in W’s EHCP not being delivered is not connected to Mrs X's appeal. The Council has provided details of the placements it consulted during the relevant period but none of these were able to offer a place for W.
17. Therefore, I have investigated the period from September 2024 to June 2025. I have ended my investigation in June 2025 which is the date of the Tribunal’s decision.

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What I found

Background

18. 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.
19. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision needed by the child or the young person. 
• Section G: Any health provision required because of their learning difficulties or disabilities which results in the child or young person having SEN.
• Section H1: The social care provision which must be made for the child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.
• Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. (Where relevant this includes adult social care provision to meet eligible needs under the Care Act 2014).
• Section I: The name and/or type of educational placement 

20. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

What happened

21. The following is a summary of key events. It does not include everything that happened.
22. W had an EHCP and was due to transition from his existing school placement to post-19 provision in September 2024. W was attending his existing school placement two days a week with a curriculum including maths, land based studies and practical skills. W attended various placements for the remaining three days a week as part of a supported internship.
23. Mrs X confirmed a preference for a particular named residential college at an annual review meeting in October 2023. The college wrote to Mrs X towards the end of February 2024 following a taster day to say it was able to meet W’s needs and offered a 52 week residential placement from September 2024. Mrs X provided this letter to the Council.
24. The Council wrote to Mrs X on 25 March 2024 to confirm it did not propose naming her preference of a residential college for W. The Council suggested a combination of alternative provision and supported living but noted the preference was more life skills based than an education aspiration and, if so, it would cease the plan if Mrs X agreed. Mrs X did not agree.
25. The Council sent a final amended EHCP for W on 8 April 2024. Section I named W’s existing placement until the end of July 2024 and from September 2024 onwards gave the type of provision as special but left the placement blank. Section F included speech and language therapy, occupational therapy, small group maths work and a waking day curriculum.
26. The Council has provided details of the consultations it made seeking a placement for W. The Council did not identify a placement.
27. Mrs X appealed the EHCP in June 2024. This appeal included the contents of sections B, C, D, F, G, H1, H2 and I. Mrs X was seeking a residential placement for 52 weeks a year at her preferred named special school for W from September 2024.
28. The Council subsequently agreed the named residential placement but on a 36-week term basis only.
29. Mrs X complained to the Council towards the end of December 2024 that it had not secured the education provision for W set out in section F of his EHCP. This included all the therapy listed in the EHCP, maths tuition and a waking day curriculum. Mrs X said delay by the Council meant W had missed out on a placement that could have started in September 2024. Mrs X wanted a residential placement provided from the start of 2025 and all W’s section F provision provided from that date including provision that had been missed.
30. The Council responded to Mrs X’s complaint in January 2025. The Council acknowledged there had been delays in arranging W’s provision and that his needs and safeguarding concerns had impacted the suitability and availability of education other than in a setting that could be put in place. The Council noted a number of suggestions and alternatives had been offered and where practical had put in support. The Council confirmed it would continue to work with Mrs X and W to increase this and look at backdating funding for provision where this was possible. The Council explained it had noted Mrs X’s preference for a residential placement away from home for W but that it considered other options had not been fully explored. The Council explained it held an annual review and commissioned educational psychology advice to help inform its decision making and the education outcomes W would be able to achieve and if education remained the most suitable pathway. The Council stated that following this and further consultations with alternative settings it agreed to a term time only placement at the college that was Mrs X’s preference rather than the 52-week residential placement that she had requested. The Council said it was unfortunate that the college was unable to offer a place at that point but it had not made the Council aware the offer was time limited or had offered places to more learners than it could support. The Council suggested it had been exercising due diligence and could not anticipate the placement would not be available and did not uphold this element of the complaint. The Council apologised for the short delay in providing a response.
31. Mrs X sought to escalate her complaint towards the end of January. The Council provided a final response to Mrs X’s complaint towards the end of February. The Council upheld the complaint and acknowledged there had been delays in arranging provision for W. The Council apologised and set out the following recommendations:

• the service to consider a symbolic financial remedy to acknowledge the frustration and uncertainty caused by the delays in providing W’s provision

• the service to consider how best to support W in recognition of any missed provision from September to date as specified in his EHC Plan - this could be in the form or catch-up provision or a personal budget to enable Mrs X and W to source this

• the service to keep Mrs X updated in relation to the plan going forward to provide the provision specified in W’s plan

32. The Council paid Mrs X £300 towards the end of March. The Council had also agreed a 36 week placement at the residential college although it was noted Mrs X would be seeking 52-week placement at the appeal. The Council also agreed a personal budget. This was subsequently amended to include retrospective OT provision as part of the Tribunal Order.
33. The Council agreed a personal budget of £23,460 on 11 March 2025 to fulfil all elements of W’s Plan (which was £1,564 per week for 15 weeks ie the remainder of the academic year). This was not available to Mrs X until April 2025. This was for:

• 4 hours per week of 1:1 functional literacy tuition, delivered by a suitably qualified teacher with experience in teaching pupils with ASD.
• 4 hours per week of 1:1 functional numeracy tuition, delivered by a suitably qualified teacher with experience in teaching pupils with ASD.
• 8 hours per week of PA support to supervise tuition
• 20 hours per week of 1:1 PA support (Monday-Friday), including accompanying W to his existing volunteering placements
• Regular input and coordination from a Multi-Disciplinary Team (MDT), including:
• An Educational Psychologist
• A Speech and Language Therapist
• An Occupational Therapist
• Half-termly MDT meetings lasting approximately 1 hour to review W’s progress, adapt strategies, and ensure coordinated support.

34. The Tribunal issued its decision in June 2025 which confirmed a 52-week placement for W from September 2025. The Tribunal did not consider it was necessary for W to have a tuition package before starting the placement in September given the support and personal budget already allocated.
35. In its response to the Ombudsman, the Council explained it had tried to put in place both mentoring and tuition for W during the period from September 2024 and provided details of these efforts. However, the providers identified had staffing issues which meant they were unable to supply personnel in line with the quotes that had been submitted and agreed. Online tuition had been available but W was not able to engage with this. A block of OT provision had been put in place.

My consideration

36. 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.
37. The Council has already acknowledged in its complaint correspondence that there were delays in arranging the provision set out in W’s Plan. I acknowledge the staff shortages which affected the Council’s commissioning of some of the provision; however the duty is clear and the Council failed to meet this. This is fault in the form of service failure (see Paragraph 4).
38. I have noted there was a personal budget in place for the period April to June 2025. This was a relatively short period in which to arrange the provision and use the agreed budget. Mrs X has advised she was not able to use all the funds within the proscribed period. It also does not address the period September 2024 to March 2025. I have noted there was online maths tuition available but W was not able to engage with this but did receive some OT support. The Council has also paid Mrs X £300 to acknowledge the frustration and uncertainty caused by the delays in providing W’s provision. Taking all the circumstances into account, I consider a further remedy is required.
39. We have made recent decisions identifying similar fault where service improvement recommendations have already been made. These need time to embed so it is not necessary to make further such recommendations.

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Action

40. The Council will make a symbolic payment to Mrs X of £600 within one month of my final decision to acknowledge the delay in providing W’s EHCP provision between September 2024 and June 2025.
41. The Council should provide us with evidence it has complied with the above action.

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Decision

42. I find fault causing injustice. The Council has agreed action to remedy injustice.

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Investigator's decision on behalf of the Ombudsman