Summary: Ms B complained the Council failed to provide her child the provision detailed in their Education, Health and Care Plan. We find the Council at fault for failing to provide the special educational provision detailed in the Education, Health and Care Plan. This has caused Ms B distress, frustration and uncertainty. The Council has agreed to apologise, make a symbolic payment, consider reimbursement of Ms B’s costs and make service improvements.

The complaint

1. Ms B complained the Council failed to provide the special education provision set out in section F of her child’s Education, Health and Care Plan. Ms B told us the lack of support has set her child, X, back academically and has impacted his mental health and well-being. Ms B also told us the family have been impacted, she has spent a lot of time chasing the Council for support and she has only recently returned to work part-time. Ms B would like the Council to reimburse the cost of private tutoring and pay compensation for the stress-related health issues and inability to work caused by the faults.

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The Ombudsman’s role and powers

2. We make findings based on the balance of probabilities. We look at relevant evidence and decide what was more likely to have happened.
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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 s34H(1), as amended)
4. 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)
5. 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

6. I considered evidence provided by Ms B and the Council as well as relevant law, policy and guidance.
7. Ms B 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 found

Legal and administrative background

Education, Health and Care Plans

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 EHC Plan is set out in sections which includes section F, the special educational provision needed by the child or the young person. 
10. 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)  
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. 

Council complaint process

12. The Council has a published complaints procedure which sets out a two stage process.
13. At stage on the Council aims to provide a complaint response within ten working days.
14. At stage two the Council should provide a response within twenty working days.

What happened

15. The following is a summary of key events. It is not intended to be a detailed chronology.
16. X began attending a new primary school in June 2024. Prior to X’s admission, the school had received X’s EHC Plan and confirmed to the Council it could provide the special educational provision set out in section F.
17. In September 2024, following a meeting with the school, Ms B contacted the Council to complain the school was not providing the special educational provision set out in section F of X’s EHC Plan.
18. The Council responded to Ms B’s complaint and told her to contact the school to discuss her concerns. The Council also told Ms B the case officer had a meeting scheduled with the school the next day to discuss all EHCP’s at the school.
19. Ms B explained to the Council she had already raised her concerns with the school but, despite the school having had the Plan for a significant time, it had failed to provide section F provision.
20. The Council responded to Ms B again in October 2024. In this response the Council said the case officer was aware of Ms B’s concerns and was actively discussing these with the school. The Council told Ms B it was completing fortnightly meetings to support the school. The Council has not provided any evidence of its communication with the school or its consideration of its duty to secure X’s special educational provision.
21. In December 2024, Ms B submitted a further complaint about the failure to secure X’s section F provision. The Council responded and told Ms B it was aware of the situation and remained in regular contact with the school to resolve the situation.
22. Ms B requested the Council escalate the complaint to stage two of its process.
23. The Council issued a stage two complaint response in February 2025. In its response the Council said there was no evidence of fault or injustice on the part of the Council and Ms B’s complaint concerned the actions of the school. The Council told Ms B it had asked her to provide invoices for any costs she had incurred to fund section F provision. This would allow the Council to consider reimbursing these costs.

My findings

24. In its responses to Ms B, the Council was aware X’s section F provision was not being provided. The Council told Ms B it was in communication with the school to resolve the issue. In response to our enquiries the Council failed to provide any evidence which details its communication with the school and any action which was taken to address the concerns about X’s special educational provision. This is fault which has caused uncertainty and frustration to Ms B.
25. The Council has failed to provide evidence X received any section F provision between June 2024 and March 2025. This means X did not receive his section F provision for approximately 3 school terms. This is fault which has caused distress and frustration for Ms B. On the balance of probabilities, the failure to secure X’s section F provision has likely impacted the way in which X was able to access education.
26. The Council repeatedly signposted Ms B to the school instead of accepting it was responsible for securing the section F provision detailed in X’s Plan. The duty to secure section F provision remains with the Council, therefore it should have completed a full complaint investigation rather than direct Ms B to the school. This is fault which has caused distress, frustration and uncertainty for Ms B.

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Action

27. Within one month of the final decision the Council will:
• Apologise to Ms B for the faults identified. 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 its apology.
• Make a symbolic payment of £1500 to Ms B in recognition of the injustice caused by the faults identified.
• Allow Ms B another opportunity to provide invoices of the costs she has incurred to fund section F provision between June 2024 and March 2025. If Ms B provides these invoices the Council should consider whether costs should be reimbursed.
28. Within three months of the final decision the Council will:
• Issue a written reminder to its relevant SEND staff about the Council’s section 42 duty to secure special educational provision.
• Ensure it has a system in place to: 
1. 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; 
2. check the provision at least annually during the EHC review process; and 
3. quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman