Summary: The Council was at fault for failing to provide Mrs X’s child, Y with the special educational provision they were entitled to in their Education Health and Care (EHC) Plan. The Council has agreed to apologise and make a payment to recognise Y’s loss of education as well as the distress, frustration and uncertainty caused by this. The Council was also at fault for failing to provide Y with the education mentor it agreed. This did not cause Y an additional injustice as there was no education in place for the mentor to assist with.

The complaint

1. Mrs X complained the Council failed to provide Y with the following provision:
• An education mentor it had agreed to fund; and
• Online schooling between September 2024 and February 2025 as set out in their EHC Plan.
2. Mrs X says Y has missed out on a suitable education as a result.

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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. 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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What I have and have not investigated

6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6). Mrs X complained the Council did not provide Y with an educational placement for the 2023/2024 school year.
7. This matter has not been through the Council’s complaints procedure. It was reasonable for Mrs X to raise this with the Council in her complaint in December 2024. Therefore, I have not investigated this part of the complaint.
8. I have ended my investigation in early March 2025 which was when the Council issued its stage two response and Mrs X bought the complaint to us.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. 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 found

Relevant law and guidance

EHC Plan

11. 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.
12. 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).

Education Other Than at School (EOTAS)

13. For some children and young people, education in any setting would be inappropriate due to their special educational needs. This is referred to as EOTAS.
14. If the Council agrees it would be inappropriate for any required special educational provision to be delivered in a school, it can agree to arrange for it to be delivered somewhere else, for example at home. The Council must arrange and pay for that provision.

What happened

15. Mrs X has a child Y who has special educational needs and an EHC Plan in place. Y has a personal assistant to support with their access to the community.
16. In May 2024, the Council agreed that the personal assistant role would change to that of an education specialist support mentor with an increase in the rate of pay. It was changing the role specifically to support Y’s learning. The Council agreed it would be the same person in the role as they had already built a relationship with Y.
17. In September 2024, the Council issued Y’s Final amended EHC Plan following an annual review. This named an EOTAS package which included full time learning at an online school. The education specialist support mentor role was not specified in the EHC Plan.
18. In December 2024, Mrs X raised a stage one complaint saying that Y had received no education as the Council had still not approved the funding for the EOTAS package.
19. The Council issued a stage one complaint response in February 2025 upholding the complaint. It confirmed Y could start with the online schooling this month.
20. Mrs X requested the Council consider her complaint at stage two as Y had missed out on five months of education. She also said Y still didn’t have access to an education mentor which the Council had approved in 2024.
21. The Council issued a stage two complaint response upholding the complaint in early March 2025. It said it had agreed to fund the education mentor but the payments continued to be held up in the system. The Council said while it accepted the service was not good enough it could not provide financial compensation for the delay.
22. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us. Mrs X has since moved to another country so the Council is no longer responsible for Y’s educational provision.

My findings

Specialist education provision

23. Y had an EHC Plan in place and the Council had a duty to secure the special educational provision set out in the plan. The Council accepted Y did not receive the online schooling they were entitled to between September 2024 and February 2025 which was fault. As a result, Y went approximately a term and a half without an education and the provision set out in their EHC Plan. This caused Mrs X distress, frustration and uncertainty.

Education mentor

24. Mrs X complained the Council failed to change the personal assistant role to that of an education mentor to support Y with their learning. The Council agreed to the education mentor in May 2024 and it was still not in place by March 2025 when the Council issued the stage two response. This was a delay of 10 months which was fault. However, this did not cause Y an additional injustice as they were not receiving an education for the mentor to support with. I have already found fault with the Council for lack of education.
25. Whilst Y has not suffered a significant personal injustice from the delay, similar fault is likely to cause others an injustice in the future. Therefore I have made a service improvement recommendation to prevent future injustice from similar fault.

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Action

26. Within one month of the final decision, the Council has agreed to:
1. Apologise to Mrs X for the distress, frustration and uncertainty caused by Y’s missed provision. 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 I have recommended in my findings.
2. Pay Mrs X £200 for the distress, frustration and uncertainty caused to her by the Council’s failure to provide Y with their SEN provision.
3. Pay Mrs X £1500 to recognise Y’s missed provision between September 2024-May 2025.
4. Review this case to determine why the funding for the education mentor was delayed and share the learning from this with the relevant officers.
27. Within three months of the final decision, the Council has agreed to:
1. Create an action plan to address how it will improve checks on whether children are receiving special educational provision they are entitled to and take timely action to put this in place.
28. The Council should provide us with evidence it has complied with the above actions.

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Decision

29. 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