Summary: The Council was at fault. It did not secure all the tuition set out in Mrs X’s child, Y’s, Education, Health and Care Plan over a nine-month period. The Council will apologise and make a symbolic payment to Mrs X for Y’s lost provision to which they were entitled. The Council will provide evidence it has put a service improvement in place.

The complaint

1. Mrs X complained the Council failed to secure the delivery of tuition provision set out in her child, Y’s, Education, Health and Care (EHC) Plan from September 2024 and then only provided some of the tuition from early 2025. Mrs X also complained about poor Council complaints handling. Mrs X said as a result, Y missed out on tuition provision to which they were entitled, which caused Y mental health difficulties. Mrs X said it caused her distress and time and trouble chasing the Council.

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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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
4. 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).
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(1), as amended).
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

7. Mrs X had a right of appeal to the special educational needs and disabilities (SEND) Tribunal when Y’s final amended Education, Health and Care (EHC) Plan was issued in December 2023, which she exercised. Mrs X wanted Y to attend a different educational placement than that named in their final amended EHC Plan. The appeal was concluded by consent in late May 2024. The law says we cannot consider matters that have been considered by a Tribunal as set out in paragraph four above. Therefore, I cannot consider a complaint about the provision or placement during the appeal period.
8. On this basis, I have investigated the period from late May 2024 when the Tribunal issued its consent order concluding the appeal and late July 2025 when the Council agreed to extend Y’s tuition provision, explained in the Council’s stage two response.

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How I considered this complaint

9. I considered evidence provided by the Council and its response to my enquiries. I considered the evidence provided by Mrs X and I spoke to her on the telephone. I also considered relevant law, policy and guidance and our guidance on remedies published on our website.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

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. 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. Section F sets out the educational provision needed by the child or young person and section I sets out the name and/or type of school.
12. There is a right of appeal to the Special Educational Needs and Disabilities (SEND) Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
13. Section 44 (f) of The Special Educational Needs and Disabilities Regulations 2014 says that where the Tribunal requires a council to amend the name of the school or type of school in section I of a child or young person’s EHC Plan, the council must issue the amended EHC Plan within two weeks of the Tribunal order being made.

Maintaining the EHC Plan

14. 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).
15. 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 its legal duty. At a minimum we expect it 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.

Elective home education

16. Parents have a right to educate their children at home (Section 7, Education Act 1996). The term elective home education is used when a parent chooses to provide education for their children at home, instead of sending them to school full-time. There are no specific legal requirements for the content of home education, but it can include the use of tutors or parental support groups. 

Complaints handling

17. The Council follows a two-stage complaints process, and includes the following:
• Stage one: the target timescale is 10 working days, where a complaint is complex the Council aims to respond within 20 working days.
• Stage two: the target timescale for stage two complaint responses is 20 working days.

What happened

18. Y has special educational needs which affects the way they manage social situations and moderate learning difficulties. Y first had an Education, Health and Care (EHC) Plan in early 2023. Y was electively home educated from autumn 2023. In December 2023 the Council amended Y’s final EHC Plan and included a ‘Mainstream’ setting in section I but did not name a specific mainstream school.

Background

19. Mrs X appealed section I of Y’s December 2023 final amended EHC Plan to the Special Educational Needs and Disabilities (SEND) Tribunal. Mrs X wanted Y to attend a special school. The appeal hearing was due to take place in December 2024. While awaiting the hearing, the Council and Mrs X came to an agreement and submitted a request for a consent order. The appeal was concluded without a hearing.

Tribunal consent order onwards

20. In late May 2024, by consent, the Tribunal ordered the Council to amend Section I of Y’s EHC Plan to include a mainstream secondary school, School 1, from September 2024. Mrs X said she only agreed to a mainstream school if Y also received additional tutoring so Y could re-engage with learning during school hours.
21. In mid-June 2024 the Council issued Y’s final amended EHC Plan, naming School 1. Y continued to be home educated between mid-June 2024 and the end of July 2024. The key part of section F of Y’s final amended EHC Plan set out the requirement for Y to receive six hours of tuition by an independent provider, Provider 1 for the whole 2024/2025 academic year until Y’s next annual review.
22. Y started a full-time placement at School 1 in September 2024.
23. In late September 2024 Mrs X emailed the Council and explained Y was not receiving their tuition with Provider 1 and asked when it would be put in place. The next day the Council responded and explained it was School 1’s responsibility to arrange and deliver the provision set out in section F of Y’s final amended EHC Plan, including the six hours of tuition a week for the whole year until the next annual review. The Council contacted School 1 the same day and School 1 said it had already contacted Provider 1 to check for availability and cost. The Council asked School 1 to action the provision as soon as possible. At the end of September 2024 the Council emailed Mrs X and confirmed Provider 1 would put in place the tuition as soon as possible and said it had emailed School 1 about the funding agreement.
24. In early October 2024 Provider 1’s records showed it received a referral from the Council to provide Y with six hours of tuition per week in School 1 for Y to make academic progress specifically with Maths and English, help to develop self -esteem, confidence and motivation to learn.
25. In late November 2024 Mrs X made a formal complaint to the Council. She said Y had not received the six hours of tutoring a week, by Provider 1. She said she wanted Y to be compensated for the lost provision and for the tutoring to start as soon as possible.
26. In mid-January 2025 the Council responded to Mrs X’s stage one complaint. It upheld Mrs X’s complaint and said the tutoring should have been in place at the point Y’s EHC Plan was issued and from September 2024. It said Provider 1 would start to provide tutoring to Y from mid-January 2025. It said to mitigate the lost provision to date it would extend the additional tutoring for Y beyond their annual review, to the beginning of June 2025. It said the Council was not in agreement to provide Mrs X with a financial remedy for Y’s missed provision because the remedy would be to extend the Provider 1 tutoring provision beyond the annual review to June 2025.
27. Mrs X was unhappy with the Council’s stage one response because she wanted Y to be reimbursed for the six hours of tutoring a week stated in their EHC Plan and wanted confirmation of the additional tutoring proposed. Mrs X escalated her complaint to stage two of the Council’s complaint process.
28. In mid-January 2025 Provider 1 started to provide tuition for Y. Provider 1 records showed Y received only some of their six hours of provision per week between mid-January 2025 and March 2025. In March 2025 a new tutor was needed for Y because there were issues with Provider 1 providing tutors at School 1 for Y. In March 2025 Provider 1 said Mrs X rejected one teacher.
29. In late March 2025 Mrs X complained to us and said Y was not receiving their full tuition hours. We asked Mrs X to complete the Council’s complaints procedure before we would consider her complaint.
30. In April and May 2025 Provider 1 records showed Y received a small amount of provision by Provider 1.
31. In mid-May 2025 the Council issued its stage two response to Mrs X. It said:
• It apologised for the delay in providing its stage two response which was due to increase in demand of the SEND service which resulted in delays in responding to complaints;
• It acknowledged there was a delay in securing Y’s six hours of tuition provision per week from 13 June 2024 and it said it took action to mitigate the impact of the delay by extending the provision, which it said was now in place until late July 2025;
• It said at Y’s annual review there may be a request for a continuation of the tutoring provision, that was not agreed as part of the Tribunal order and decisions made during the annual review process could not be predicted and did not relate to the complaint of missed provision; and
• It acknowledged Y’s tuition provision was not commissioned by the Tribunal Team at the point it finalised Y’s EHC Plan and the case was then transferred to the Reviewing Team. It said its system had changed and the Tribunal Team now ensured all provision was commissioned before transferring an EHC Plan to the Reviewing Team.
32. In June 2025 Y received tuition from an additional teacher. In June and July 2025 Y received an additional eight hours of tuition. This was in addition to the six hours of tuition a week set out in Y’s EHC Plan.

My findings

Lost provision

33. In late May 2024, by consent, the SEND Tribunal ordered Y to start at School 1 in September 2024 and their final amended EHC Plan dated mid-June 2024 said Y would receive six hours of tuition per week from Provider 1 for the whole academic year. The evidence shows Y did not receive any tuition from Provider 1 between September 2024 and mid-January 2025. This was a loss of approximately 16 weeks of tuition. The Council accepted this lost provision in its complaint responses and said it would put additional tutoring provision in place in June and July 2025 to make up for the lost provision.
34. The Provider 1 records showed Y only received some of their tuition provision between mid-January 2025 and March 2025 when there was a change in tutor. In addition Provider 1 records showed Y only received a small amount of tuition provision in April and May 2025. The records show Y did receive approximately an additional eight hours of tuition in June and July 2025. However, the additional eight hours of tuition did not put Y back into the place they would have been because Y had missed out on a large number of tuition hours in the 2024/2025 academic year. This lost provision was fault and meant Y was not provided the amount of tuition they were entitled to.

Symbolic payment

35. The Ombudsman’s Guidance on Remedies suggests a symbolic payment of between £900-£2,400 per term for lost special educational provision. The guidance says it should be based on the impact on the child and take account of any educational provision received including full time provision and if the child received some or all of the provision. The guidance says the level of financial remedy is likely to be lower depending on the level of provision missed. In deciding a suitable symbolic payment to recognise the impact of Y’s lost education and special educational provision I considered Y did attend School 1 with a full-time placement and received other educational input at School 1. This investigation just considered Y’s lost tuition part of section F between September 2024 and July 2025. I therefore recommended a symbolic payment below £900 per term. The Council has agreed to take suitable action to prevent fault in future as set out in the final bullet point in paragraph 31 above. The Council has agreed to provide the Ombudsman with evidence it has completed that action.

Complaints handling

36. Mrs X complained in late November 2024. The Council responded at stage one of its complaints process in mid-January 2025. This was a delay of approximately six weeks and was fault. It caused Mrs X frustration and the Council has agreed to apologise.
37. Mrs X escalated her stage two response in mid-January 2025. The Council responded in mid-May 2025. This was a delay of approximately three months and again caused Mrs X frustration. The Council has already apologised for that delay which was an appropriate remedy and remedied the injustice caused to Mrs X.

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Action

38. Within one month of the final decision the Council will:
1. Apologise and pay Mrs X a symbolic payment of £1,100 to acknowledge the impact of Y’s lost tutoring provision between September 2024 and mid-January 2025 and the reduced tutoring from between mid-January 2025 to May 2025. The Council will also apologise to Mrs X to acknowledge the frustration caused by the delayed stage one response. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology; and
2. Provide evidence the Council has completed the service improvement identified in the final bullet point of paragraph 31 above.
39. The Council will provide us with evidence it has complied with the above actions.

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Decision

40. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice caused and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman