Summary: We find service failure for some delays implementing some of Ms X’s child’s special educational provision. This caused Ms X injustice. We are satisfied the Council has apologised. We do not agree with Ms X that the Council should reimburse her.

The complaint

1. Ms X complained the Council delayed issuing an accurate final education, health and care plan. She also complained the Council failed to provide, or delayed providing, the provision in that plan. Ms X said as a result, she had to pay for some provision the Council should have provided.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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

8. 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)
9. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
10. Ms X appealed her child’s education, health and care (EHC) plan at the Tribunal. This process ended in June 2024 when the Tribunal ordered the Council to amend the EHC plan.
11. Provision should therefore have been in place five weeks from this Tribunal order, which was the end of July 2024. This was the end of the summer term. EHC plans set out provision to be in place during term times only, unless specifically stated.
12. For this reason, I have investigated the way the Council provided the EHC plan provision from the start of term in September 2024 to March 2025 (when Ms X complained to us).

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How I considered this complaint

13. I considered the information and documents provided by Ms X and the Council. I spoke to Ms X about her complaint. Ms X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
14. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

15. A child or young person with special educational needs may have an education, health and care (EHC) plan. This plan sets out the child’s needs and what arrangements should be made to meet them.
16. If the Tribunal orders a council to amend an EHC plan, the council has five weeks to issue the amended EHC plan and put the provision in place.

What happened

17. Ms X’s child, O, has an EHC plan. In June 2024, the Tribunal ordered the Council to amend O’s EHC plan. In June, the Council issued O’s final amended EHC plan.
18. Between June and December, the Council amended O’s final EHC plan three more times.
19. In early 2025, Ms X complained about delays issuing the EHC plan and delays implementing the provision in the EHC plan.
20. The Council said the Tribunal’s decision meant it was difficult to establish the judge’s directions. It said it took legal advice and issued the EHC plan. It said it then amended the plan several times because Ms X raised concerns with it.
21. The Council said the amendments to the EHC plan did not delay provision. The Council said O had a large package of provision. It accepted that some provision had taken longer to provide than the Council wanted but this was unavoidable. It apologised.
22. The Council said it told Ms X previously it would commission provision directly. It said in the past Ms X had commissioned and paid for some provision herself before the Council’s panel had agreed it. The Council referred to a previous complaint response, sent to Ms X in September 2024, which said it had explained to Ms X on a number of occasions that unless she sought prior approval from the Council’s panel, it would not fund any provision or assessment.
23. The Council said Ms X had paid for some provision since then. It said this was Ms X’s choice, so this was at her own expense.

Analysis

Issuing the final education, health and care (EHC) plan

24. Ms X complained the Council delayed issuing an accurate final education, health and care plan.
25. The Council had five weeks from the Tribunal’s order to issue O’s amended EHC plan. This would have been at the end of July 2024. The Council issued two amended versions of the EHC plan by the five-week deadline.
26. I am therefore satisfied that the Council met its obligation to issue a final EHC plan within five weeks. I do not find the Council at fault.
27. The Council then issued two further amended versions. The Council issued these amended versions because Ms X raised complaints about them. I do not agree that this meant previous versions were inaccurate. I do not find the Council at fault for this.

Provision

28. Ms X complained the Council failed to provide, or delayed providing, the provision in O’s EHC plan. I have addressed provision separately below.
29. As I explained above (paragraph 12), I have investigated the way the Council provided the EHC plan provision from the start of term in September 2024.

Coaching sessions

30. Ms X paid for several coaching sessions for O in the summer of 2024. She wants the Council to reimburse her for these.
31. As I have said above, I am only considering what provision was in place from September 2024, the start of the term. This is when the Council had a duty to begin providing the provision in the Tribunal’s ordered EHC plan. Therefore, the Council was not responsible for any provision Ms X chose to put in place over school holidays.
32. Further to this, I am satisfied the Council told Ms X by email at least a week before the first of these sessions that the Council would fund the coaching sessions directly.
33. For these reasons, I do not find the Council at fault.

Speech and Language Therapy

34. Ms X complained the Council delayed implementing speech and language therapy (SALT). She said because of this, she paid for SALT for the first half of the autumn term.
35. The Council told Ms X in August it was identifying SALT providers. The Council said it would need to get additional quotes from its usual providers as well. I understand the SALT provision was in place from the second half of the autumn term.
36. In its complaint response, the Council said it had commissioned one SALT provider, but they told the Council they could not provide the service. The Council told Ms X it was regrettable and frustrating, but it was outside the Council’s control.
37. I agree it was outside the Council’s control. I am satisfied the Council itself did not delay arranging this provision. However, there was a delay. I find this is service failure (as explained in paragraph two).
38. I find this service failure caused Ms X uncertainty which is injustice. The Council apologised in its complaint response. I am satisfied the apology is an appropriate and proportionate remedy for the level of injustice caused here.
39. Ms X said she paid the SALT therapist’s cost for attending a meeting the Tribunal ordered in the EHC plan.
40. I have considered the Tribunal’s order and the EHC plan. Neither are clear about who covers the cost. I therefore cannot make a finding about who should pay this cost. However, the Council repeatedly told Ms X from at least July 2024 that if she paid for any services or assessment (and by extension any associated cost), it would be at her own financial risk.
41. Ms X also complained that she paid for a SALT report for a review of O’s EHC plan in November. It is the Council’s duty to obtain these reports, not the parent’s. Given the Council’s repeated warnings about Ms X’s financial risk, Ms X chose to pay for this. I do not find the Council at fault.

Learning Support Assistant

42. Ms X complained there was a delay implementing a learning support assistant (LSA) for O.
43. In August, the Council’s panel agreed to fund an LSA from an employment agency. The Council said that in early September Ms X rejected the LSA that had been identified for the role.
44. Ms X found another LSA. The Council said it chose to work with Ms X on her choice of LSA rather than insisting on using an LSA from the agency its panel had agreed. The Council said it was disappointed with the agency’s responsiveness.
45. I find it is good practice for the Council to have worked with Ms X on her preference of provider.
46. Ms X said she interviewed an LSA in October, but the Council did not confirm funding until November.
47. I find the Council had to follow its processes and get the LSA provider approved by its panel to agree funding. The Council approved funding a month after Ms interviewed the provider. I do not find a delay.
48. O did not have an LSA until the second half of the term. This is service failure.
49. I find this caused Ms X uncertainty. The Council apologised. I am satisfied that this apology is appropriate and proportionate to the level of injustice here.

A professional lead

50. The EHC plan said a professional lead should be implemented. They were to oversee, manage and timetable O’s package of provision, and arrange and attend meetings.
51. In early July, the Council requested that a professional from the educational psychology service take the role. This was not implemented until October.
52. I do not find the Council delayed: it acted very quickly to get a professional in the role. However, there was a delay. I find this is service failure. I do not find this service failure caused an injustice.
53. Ms X questions how the professional lead is undertaking their work. Given that the Tribunal set out what the professional would be responsible for, rather than how they would work, I cannot find the Council at fault.

Careers advice

54. Ms X said this provision was never delivered.
55. Ms X contacted a careers advice provider in early September. It told her O was not eligible for its services because it does not provide provision on a parent’s request. The Council told Ms X the next week it would reach out to this provider.
56. A month later, the Council told Ms X this provider would contact her. It said anything the provider had previously told Ms X had been superseded because the provider had now agreed to provide this service.
57. The Council repeated told Ms X that if she decided to commission careers advice without the Council’s agreement, it was at her own financial risk. The Council said, “… there is a procedure that must be followed when spending public funding and this has been explained a number of times.”
58. Ms X complained that she paid for careers advice. She wants the Council to reimburse her for it. She said she paid for this because the deadline for college applications was early December.
59. I find the Council told Ms X it was commissioning this provision. And it did so in good time for the December deadline. The Council advised Ms X that paying for this provision would be at her own cost. Ms X chose to commission the service. For these reasons, I do not find the Council at fault.

Music lessons

60. The Tribunal said access to music was not “necessary educational provision”. It said this was extracurricular and did not need to be included in the EHC plan.
61. Ms X said the Council agreed to pay for music lessons from November. She complained the Council did not pay an invoice from mid-November, so she paid it in late December.
62. Ms X said the Council then paid the company, the company paid the tutor, and the tutor reimbursed her. She said that while she is not out of pocket, she said it caused her distress. Ms X said the tutor told her they could not provide a service they were not being paid for. Ms X said she felt like she did not have a choice because she wanted to keep these lessons going for O.
63. I do not find the Council at fault. And I do not find Ms X suffered an injustice.

Occupational Therapy

64. Until July, Ms X had paid for occupational therapy (OT) and the Council reimbursed her. In September, the OT provider sent Ms X invoices. Ms X paid these. At the end of September, the Council asked the provider to reimburse Ms X and invoice the Council, which it did.
65. I find no delay starting this provision. Therefore, I do not find the Council at fault.

Mentoring

66. Ms X said the EHC plan says mentoring should be once a week throughout the year. She complained the Council will only honour this during term time. She wants to be reimbursed for sessions she paid for during the summer holidays in 2024.
67. The Council said in its complaint response that it has a duty to provide EHC plan provision in termtimes only. I agree.
68. I find the EHC plan does not say this provision should be for 52 weeks a year. Unless a Tribunal specifically orders that provision is for 52 weeks a year, we would not expect a council to provide provision during school holidays.
69. I therefore do not find the Council at fault. And I do not agree the Council should reimburse Ms X for mentoring provision she chose to pay for during the school holidays.

Physical Education

70. Ms X complained there was a delay implementing this.
71. In its complaint response, the Council agreed there was a delay. It said this provision was not in place until the second half of the autumn term. It apologised.
72. The Council explained there was a miscommunication between it and Ms X. The Council believed Ms X was sourcing a provider. When the Council told Ms X it had reached out to some providers, Ms X told the Council she was in discussion with another provider. The Council approached that provider as well.
73. The Council said it waited for Ms X’s preferred provider to respond. The Council decided not to go with Ms X’s preferred choice because of their poor communication. The Council said it then took its two identified providers to its panel, and the panel agreed to fund one of these.
74. I find the Council worked proactively to source a provider. It considered Ms X’s preference and tried to engage with them. The Council then took the case to panel. I do not consider there is sufficient evidence to find fault.

Laptop

75. The Tribunal order said it was the Council’s responsibility to provide O with equipment necessary to access provision. Section F of the EHC plan agrees use of a laptop.
76. Ms X said that in November the Council committed to paying a certain amount towards a laptop for O. She complained the Council delayed making this payment, so she bought one. She wanted the Council to honour its agreement to pay for the laptop.
77. In its complaint response, the Council said it paid Ms X in January 2025. It apologised for the delay processing the payment.
78. I do not consider this delay is significant enough to be fault. Ms X paid for the laptop in the two months between the panel agreeing to make this payment and the Council making this payment. This means O did not miss out, so I find there was no injustice to O. It was Ms X’s choice not to wait for the Council’s payment. The Council made the payment. Ms X is not out of pocket. Therefore, I find no injustice to Ms X.

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Decision

79. I find service failure causing injustice. I am satisfied the Council has taken actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman