Summary: Mrs X complained the Council failed to maintain her child’s Education, Health and Care plan after she moved into the Council’s area. She says the Council reduced the provision, refused to provide agreed budget payments and did not meet its own deadlines for response times to her complaint. We found the Council at fault, which caused Mrs X injustice. The Council should make payment and apologise to Mrs X.

The complaint

1. Mrs X complains about the Council’s failure to maintain her child’s Education, Health and Care (EHC) Plan after she moved into the area. She says her child had an EHC plan with another authority and when she moved into the area the Council reduced the provision named on the plan. She also says the Council refused to provide agreed budget payments and it did not meet its own deadlines in response to her complaint. She also raises the issue about claiming compensation for school transport.
2. Mrs X says that this has impacted her child by causing them significant educational and mental health setbacks. It has also caused her a great deal of stress and time in dealing with these matters.

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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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How I considered this complaint

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. I have also considered the relevant statutory guidance, as set out below. In addition, I have considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

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.
9. 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) 
10. 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. 

11. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  
12. 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.
13. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
14. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
15. The council’s (and health commissioning body’s where relevant) duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.
16. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge. The relevant qualifying school is the nearest school with places available that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have. ‘Eligible children’ include:

• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children aged eight and above);
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem;
• children living within walking distance of the school but who cannot walk to school because the route is unsafe; and
• children entitled on low-income grounds. (Education Act 1996, 508B(1) and Schedule 35B)

What happened

17. In November 2024, Mrs X moved into the Council’s area. She says that she contacted the Council before this, to tell it of the move but was told that it could not process this until the day of the move.
18. The Council says that it decided in December 2024 to adopt the previous Council’s EHC Plan.
19. On 20 December 2024, Mrs X contacted the Council to raise concerns into the provision being provided. This was then escalated into a complaint on 10 January 2025.
20. On 3 February 2025, the Council issued its first stage response to the complaint and Mrs X asked for an escalation into the complaint on the same day. On 12 March 2025 the Council told Mrs X that its stage two response would be delayed. On 12 March 2025 the Council issued its stage two response.
21. The Council says that after the move, there was a delay in it arranging transport, and this did not start until February 2025. Mrs X says that it caused her further distress in having to arrange for compensation with the Council for the missed transport before this date.
22. The Council says that it provided no provision before Christmas in 2024. From January 2025 to February 2025, it provided six hours of online tuition, 10 hours of alternative provision and 10 hours of ‘Push Forward’ provision which included two hours of Speech and Language Therapy (SaLT).
23. From February 2025 to July 2025, it then provided 10 hours of ‘Push Forward’ provision, two days of alternative provision each week, and three hours of online tuition.

Delay in transfer of the EHC Plan

24. Mrs X says that she told the Council of the move by telephone before the date however it told her to call back on the day of the move. The Council says that it was told of the move on the day it occurred. It agreed to adopt the EHC Plan nine working days later. The provision began after the Christmas break period, so in January 2025.
25. I have no reason to doubt the verbal testimony provided by Mrs X. I consider the Council could have made note of the move so it was in position to arrange provision soon after this. Even after it became aware of the move (in November 2024), it failed to provide the provision set out in the EHC Plan within 15 working days. I consider this to be fault, and I have taken this in account in my overall award below.

Provision set out in the EHC Plan

26. Mrs X says the Council failed to fully provide the provision set out in her child’s EHC Plan. She has provided a copy of the EHC Plan completed by the previous authority, which shows that her child has several needs. A basic summary of the needs and provision each week is:
• Education activities to be delivered for no less than 20 minutes in total.
• Friendship mentoring support for 30 minutes once per week.
• A social skills programme throughout the day.
• Structured group work, once per week.
• In addition to therapies, 15 hours of ‘Push Forward’ provision per week. This would be reviewed throughout the plan, with the aim of increasing alternative and academic provision to 25 hours as soon as the child is ready.
• Enrichment and physical activities.
• Three hours per week academic tuition.
• Support with a daily timetable.
• 1:1 adult support.
• Daily activities of no less than 5-10 minutes in total to support auditory processing. Also, a two-minute pre-tutor session.
• Two hours of emotional support mentoring per week.
• Therapeutic input one hour each week.
• Occupational therapist one hour per week.
27. In response, the Council has confirmed that it only provided 10 hours of ‘Push Forward’ provision from January 2025 to July 2025. I consider this to be fault by the Council because it has not met the provision directly stated in the EHC plan.
28. The remaining support provided has been inconsistent with the support changing after February 2025 due to safeguarding. Mrs X also says that much of the online tuition was unsuitable for her child. The Council has not shown how the support it provided, meets the specific needs set out in the EHC Plan.
29. The Council has said that some therapies (other than SaLT) were deferred. Also, that it provided SaLT sessions as part of the ‘Push Forward’ provision.
30. However, the EHC Plan says that a SaLT therapist should oversee the provision at least two to three hours every six weeks and the ‘Push Forward’ provision is separate. I consider the failure to provide the precise needs set out in the EHC Plan to be fault by the Council. This has impacted both Mrs X and her child by causing distress in the form of uncertainty. It also caused distress with the feeling of missing the provision the child was entitled to receive.
31. I have therefore recommended an award in line with our guidance on remedies on this matter which recommends a payment of £900 to £2,400 per term of missed or failed provision.
32. I have considered that some provision was provided during this time, so the top amount of this award is not warranted. (For the winter term, the Council was only responsible for the provision from the end of November 2024, and so some provision was provided by the previous authority during this term). However, the EHC lists many specific needs and so the impact of not having these met is higher. I have therefore reflected this in my award.

Personal budget

33. The EHC plan also sets out a personal budget payment for parent support. Furthermore, the plan outlines payments for an emotional support mentoring for one hour each week, along with enrichment and physical activities.
34. Mrs X says the Council refused to make payments set out in the EHC Plan to support her child’s development. The Council say that it has used the annual allocation for the elements set out in the EHC Plan.
35. Again, the EHC Plan sets out specifically the money to be paid and for what services or activities this money is provided for. I find the Council should ensure and evidence that it has paid the personal budget payments in full for the academic year of 2024 to 2025.

Transport

36. Mrs X says that she had to complain about the lack of transport provided following the move. The Council has since arranged transport from February 2025 onwards. It told her she would need to fill out compensation forms to reclaim the money for the transport from November 2024 to February 2025.
37. There is no mention of transport on the EHC Plan however the Council has not disputed that it should have arranged and provided this payment. Considering this, I find that it could have made it easier for Mrs X to reclaim the payment she was entitled receive. The failure to do so would have caused Mrs X unnecessary distress which I find the Council should apologise to her for.

Complaint Handling

38. Mrs X says the Council failed to meet its own timescales in responding to her complaint.
39. The Council’s corporate complaints policy says that it will provide a stage one response within 15 working days. For a stage two response, it states that this will take place within 25 working days, and it will let a complainant know if its response will be delayed.
40. The evidence shows the Council’s stage one response was late by four working days and it only informed Mrs X that its stage two response would be delayed, after the response was due. Following this, it kept Mrs X updated until it sent its final response on 27 March 2025.
41. I consider the failure to meet its own timescales to be fault by the Council. Again, this impacted Mrs X by causing her further frustration. In consideration of this, I find the Council should apologise.

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Action

42. Within four weeks of my final decision, the Council has agreed to:
1. Provide a written apology to Mrs X for the unnecessary and avoidable distress caused by the failure to provide the full provision set out in the EHC Plan and its communication regarding the complaint.
2. Pay £4,500 (£1,500 per term) for the failure to provide the full provision set out in the EHC Plan.
3. Provide and evidence the personal budget of £7,677 has been used in full for the academic year of 2024/2025.
43. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. I find fault causing injustice. The Council has agreed to apologise and make a payment to Mrs X.

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Investigator's decision on behalf of the Ombudsman