Summary: The Council was at fault for a delay in deciding Mrs X’s son’s special educational needs support, for failing to deliver all of the support, and for failing to properly look into Mrs X’s complaint that the support was not being delivered. This likely caused Mrs X and her son distress. The Council has agreed to apologise, to make symbolic payments to recognise their injustice, and to improve its service.

The complaint

1. Mrs X complains that:
• The Council failed to decide her son’s (Y’s) special educational needs support within statutory timescales.
• It also “consistently ignored [her] emails for months and months”.
• Y’s school refused to deliver his special educational needs support, claiming the support plan from the Council was ‘advisory’.
2. Mrs X says Y did not receive the right support, and that – because of the Council’s failings – both she and Y (and their whole family) suffered distress.
3. Mrs X also says she suffered a financial injustice, because the stress caused her to put on weight, and she had to spend thousands of pounds on weight-loss medication.
4. Mrs X wants reimbursing for the medication, and compensation for her and Y’s distress. She also wants the Council to improve its service.

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The Ombudsman’s role and powers

5. 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)
6. If we are satisfied with a council’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)
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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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law and guidance.
9. Ms 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

Law and guidance

10. 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.
11. Councils have a duty to make sure children receive the provision set out in section F of their EHC plans. (Children and Families Act 2014, Section 42)
12. The duty to arrange this provision is non-delegable. This means if a council asks another organisation to deliver 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)
13. Statutory government guidance (the ‘SEND code of practice’) says that, when a council proposes to amend a child’s EHC plan, it must write to the child’s parent with a notice providing details of the proposed amendments.
14. If – following input from the child’s parent – the council decides to continue to make amendments, it must do so and issue a new EHC plan within eight weeks of the original amendment notice.

What happened

15. The Council issued an EHC plan for Y in February 2024, and then, three days later, issued another one. Among other things, this plan said Y should receive drama and speech therapies.
16. Y’s school wrote to Mrs X shortly afterwards and told her the Council had finalised Y’s EHC plan without sharing it with the school. As a result, the school was “not ready to take on this EHCP as it is laid out … [it is] not going to meet yet to discuss EHCP implementation as we are not there yet”.
17. The Council then – two weeks after issuing Y’s EHC plan – decided to amend the plan again.
18. In March, Mrs X exchanged emails with Y’s school about his special educational needs support. Y was still not getting all of the support he needed on a full-time basis.
19. In May, Mrs X complained to the Council. She said it had failed to respond to her emails and messages for months. She also said Y’s school was refusing to deliver the provision in his EHC plan and was saying it viewed the plan as a draft.
20. Shortly after, the Council issued a draft amended EHC plan. It then responded to Mrs X’s complaint, saying it would issue the final plan as soon as possible. It did not comment on Mrs X’s complaints about the delivery of Y’s provision or about its failure to respond to her correspondence.
21. In July, the Council issued Y’s final amended EHC plan. Although the funding to his school was significantly increased, the provision in the plan remained largely unchanged. The plan continued to include drama and speech therapies.
22. In September, Mrs X submitted a stage 2 complaint. The Council responded in November, accepting that:
• “It is clear there are emails and call[s] that have gone unanswered and this is not in line with high level of service you should expect”.
• Y had not been having drama therapy because the school did not have enough funding. This had since been resolved with the school.
23. In January 2025, Y began receiving the drama and speech therapies in his EHC plan.

My findings

EHC plan amendment

24. The statutory guidance gives councils eight weeks to amend an EHC plan after deciding to do so.
25. As the Council began amending Y’s EHC plan in February 2024, the process of finalising the amended plan actually took 21 weeks. This was a delay, for which the Council was at fault.
26. This delay did not cause Y a significant injustice, because the provision in his new EHC plan was not substantially different to in the previous one.
27. However, the delay likely caused some distress to Mrs X, which the Council should take action to remedy.

Communication

28. The Council has accepted that it failed to respond to Mrs X’s emails and calls and has apologised. There is no need for me to make any further comment on this matter. However, my recommendations, below, take into account Mrs X’s likely distress from the Council’s lack of communication.

Y’s support

29. Councils – not schools – are ultimately responsible for children receiving the provision in their EHC plans.
30. Even if a council gives a school a budget and asks it to deliver provision on its behalf, the law says that the statutory responsibility for delivering the provision remains with the council.
31. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the right special educational needs support for every pupil with an EHC plan.
32. We do, however, consider that 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 right 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 plan review process.
• Quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
33. Mrs X did raise a complaint that Y’s provision was not in place. And, although I asked the Council to provide evidence that it looked into this matter, it did not do so. Instead, it simply says it gave Y’s school the budget to deliver his provision.
34. Consequently, I am not satisfied that the Council took steps to check whether Y’s school was delivering the right special educational needs provision. The evidence Mrs X has sent me suggests it was not.
35. As Ms X reported this matter to the Council, and as the Council failed to take the opportunity to ensure it was meeting its duties to Y, I have found that it was at fault.
36. From May (when Mrs X reported this matter) to July 2024 (when Y’s new EHC plan was issued), it is likely Y missed out on at least some special educational needs support. I have made recommendations below to address his injustice and to improve the Council’s service.
37. Furthermore, although drama and speech therapies were in Y’s EHC plan as early as February 2024, the Council did not begin delivering them until January 2025. This was further fault by the Council.
38. The delay likely caused Y an injustice, as it meant he did not receive the right support at the right time. My recommendations to address this injustice now follow.

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Action

39. Within four weeks, the Council has agreed to:
• Apologise to Mrs X for causing delays to Y’s EHC plan, for failing to deliver all of his special educational needs support, and for the injustice this likely caused both of them. We publish guidance which sets out what we expect an effective apology to look like. The Council will consider this guidance when writing to Mrs X.
• Make a symbolic remedy payment of £300 to Mrs X to recognise that these matters likely caused her distress.
• Make a further symbolic remedy payment of £1,000 to Mrs X, on behalf of Y, to recognise the likely impact that not getting some of his support caused him throughout much of 2024.
40. Within 12 weeks, the Council has agreed to write to us to set out the steps it will take to prevent similar failings in future. In doing so, it will consider:
• Reviewing its commissioning arrangements for special educational needs therapies.
• Training its staff on its responsibility to ensure special educational needs provision is being delivered.
41. The Council will provide us with evidence it has done these things.

Notes on recommendations

42. I have not commented on Mrs X’s request for reimbursement of the money she spent on weight loss medication. We have neither the expertise nor the resources to decide whether someone’s medical issues have been caused by a council, or whether the council should then become responsible for the costs of the medication.
43. Although Mrs X says she wants ‘compensation’ for the Council’s failings and their impact on her and her family, this would generally be something which is decided by a court (not the Ombudsman).
44. Instead, we recommend symbolic financial remedies which ‘recognise’ someone’s injustice, rather than ‘compensating’ for it. These are often small sums and are decided in line with our guidance on remedies, which is available on our website.

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Decision

45. The Council was at fault, and this caused injustice to Mrs X and Y, which the Council will now take action to address.

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Investigator's decision on behalf of the Ombudsman