Summary: Ms X complained about the Council’s delay in finalising her son’s Education, Health and Care Plan following a Tribunal order. She also said the Council delayed securing the special educational provision once the Plan had been finalised. We find the Council at fault for delaying finalising the Education, Health and Care Plan and for further delay in securing the special educational provision. This fault caused Ms X and her son distress and uncertainty. Ms X’s son also suffered a loss of provision. The Council has agreed to apologise, pay a symbolic remedy, and make a service improvement.

The complaint

1. Ms X complained the Council delayed finalising her son, Y’s, Education, Health and Care (EHC) Plan following a Tribunal order in October 2024. She also complained the Council delayed securing the special educational provision after issuing the EHC Plan.
2. Ms X says as a result, Y was not provided education to which he was entitled and he missed out on specialist provision. This impacted his education and emotional wellbeing. Ms X also says she and Y were caused avoidable distress and uncertainty, and she was put to time and trouble trying to resolve the situation.

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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. 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.

6. 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

7. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
8. 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 have or have not investigated

9. Ms X complained to the Ombudsman in April 2025. We would usually end our investigation at the point a complaint was made to us. However, in this case I have exercised discretion to investigate up to July 2025, as Y did not receive the provision specified in his EHC Plan up to this point.
10. Any missed provision after July 2025 would be considered a new complaint and the Council would need to be given an opportunity to respond.

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What I found

Education, Health and Care Plans

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. 
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)  
13. 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. 

Appeals to the Tribunal

14. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s special educational needs, the special educational provision specified, the school or placement or that no school or placement is specified in their EHC Plan; and
• amendment to these elements of an EHC Plan.

15. If the Tribunal orders the council to make or amend an EHC Plan for the child or young person, the council must do so within five weeks of the order being made.

What happened

16. In September 2024 Y started year 10. Ms X appealed section I (the placement) of Y’s EHC Plan to the Tribunal, as she felt an ‘Education other than at School’ (EOTAS) package would better suit Y’s needs. The Tribunal heard her appeal in October 2024 and subsequently issued an order that required the Council to amend Y’s EHC Plan to include EOTAS rather than a traditional education setting.
17. The Council had five weeks from the date the Tribunal made the order to amend the EHC Plan. This meant it should have amended and issued the EHC Plan by the end of November.
18. At the end of November, the Council contacted Ms X to arrange a meeting to discuss EOTAS. It asked what Ms X proposed as an EOTAS package for Y and what timetable she thought Y could manage. The meeting was held at the beginning of December and in line with the provision set out in the EHC Plan, the Council identified it needed to find speech and language therapy (SALT), tutoring, and occupational therapy (OT) services for Y.
19. Approximately two weeks later, the Council contacted Ms X again to ask if she had identified any suitable services and whether she could provide costings. Ms X replied and said she had identified an occupational therapist and a tutor but still needed to identify a speech and language therapist.
20. In January 2025, Ms X complained to the Council as the EHC Plan had still not been amended and finalised, and the EOTAS package still not implemented. Ms X also sent an email to the Council’s special educational needs (SEN) team to ask if it had contacted the occupational therapist she had identified.
21. In February, the Council finalised Y’s EHC Plan. Ms X escalated her complaint to stage two of the Council’s complaints process on the same day.
22. In March, the Council issued its stage two complaint response, which upheld her complaint. The Council explained the delay in finalising the EHC Plan was partly due to staff capacity within its SEN team. It also said it had misinterpreted email correspondence with Ms X, and it believed she had been trying to source the EOTAS provision, so it had not done so. It said it anticipated the EOTAS package would be in place within the following three weeks.
23. Ms X complained to the Ombudsman in April.
24. In July, the Council contacted Ms X to ask if she had arranged SALT or a tutor. Ms X replied that she had not, and that no contact had been made since the last discussion. The Council said it was not sure what provision had been found and secured.
25. The Council then told Ms X it had attempted to arrange SALT, but this had proved unsuccessful due to shortages within the service. It also said it had tried to arrange tutoring but it had not received a response, so had escalated this to senior management.
26. In September, the Council sent Ms X a proposed EOTAS timetable for Y.

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Analysis

27. The Tribunal made its order to amend Y’s EHC Plan in October. Therefore, the Council should have finalised the EHC Plan by the end of November. However, it did not finalise the EHC Plan until mid-February. This is a delay of over 11 weeks, which is fault.
28. The Council then further delayed implementing the EOTAS package once it issued the final EHC Plan. In its stage two complaint response in March, the Council indicated the EOTAS provision would be in place within three weeks. This did not happen, and no provision was put in place for Y for the remainder of the academic year. This is fault.
29. The Council explained it delayed arranging the EOTAS package because it believed the EHC Plan needed to be amended first. It said it did not provide a package earlier, as the EOTAS needed to reflect section F of the Plan, and this was not finalised until February. It also said it struggled to source SALT and tutoring. However, the Council should still have issued the EHC Plan by the statutory deadline and put in place the provision as soon as it had done so.
30. A tutoring company sent the Council a tuition proposal with associated costs in March. However, the Council did not take any action in response to this. This is fault. The Council has said its lack of action throughout the case was due to an internal restructure in which the casework officer allocated to Y’s case moved teams. It also explained this was due to wider staff capacity in its SEN team. However, the Council still had a legal duty to ensure the provision set out in the EHC Plan was delivered, and it should have ensured it monitored the progress of Y’s case regardless of staffing changes.
31. The Council also partly attributed the delay to a misunderstanding about who was sourcing the provision. The Council said it thought Ms X had sourced the provision set out in the EHC Plan and that it had already been put into place. However, I have seen emails that show the Council asking Ms X if she had successfully sourced the provision. Ms X told the Council she had not.
32. It appears the Council relied heavily on Ms X to source the provision and did not consider its own duty to ensure the provision set out in the EHC Plan was secured. The Council should also have known Ms X had not secured the provision, since it had not prepared a personal budget for Ms X to fund this. This shows poor oversight of the case, which is fault. In addition, the Council’s duty to ensure the provision set out in section F of an EHC Plan is non delegable, so it was the Council’s responsibility to ensure this was in place, not that of Ms X.
33. The Council also accepted that its contact with Ms X between March and July was limited, and it did not give Ms X any updates on its progress in sourcing Y’s provision. The Council only contacted Ms X again in July to see if she had been able to source the provision and to offer assistance with finding this provision. It also failed to tell Ms X that the casework officer assigned to Y’s case had moved teams. This is evidence of poor communication and case monitoring, which is fault.

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Injustice

34. The Council’s delay in finalising Y’s EHC Plan caused Ms X and Y uncertainty, distress and frustration. Ms X was also put to avoidable time and trouble trying to resolve the matter and ensure Y received the provision he is legally entitled to. The Council’s further delay in sourcing the provision in the Plan compounds this injustice, since Y did not receive the provision set out in the EHC Plan for the remainder of the academic year.
35. I have recommended a suitable remedy to address this injustice below. In considering the remedy I have considered Y’s school year and that in the academic year 2024 to 2025 he was in year 10, which is a critical period leading up to the GCSE exam period.
36. After I sent written enquiries to the Council, it contacted Ms X and offered a financial remedy in recognition of its fault. It offered £2500 for loss of provision to Y, and a further £500 for the impact on Ms X. Ms X did not accept this offer. The Council’s offer of £500 for the impact on Ms X aligns with the Ombudsman’s guidance. However, I have recommended a financial remedy more in line with the Ombudsman’s guidance for loss of provision below.

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Action

37. Within one month of the final decision the Council has agreed to:
1. Apologise to Ms X for the distress and uncertainty caused by the identified fault.
2. Pay Ms X £500 to reflect the frustration, uncertainty and avoidable time and trouble caused by the Council’s faults.
3. Pay Ms X £600 for the loss of provision for the end of November, which marks the end of the five-week period in which the Council had to implement the Tribunal order, to December 2024.
4. Pay Ms X £4800 for the loss of Y’s educational provision from January to July 2025. We recommend Ms X uses this payment for Y’s educational benefit.
5. Establish a process to ensure the provision detailed in any new or amended EHC Plan is put into place as soon as it is finalised. This process must include a system to ensure that, in the event the officer responsible for securing the provision leaves their post or is absent for an extended period, their work is promptly allocated to another officer to progress.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice for which I have recommended a remedy. The Council has agreed to my recommendations so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman