Summary: The Council failed to provide the tutoring and mentoring set out in Ms X’s adult son’s (Mr S’s) Education, Health and Care (EHC) Plan. The Council has already apologised. It should also pay Ms X £996 which is the cost of Mr S’s missed provision.

The complaint

1. Ms X complained the Council did not provide tutoring and mentoring as detailed in her adult son’s (Mr S) Education, Health and Care (EHC) Plan. The Council upheld Ms X’s complaint and apologised but has not provided the means to make up the missed provision. Ms X’s son missed provision to which he was entitled and feels let down by 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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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What I have and have not investigated

5. I have only investigated the provision Ms X said the Council did not provide.
6. I have not investigated the contents of the Education, Health and Care (EHC) Plan itself. If Ms X is not satisfied with the Plan, she can appeal this to the special educational needs and disabilities (SEND) Tribunal.

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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 and our guidance on remedies published on our website.
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 found

Relevant legislation

The Education, Health and Care (EHC) Plan 

9. 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 special educational provision needed by the child or young person.

Maintaining the Education, Health and Care (EHC) Plan

10. 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)  
11. 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. 

What happened

12. I have summarised below the key events; this is not intended to be a detailed account.
13. Ms X has an adult son (Mr S) with an Education, Health and Care (EHC) Plan. Section J of Mr S’s EHC Plan sets out his personal budget which includes the following provision:
• three, two-hour tutoring sessions each week, costing £48 per hour; and
• two, 35-minute mentoring sessions each week, costing £60 per hour.
14. Ms X complained to the Council in January 2025. She said after Christmas 2024, the Council reduced Mr S’s tutoring sessions to two, two-hour sessions each week. Mr S missed a total of 12 hours of tutoring over a half term period.
15. Ms X also complained the Council cancelled Mr S’s mentoring sessions from after Christmas 2024. Mr S missed a total of seven hours mentoring over a half term period.
16. The Council issued a stage one response in February 2025 and a stage two response in April. The Council upheld Ms X’s complaint in the stage two response. It apologised Mr S missed the tutoring and mentoring sessions and confirmed it had since put the correct provision in place for him.
17. Ms X remained unhappy and complained to the Ombudsman in April 2025. She said the Council accepted it failed to provide S with the mentoring and tutoring provision as set out in his plan but did not offer to fix this. She would like the Council to make up for the missed provision.

Analysis

18. The Council accepted it failed to provide seven hours of mentoring and 12 hours of tutoring provision as set out in Mr S’s EHC Plan and apologised for this and reinstated the provision.
19. While the Council accepted the fault and apologised for this, it did not provide a remedy to put Mr S back in the position he would have been, had the fault not happened. In her complaint to the Ombudsman, Ms X said she would like the Council to make up for the missed provision.

Summary of fault causing injustice

20. The Council recognised it is at fault for reducing Mr S’s tutoring and withdrawing his mentoring provision. This has caused Mr S to miss provision to which he was entitled.

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Action

21. Within four weeks of the final decision, the Council should pay Ms X £996. This is the cost of the provision Mr C has missed, which he was entitled to as set out in his EHC Plan.
22. The Council should provide us with evidence it has complied with the above actions.

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Decision

23. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman