Summary: X complains on behalf of Y that the Council failed to secure special educational provision in Y’s Education, Health, and Care Plan, failed to properly consider input from Y and X, and did not handle his complaints clearly. X said this delayed Y’s educational development and future opportunities and caused significant distress to them both. We find the Council at fault for failing to secure an element of the special educational provision, but the fault did not cause injustice. We do not find the Council at fault for its complaint handling and we cannot investigate how it completed the plan because it was linked to the Tribunal appeal and is therefore out of our jurisdiction.

The complaint

1. X complains on behalf of Y about the Council’s handling of Y’s Education Health and Care Plan. In particular he complains the Council:
1. Failed to secure special educational provision in the plan, called outreach support, when it refused to pay X to deliver the provision.
2. Failed to properly consider input from Y and X when completing the plan following a Tribunal decision.
3. Did not handle his complaints properly when it failed to clearly explain why X could not deliver the provision.
2. X said the Council’s failings significantly delayed Y’s educational development, and negatively impacted his future opportunities, mental health and wellbeing. X also said he was caused significant distress and frustration.
3. X would like the Council to agree to allow him to deliver the outreach support in the plan because he is the only person who can do so.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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.
8. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
9. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
10. 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)
11. 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

12. I have investigated from April 2024 to April 2025 when X complained to us. X referred to matters that happened more than 12 months before he complained to us, and are therefore late. I have decided there are no good reasons why X did not complain about those matters sooner, and I therefore have not investigated before April 2024 for reasons explained in paragraph 6.

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How I considered this complaint

13. I considered evidence provided by X and the Council as well as relevant law, policy and guidance.
14. 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 law and guidance

EHC Plans

15. 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. 
16. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

Appeal rights, and their effect on things the Ombudsman can investigate

17. There is a right of appeal to the Tribunal against a council’s decisions and actions including its:

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

18. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened.

19. However, 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)

What happened

20. This is a summary. It is not a detailed chronology of everything that happened. I have expanded on key events in the analysis section.
21. Y is a young adult with an EHC Plan. X is Y’s father.
22. In November 2023 Y appealed to the Tribunal. He appealed because he disagreed with parts of his EHC Plan including the special educational provision in Section F
23. The Tribunal Hearing happened in October 2024. It gave its written decision about two weeks later in November. The decision included an order to amend Y’s EHC Plan to include specified wording in Sections B, F and I.
24. X complained to the Council in December. He complained the Council was failing to provide outreach support listed in the EHC Plan. He said the sole solution was for himself to provide the outreach support.
25. The Council issued Y’s EHC Plan with the wording ordered by the Tribunal in January 2025.
26. The Council replied to X’s stage one complaint in February. It said its position was that a different named person would be a suitable professional to implement the provision.
27. X disagreed and escalated his complaint to stage two of the complaint procedure.
28. In March 2025 the Council responded to X’s stage two complaint. It maintained its position that it would not pay X to provide Y’s outreach support.
29. In April 2025 X complained to the Ombudsman.

Analysis

30. I address each part of X’s complaint below:

a) Complaint the Council failed to secure special educational provision, called outreach support, when it refused to pay X to deliver it.

31. X said the primary outcome he wanted from his complaint was for the Council to approve him to provide the outreach support listed in Section F of Y’s EHC Plan.
32. The Tribunal’s decision explained that parents cannot be named as a provider of provision within Section F. The Tribunal accepted that there would be times where Y would prefer his father to provide some of his support, and therefore decided that wording should be used that did not name a parent, but at the same time did not exclude them from providing support if so desired. The Council’s subsequent decision about whether or not to secure the provision by paying X to do so was therefore not connected to the appeal to the Tribunal.
33. X said he alone could deliver the provision because he was the only person that was a trusted adult when the EHC Plan was issued. The Council disagreed. It decided to secure the provision using a tutor from a professional provider.
34. I acknowledge X disagreed with the Council’s decision. However, I find no fault in the way the Council made its decision. This is because the evidence shows it had regard to his views and wishes. It said it decided to use a professional tutor because they could be a trusted adult, and for quality assurance and safeguarding reasons.
35. Because I find no fault in how the Council made its the decision, I cannot question whether that decision was right or wrong, in line with paragraph 4.
36. The Council was required to secure the outreach provision within 5 weeks of the Tribunal’s decision, by the middle of December 2024. The evidence shows it started trying to appoint a tutor from late 2024. It contacted the tutor already working with Y. When that tutor did not confirm availability, the Council consulted several other professional providers. However, it had not secured an available tutor when the EHC Plan was issued. It partially upheld elements of X’s complaint due to this failing. The Council’s failure to secure a tutor when the EHC Plan was issued is fault.
37. I have decided the Council’s fault did not cause injustice. This is because I find the evidence shows, on the balance of probabilities, X would have refused any professional tutor secured by the Council because he thought only he could do the role. Therefore, if the Council had found a professional tutor, the outcome for Y would have been the same.

b) Complaint the Council failed to properly consider input from Y and X when completing the plan following a Tribunal decision.

38. This part of X’s complaint is about how the Council amended and issued Y’s EHC Plan after the Tribunal hearing in October 2024. I have focused on the Council’s completion of Section F of Y’s plan. This is because the substantive part of the complaint is about decisions the Council made to secure the special educational provision in Section F.
39. This is directly connected to the appeal to the Tribunal because its decision of November 2024 ordered the Council to amend and issue Y’s EHC Plan with specific wording in sections B, F and I.
40. The law says we cannot investigate any matter which was part of, or connected to, the appeal to the Tribunal. This part of X’s complaint is therefore out of my jurisdiction.

c) Complaint the Council did not handle his complaints properly when it failed to clearly explain why X could not deliver the provision.

41. The Council addressed X’s opinion that only he could deliver the outreach element of Y’s educational provision in its stage one and two complaint responses. It explained it considered the tutor already working with Y was a suitable person to deliver the provision. It also explained it appoints professional providers to deliver educational provision for quality assurance and safeguarding reasons.
42. I acknowledge X’s opinion that the Council’s explanation is inadequate, and that he disagrees with its decision. However, I find the Council’s complaint responses provided a suitable level of explanation. Therefore, I do not find the Council at fault.

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Decision

43. I do not find the Council at fault for deciding to appoint a professional tutor to deliver the special educational provision in Y’s EHC Plan or for its complaint handling. I cannot investigate how the Council completed the EHC Plan because it was linked to the Tribunal appeal and is therefore out of our jurisdiction. I find the Council at fault for failing to secure special educational provision in Y’s EHC Plan, and I uphold that element of X’s complaint. I find the fault did not cause injustice.

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Investigator's decision on behalf of the Ombudsman