Summary: Mrs X complained the Council failed to provide her son Y’s school with enough funding to secure the special educational provision in his Education Health and Care Plan, did not meet the statutory timescales when it reviewed the plan, and had poor communication when she raised concerns. She said this meant Y missed a lot of education and caused significant stress and anxiety. We find the Council failed to secure Y’s special educational provision, missed a statutory deadline in the review process and had a poor standard of communication. This caused injustice in the form of missed educational provision, distress and uncertainty. The Council agreed to make a symbolic payment and apologise to remedy the injustice.

The complaint

1. Mrs X complained the Council did not carry out its responsibilities regarding her son Y’s special educational needs. In particular she complains the Council:
1. Failed to secure the special educational provision set out in Y’s Education, Health and Care (EHC) Plan that was issued in February 2024.
2. Did not carry out the annual review of the EHC plan correctly.
3. Had poor communication when it failed to respond to repeated concerns and requests for updates from her and from Y’s school.
2. She complained this meant Y to miss a lot of education and caused significant stress and anxiety.

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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. 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)
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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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)
9. 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

10. I have investigated the Council’s actions from January 2024, shortly before it issued Y’s Education Health and Care (EHC) Plan, until May 2025 when Mrs X complained to us.
11. Matters before May 2024 happened more than 12 months before Mrs X complained to us and are therefore late. However, Mrs X did not let the matter rest for more than a few months, the Council had significant delays in reviewing Y’s EHC Plan, its stage one complaint response did not address one of Mrs X’s primary concerns, and Mrs X complained to us within one month of receiving the Council’s final complaint response. I have decided these are good reasons to exercise discretion to start my investigation from January 2024.

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How I considered this complaint

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

Education, Health and Care Plans

14. 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. 
15. The EHC Plan is set out in sections which include: 

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

Councils’ duty to secure special educational provision

16. 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)  
17. 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. 

Reviewing EHC Plans

18. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or cease to maintain the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
19. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

What happened

20. This is a summary of key events. It is not a detailed chronology of everything that happened. I have expanded on some events in the analysis section.
21. The Council conducted an EHC needs assessment of Y in 2023. It asked a mainstream school if it could provide Y with special educational provision detailed in Section F of a draft EHC Plan. I shall refer to the school as School Z.
22. School Z replied to the Council. It said the special educational provision needed funded 1:1 support and other one-off and annual costs. It provided the Council a ‘costed provision map’. This detailed the amount of money it needed to provide Y’s special educational provision.
23. In January 2024 Mrs X contacted the Council. She said she was not happy because Y could not attend School Z full-time because the Council was not providing the required funding.
24. The Council issued Y’s final EHC Plan on 14 February. It named School Z in Section I. It awarded School Z about half the funding it had said it needed to provide Y’s special educational provision.
25. Also in February Mrs X decided to take Y to a school in a different country for speech therapy. She was worried about the lack of education Y was receiving because of the lack of funding provided by the Council.
26. Also in February, School Z took Y off its school roll because he was attending school in a different country. It had a meeting with an officer from the Council about the situation. The Council told School Z the EHC Plan would be ceased.
27. Mrs X said she emailed the Council in March and asked it to arrange a school place for Y for the start of the next term in September.
28. Mrs X and Y returned home in July. School Z told her Y was no longer on its roll.
29. Mrs X made a stage one complaint to the Council at the beginning of August. She complained the Council had not arranged a school place for Y for the start of term in September. The Council told her Y had a place at School Z. She repeated concerns the Council had not provided School Z with the funds to provide Y with the education he needed.
30. The Council and School Z communicated with one another in August. The Council thought Y was still on roll at School Z. School Z highlighted the meeting in February when the Council had told it the EHC Plan would be ceased. The Council said it found a record of the Council officer providing that information in February, but that it was incorrect. The Council said the EHC Plan was still current and still named School Z.
31. The Council told School Z it should provide Y a place from the beginning of term in September. It asked School Z to hold a meeting to review Y’s EHC Plan.
32. The Council decided to increase the funding to School Z for Y’s special educational provision to commence the beginning of term in September. It awarded School Z about two thirds of the funding it had said it needed in the costed provision map.
33. The Council responded to Mrs X’s stage one complaint at the beginning of October. It said Y had a place at School Z. It said it would hold a review of Y’s EHC Plan. The Council’s response did not address Mrs X’s concerns that Y’s special educational provision could not be met with the level of funding.
34. Mrs X replied to the Council that she was not happy with its response. She said the Council was still not providing enough funding for Y to receive the full time education it had a duty to provide. The Council treated this as a stage two complaint.
35. School Z held a review meeting for Y’s EHC Plan on 21 October. It provided the Council an updated costed provision map. It raised further concerns the Council was not providing the funding it needed to provide Y’s special educational provision.
36. On 11 November the Council decided to amend Y’s EHC Plan. It sent the proposed amendments and a letter to Mrs X. The letter said it aimed to comply with the Code of Practice by issuing an amended final EHC Plan within eight weeks.
37. The Council should have issued an amended final EHC Plan on 6 January 2025. It did not meet this statutory deadline.
38. The Council sent Mrs X its stage two final response on 2 April. It upheld Mrs X’s complaints that Y was not receiving full time education, that it had not increased the funding for School Z, and that it had failed to complete the review of Y’s EHC Plan. The Council apologised and said it was committed to ensuring that Y received the full support he required.
39. Mrs X complained to us on 1 May.
40. The Council issued the amended final EHC Plan on 17 June. This was about 23 weeks after the statutory deadline.
41. On 23 July the Council agreed to provide School Z with the full funds it had requested, backdated to 1 April 2025.

Analysis

42. I have addressed each part of Mrs X’s complaint below.

a) Complaint the Council failed to secure the special educational provision set out in Y’s EHC plan that was issued in 2024.

43. The council had a duty to secure the specified special educational provision (Section F) in Y’s EHC Plan from 14 February 2024.
44. I note the Council’s stage two response of 2 April 2025 upheld Mrs X’s complaint that the level of funding it provided School Z was insufficient to meet Y’s needs. It stated it had been agreed in principle to increase the level of funding to Y’s school to fully meet his needs at that date, but that the process had not been completed.
45. I have considered the special educational provision in Section F of Y’s EHC Plan and the costed provision map School Z gave to the Council before the EHC Plan was issued in February 2024. I find the provision map provides a detailed analysis of the funds required to deliver the special educational provision. I have seen no evidence that School Z’s calculations were wrong.
46. I find the evidence shows the Council did not check the special educational provision is in place when the EHC Plan was issued; nor quickly investigate and act on the complaints and concerns raised that the provision was not in place. 
47. I also note the Council subsequently decided to provide the full funding from 1 April 2025.
48. For these reasons I agree with the Council’s stage two response that the level of funding it provided from 14 February 2024 was insufficient to meet Y’s needs. I find the Council’s decision to provide significantly less funding than detailed in the costed provision map meant it did not meet its duty to secure the special educational provision Y was entitled to. This was fault.
49. This decision is specific to the facts of this case. We would not ordinarily review the funding arrangements between a council and an educational provider. We normally only need to consider whether the provision set out in the EHC Plan was delivered or not. However, in this instance the issue of funding is directly linked to the failure to deliver the provision.
50. The Council’s fault caused significant personal injustice to Y and Mrs X in the form of distress, uncertainty and a loss of special educational provision.
51. I have considered the duration of the fault and injustice. I have decided it started on 14 February 2024 when the Council issued Y’s first final EHC Plan. I have decided it ended on 17 June 2025 when the Council issued Y’s second amended final EHC Plan. I have not investigated beyond that point because the Council amended the special educational provision in Section F of the new EHC Plan and Mrs X had a right of appeal to the Tribunal.
52. I acknowledge the Council backdated the full funding to 1 April 2025. However, the Council did not make that decision until July 2025. I have seen no evidence the backdated funding could have been used to retrospectively secure Y’s special educational provision. Therefore I have decided the decision to backdate the full funding does not change the end date.
53. I note Y attended a school for speech therapy in a different country between February and July 2024. I have decided there is not enough evidence to find, even on the balance of probabilities, the Council’s fault caused Y to miss special educational provision between those dates. This is because I have seen no evidence the Council could have secured provision for Y when he was away, and I cannot say, even on balance, the Council’s fault was the main reason Mrs X decided to take Y to a different country.
54. However, I do find the Council’s fault caused him the injustice of missed special educational provision for about two and a half terms when he was in this country. These were the whole Autumn term in 2024, the whole Spring term in 2025, and about half of the Summer term in 2025.
55. I have considered our Guidance on Remedies. It states where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the harm caused by that loss.
56. In this case the Council’s fault did not cause a total loss of educational provision. It provided about two thirds of the requested funding for the terms in question. I find, on balance, that Y suffered the injustice of a partial loss of educational provision.
57. I have decided to recommend a remedy payment of £300 per term for two and a half terms. Therefore I recommend the Council makes a remedy payment of £750 to acknowledge the harm caused by the loss of educational provision.

b) Complaint the Council did not carry out the annual review of the 2024 EHC plan correctly.

58. I note the Council’s stage two response of 2 April 2025 upheld Mrs X’s complaint that the EHC review process had not been fully completed, and the amendments to the EHC Plan were not fully expedited.
59. The Council failed to issue Y’s final amended EHC Plan by the statutory eight week deadline of 6 January 2025. It did not issue the amended final EHC Plan until 17 June 2025, about 23 weeks after the statutory deadline. This was fault which caused significant injustice to Mrs X in the form of uncertainty and delayed her the right to appeal to the Tribunal.
60. The Council said the delay was caused by two factors. Mrs X requesting amendments to the plan, and restructuring of the relevant Council department. These factors do not affect my findings because neither affects the Council’s duty to follow the statutory timescales of the EHC review process.
61. I recommend the Council apologises and makes a remedy payment of £200 to acknowledge the injustice caused by its failure to meet the deadline.

c) Complaint the Council had poor communication when it failed to respond to repeated concerns and requests for updates from her and from Y’s school.

62. The evidence shows Mrs X, and School Z on Mrs X’s behalf, repeatedly raised concerns with the Council from January 2024 that the level of funding was not enough to secure Y’s special educational provision.
63. There was a gap in Mrs X’s communication between April and June 2024 when Y was attending school in a different country. However, she and School Z regularly communicated with the Council before and after that period.
64. I have seen no evidence the Council communicated with Mrs X about her concerns about the funding in a timely or adequate manner. It did not properly address her concerns until its stage two response of 2 April 2025 when it upheld her complaint the level of funding it provided School Z was insufficient to meet Y’s needs. This was 15 months after she first raised concerns in January 2024.
65. Despite upholding her complaint about the level of funding in April 2025, the Council then took a further three months to increase the funding. I do not find this was a timely or adequate response.
66. For these reasons I find the Council’s communication and responses to Mrs X fell below an adequate standard. This was fault. It caused injustice to Mrs X in the form of frustration and uncertainty. I recommend the Council apologises for the injustice.
67. I have decided not to recommend service improvements. This is because the Council said its relevant department went through significant service changes at the time, which included a whole new staffing structure with recruitment, new IT systems and new processes.

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Action

68. Within four weeks of the date of the final decision the Council should:
1. Apologise to Mrs X for the injustice caused. 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.
2. Pay Mrs X £750 to acknowledge the injustice caused by Y’s missed educational provision. I recommend she use this for Y’s educational benefit.
3. Pay Mrs X £200 to acknowledge the injustice caused by its failure to meet the EHC review process statutory deadline.
69. The Council should provide us with evidence it has complied with the above actions.

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Decision

70. I find the Council at fault for all three parts of Mrs X’s complaint causing injustice for the reasons explained in the analysis section. I uphold Mrs X’s complaint. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman