Summary: The Council secured the provision in Mrs X’s child, Y's, EHC Plan and repeatedly attempted to engage with Mrs X, to put the provision in place. The Council was not at fault.

The complaint

1. Mrs X complained the Council failed to secure the provision in her child, Y’s, Education, Health and Care (EHC) Plan and failed to develop a transition plan to support Y to receive the provision. Mrs X says this has caused her and Y distress. She wants the Council to reimburse her for the provision she has secured and compensate her for the distress caused.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. 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.
5. 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)
6. Mrs X appealed to the Tribunal about extra provision she wanted included in Y’s EHC Plan. I have not investigated Mrs X’s complaint that this provision was not secured, as this has been considered by the Tribunal. I have investigated whether the Council secured the provision in Y’s EHC Plan that Mrs X did not appeal to the Tribunal.

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council have 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

Education, Health and Care (EHC) Plans

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. 
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).

What happened

11. The Council issued a final Education, Health and Care (EHC) Plan for Y at the end of June 2024. The Plan specified an education other than at school (EOTAS) package for Y. This included:
• 10 hours of 1:1 teaching a week from a suitably trained teaching assistant who would also deliver occupational therapist (OT) advised therapies.
• 1 hour a week of specialist autism teaching.
• Access to an online gaming platform to promote social engagement.
• 45 minutes per week of direct speech and language therapy (SALT).
12. In July 2024 the Council contacted Mrs X to introduce the staff who would implement Y’s EHC Plan. It told Mrs X it would like to arrange direct payments for a digital mentoring scheme which would deliver the access to the online gaming platform.
13. Mrs X disagreed with the EHC Plan and appealed to the SEND Tribunal in August 2024. Mrs X appealed the description of Y’s special educational needs in section B of the EHC Plan and the provision outlined in section F. While happy with the existing provision outlined, Mrs X said Y needed additional provision and teaching strategies and a gradual integration into any educational programme. Mrs X said Y also needed support from a mental health professional and would benefit from 1:1 support in an educational setting for particular subjects.
14. In early September 2024 the Council contacted Mrs X again. It detailed the provision that was currently available to Y. It said it had arranged 10 hours of teaching assistant support, 1 hour of specialist teaching and 45 minutes of SALT. It said it was ready to commission an OT and had commissioned the digital mentoring scheme itself as Mrs X had declined direct payments.
15. Mrs X replied to the Council. She said she was pleased the Council had agreed to a slow transition to new professionals and to psychotherapy for Y. She said she had commissioned her own OT as the Council had failed to secure one. She said she also needed a payment for the digital mentoring scheme and subscription fee for the online gaming platform.
16. The Council responded to Mrs X’s email shortly after. It said it had not agreed to psychotherapy for Y and this was not in Y’s EHC Plan. It said it had been waiting for Mrs X to respond so it could put the agreed provision in place. It said it was able to facilitate a transition to its own providers from staff currently working with Y. It said it would not fund OT which Mrs X had commissioned privately. It asked Mrs X to stop commissioning her own provision as it could potentially be damaging to Y if she established relationships that may not last. It said it had commissioned the digital mentoring scheme directly but would not be paying for any online gaming subscriptions.
17. The Council emailed Mrs X again at the end of September 2024 outlining its plan to transition Y to its own providers. Mrs X responded saying the Council was going against advice for a prolonged transition. She said she needed to see an improved transition plan from the Council. She reiterated that she wanted the Council to refund provision she had already commissioned.
18. In October 2024 the Council emailed Mrs X again. It gave details of the staff and provision available to Y, including photos of the staff for Y to see. Mrs X complained to the Council. She said it was not following professional advice and had no plan in place that would support Y in line with professional advice. Mrs X also complained about the actions of the Council’s teacher overseeing Y’s SEN package.
19. In November and December 2024, the Council corresponded with Mrs X over the points of her complaint. The Council responded to Mrs X’s complaint in February 2025. It said the teacher’s role was to oversee the implementation of Y’s EOTAS provision. It said the provision was in place, but Mrs X had chosen not to access it.
20. Mrs X remained unhappy and asked the Council to consider her complaint at stage two of its complaint process. The Council responded at the end of March 2025. It said it was satisfied with its investigation but accepted it was slightly delayed.
21. In April 2025 the digital mentoring programme confirmed what Y needed to do to access aspects of its provision. It said this could be done with an online gaming subscription or via another device. The Council offered Mrs X a laptop to access the provision. The provider confirmed this was suitable. Mrs X complained to the Ombudsman.

My findings

22. The Council was under a duty to secure the EOTAS provision in Y’s EHC Plan from June 2024. When it issued the EHC Plan the Council contacted Mrs X outlining the provision on offer. This provision was in line with the provision set out in Y’s EHC Plan. Over the coming months the Council continued to make this provision available to Y.
23. During this time Mrs X disagreed with the Council’s approach and transition plan for Y. She asked for provision not specified in the EHC Plan to be arranged and insisted on commissioning her own providers. The Council was entitled to only secure the provision specified in the Plan and to commission providers through its own commissioning process. The evidence shows the Council did this and made the provision in Y’s EHC Plan available to Y. The Council was not at fault.
24. Mrs X asked the Council to pay for an online gaming subscription so Y could access this aspect of the EHC Plan. The Council commissioned the digital mentoring scheme direct in July 2024. The scheme raised no concerns with the Council over Y’s ability to access their provision. When Mrs X asked for the online subscription, the Council clarified with the digital mentoring scheme that this provision could be accessed through one of its own laptops. Once it did this it made the provision available to Y. The Council was not at fault.
25. The Council’s complaint response to Mrs X was slightly delayed. However, during this time the Council engaged with Mrs X clarifying her complaint. It waited for Mrs X’s responses before proceeding further. The Council was not at fault.

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Decision

26. I find no fault.

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Investigator's decision on behalf of the Ombudsman