Summary: Mrs X complained the Council failed to provide her son, Y, with the support ordered by the Special Educational Needs and Disabilities (SEND) Tribunal. She also complained the Council disregarded professional advice when reviewing Y’s Education, Health and Care (EHC) Plan. The Council was at fault in delaying implementing some parts of the Tribunal Order. This distressed Mrs X and her family and Y missed provision. The Council has agreed to make a financial payment.

The complaint

1. Mrs X complained the Council failed to provide support specified in her son, Y’s, EHC Plan following a SEND Tribunal Order and disregarded professional advice in the annual review. Mrs X says this caused distress for her family and missed provision for Y.

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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. 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)
4. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
5. 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)
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. 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

8. I have exercised discretion to consider Mrs X’s complaint from December 2023 when the Council issued Y’s final revised EHC Plan following the Tribunal decision. I reference events prior to this for context in this matter. I am satisfied there are good reasons why Mrs X did not complain to the Ombudsman earlier.
9. I have not investigated matters that occurred before December 2023. These are late and there are no good reasons to investigate.
10. I have not investigated Mrs X’s complaint the Council disregarded professional advice in the annual review of Y’s EHC Plan. Mrs X had a right of appeal to the SEND Tribunal if she considered the content of the Plan was flawed due to any failures to consider professional advice. It was reasonable for her to have used her right of appeal.

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How I considered this complaint

11. I read Mrs X’s complaint and spoke to her about it on the phone.
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 the opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Background Information

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 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)  

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. 

16. 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) . If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
17. There is a right of appeal to the Tribunal against a council’s:

• 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; and
• decision not to amend an EHC Plan following a review or reassessment.

What happened

18. This is a summary of events, outlining key facts and does not cover everything that occurred in this case.
19. In February 2023 the Council issued a final EHC Plan for Y.
20. In May 2023 Mrs X lodged an appeal to the SEND Tribunal against the EHC Plan.
21. In November 2023, the Tribunal partly upheld Mrs X’s appeal and ordered the Council to amend the EHC Plan to include:
• Direct speech and language therapy (SALT) for Y
• 25 hours per week 1-to-1 support for Y in school
• Daily sensory diet programme for Y delivered by a teaching assistant and Occupational Therapist (OT)
22. In December 2023, the Council issued the final amended EHC Plan.
23. The Council started providing SALT for Y in line with the amended EHC Plan in January 2024.
24. The Council agreed funding in February 2024 to provide 25 hours per week 1-to-1 support for Y in line with the amended EHC Plan. Y’s school provided this from February 2024.
25. The Council agreed funding in July 2024 for an OT to support Y’s sensory integration therapy sessions in line with the amended EHC Plan.
26. The Council appointed an OT to support Y’s sensory integration therapy sessions in September 2024.
27. The school reviewed Y’s EHC Plan in September 2024. The Council decided it would maintain the plan.
28. Mrs X contacted the Council in October 2024 to challenge its decision not to amend Y’s EHC plan
29. The Council told Mrs X in November 2024 it would maintain Y’s EHC Plan.
30. Mrs X asked for mediation for Y in November 2024. She disagreed with the Council’s decision not to amend Y’s EHC Plan.
31. Mrs X complained to the Council in January 2025. She complained about several issues with Y’s EHC Plan. This included the Council not carrying out the Tribunal’s amendments.
32. The Council completed mediation in January 2025. The Council agreed to amend Y’s EHC Plan.
33. The Council responded to Mrs X’s complaint in February 2025. The response accepted the Council delayed completing some Tribunal actions. The Council apologised to Mrs X for the uncertainty and upset this had caused to the family. The Council offered Mrs X £800 for delays in Y’s sensory diet programme.
34. Mrs X was not satisfied with the response. She asked the Council to escalate her complaint in March 2025.
35. The Council issued its stage 2 complaint response in March 2025. The stage 2 response confirmed there had been unnecessary delay following the Tribunal Order. The Council offered an increased remedy payment of £1,000.

My findings

Delays in implementing Tribunal Order

36. The Tribunal ordered Y’s EHC Plan to include:
• Direct speech and language therapy (SALT) for Y
• 25 hours per week 1-to-1 support for Y in school
• Daily sensory diet programme for Y delivered by teaching assistant and Occupational Therapist (OT)
37. The Council issued the final revised EHC Plan in December 2023. As stated in paragraph 15, the Council should have ensured Y received the provision in the plan.
38. The Council started SALT for Y in January 2024. This was a delay of one month after issuing Y’s revised EHC Plan. This is fault.
39. In February 2024, the Council agreed to provide funding for Y’s school to deliver 25 hours 1 to 1 support for Y. The school provided this from February 2024. This was a delay of two months after issuing Y’s revised EHC Plan. This is fault.
40. The Council appointed a daily sensory diet programme OT in September 2024. This was a delay of 9 months after it issued Y’s revised EHC Plan. This is fault.
41. The Council’s delay in implementing parts of Y’s EHC Plan distressed Mrs X and her family and Y missed provision. The delay is likely to have impacted on Y’s ability to engage with the school curriculum.
42. The Council accepted in response to Mrs X’s complaint it delayed implementing parts of the Tribunal Order for Y. The Council apologised to Mrs X and offered to pay a remedy of £1,000. I do not consider this to be a suitable offer for the injustice the faults caused. I am recommending a payment of £1,500 in line with our guidance on remedies.
43. Following previous investigations, the Council explained the steps it is taking to improve the logging, monitoring and tracking of SEND Tribunal compliance. I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Action

44. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Pay Mrs X £1,500 to recognise the injustice the delays in Y’s EHC Plan provision caused to Mrs X and Y.
45. The Council should provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman