Summary: Mrs X complained the Council failed to secure the special educational provision detailed in her child, Y’s Education, Health and Care Plan. We find the Council at fault for failing to secure the special educational provision detailed in Y’s Education, Health and Care Plan. This meant Y missed out on special educational provision and it caused distress, frustration and uncertainty for Y and Mrs X. The Council has agreed to apologise, make a symbolic payment and complete service improvements to remedy the injustice caused.

The complaint

1. Mrs X complained the Council:
• Failed to secure the special educational provision detailed in her child, Y’s, Education, Health and Care Plan.
• Communicated poorly during the process of securing the special educational provision.
• Delayed in providing responses to her complaints.
• Caused delays during the Tribunal process.
• Poorly managed her subject access request.

Mrs X told us the Council’s actions have impacted the support her child received and her access to learning. Mrs X also told us her child has suffered significant emotional distress, academic regression and anxiety and that the ongoing battle for provision has impacted the whole family. Mrs X would like the Council to fully fund the special educational provision and backdate any withheld funding to the date the original Plan was issued in 2022. Mrs X would also like the Council to acknowledge it has breached its statutory duties, provide compensation, review its funding process and take learning from this complaint to ensure the same failures are not repeated.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
5. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
6. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
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. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
9. 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)
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. Mrs X complained to us in April 2025 about events dating back to 2022. Anything earlier than April 2024 is a late complaint. I have seen no reason Mrs X could not have complained to us sooner, so I have not investigated any matters prior to April 2024.
13. The Council issued a final Education, Health and Care Plan for Y in August 2023. Mrs X appealed this Plan, and the appeal was concluded in March 2025.
14. 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.
15. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
16. As there was an ongoing appeal, I have not investigated the timeframe between August 2023 and March 2025.
17. We cannot investigate the Council’s conduct during an appeal. Therefore, I have not investigated the part of Mrs X’s complaint which relates to the Council causing delays during the appeal process.
18. I have not investigated Mrs X’s complaint about the Council’s handling of her subject access request as the Information Commissioner’s Office is better placed to investigate this part of Mrs X’s complaint.
19. I have investigated the Council’s actions in securing the special educational provision detailed in Y’s Education, Health and Care Plan after the Tribunal order was issued in March 2025. I have also investigated the Council’s communication and complaint handling in relation to this issue.

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How I considered this complaint

20. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
21. 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

Legal and administrative background

22. 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. 
23. The EHC Plan is set out in sections. Section F sets out the special educational provision needed by the child or young person.
24. 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)  
25. 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

26. Following a Tribunal appeal the Council issued an amended, final EHC Plan for Y in April 2025.
27. Section F of Y’s EHC Plan detailed she should receive 1:1 support from a teaching assistant who is experienced and appropriately trained in supporting children with Autism, ADHD and Dyspraxia. This support should be provided for 32.5 hours per week.
28. Prior to issuing the final Plan, the Council completed a cost analysis for the funding required to ensure the named placement could provide the section F provision.
29. Mrs X submitted a statement of complaint to the Council at the end of March 2025. Part of this complaint was that the EHCP funding was not sufficient to secure the specialist teaching assistant detailed in the EHC Plan and the Council had failed to respond to Mrs X’s correspondence about this matter.
30. The Council did not provide a response to Mrs X’s complaint until the middle of June 2025, almost three months after her statement of complaint was agreed.
31. In its complaint response the Council upheld that there had been a lack of timeliness and responsiveness to Mrs X’s communication. The Council offered Mrs X a symbolic payment of £100 in recognition of its poor communication. Mrs X told us she has not accepted this offer.
32. The complaint response does not address whether Y was receiving the special educational provision detailed in her EHC Plan.
33. In response to our enquiries the Council told us it was unable to confirm Y had received the special educational provision detailed in the EHC Plan from the date it was issued in April 2025.

My findings

34. The Council has provided evidence it considered the necessary funding to ensure the named placement could secure the special educational provision detailed in Section F of Y’s Plan. This consideration took place between the Tribunal order and final Plan being issued.
35. The Council has not provided any evidence Y’s special educational provision was secured following the final Plan being issued in April 2025. The Council was aware there was a disagreement about whether the EHCP funding was sufficient to provide the section F provision. The Council did not take any further steps to satisfy itself that Y was receiving the provision detailed in her Plan. This is fault which caused Y to miss out on special educational provision. The fault also caused Y and Mrs X distress, frustration and uncertainty.
36. The Council took three months to provide a response to Mrs X’s statement of complaint. This delay is fault which caused Mrs X distress, frustration and uncertainty.
37. The Council’s complaint response acknowledged its communication with Mrs X was delayed. This is fault which caused Mrs X distress and frustration.

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Action

38. Within one month of the final decision the Council will:
• Apologise to Y and Mrs X for the injustice caused by the failure to secure the special educational provision detailed in Y’s EHC Plan from April 2025. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
• Make a symbolic payment of £900 per term of missed provision from April 2025. The Council will take steps to ensure it is aware of the date on which Y first began to receive the full support detailed in her Plan and calculate the symbolic payment.
• Re-offer Mrs X the £100 symbolic payment detailed in its complaint response to remedy the injustice caused by the Council’s poor communication.
• Make a further symbolic payment of £150 to Mrs X in recognition of the delay in issuing its stage one complaint response.
• Consider whether catch up provision would be suitable for Y to make up for the provision she has missed since April 2025. If Y would be able to access suitable catch up provision the Council will arrange this.
39. Within three months of the final decision the Council will ensure it has a process in place to satisfy itself its section 42 duty is met when parents or schools raise concerns that special educational provision is not being delivered in line with an Education, Health and Care Plan.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. 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