Summary: The Council secured the one-to-one support provision set out in the Education, Health and Care Plan of Miss X’s child, Y. The Council was not at fault.

The complaint

1. Miss X complained the Council failed to secure the specialist one-to-one educational support set out in her child, Y’s, Education, Health and Care (EHC) Plan. Miss X said the Council funded 25 hours of support, when Y’s school week was 32.5 hours and Y needed one-to-one support at all times. Miss X said this meant Y could not attend full-time education, which affected their sleep and meant Miss X had less time to study. Miss X would like the Council to secure the support detailed in Y’s Plan and fully investigate her complaint.

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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. 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. 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).
5. 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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How I considered this complaint

6. I considered evidence provided by Miss X and the Council, as well as relevant law, policy and guidance.
7. Miss 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

The Law

Education, Health and Care (EHC) Plans

8. 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. 
9. 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).
10. 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

11. Y had an EHC Plan, which the Council reviewed in October 2024. At the time, the Council was funding 25 hours a week of one-to-one support for Y. Y’s school said it was giving Y 33 hours of support a week, so Y was receiving full-time one-to-one support. Following the review meeting, Y’s school asked for more funding from the Council to cover the shortfall in hours funded for Y’s one-to-one support. The Council’s Special Educational Needs and Disabilities (SEND) panel reviewed the request in January 2025 and said it did not agree there was enough evidence that an increase in funding was needed.
12. The Council finalised the EHC Plan in January 2025. Section F of the final Plan stated Y needed one-to-one support from an adult throughout the day “where necessary”. The Plan also said an adult would always supervise Y, and other staff members would offer support.
13. Miss X raised a stage one complaint with the Council on 4 April 2025. Miss X contacted the Council again between 4 April 2025 and 8 May 2025 and escalated the complaint to stage two, saying she had not received a stage one response within the Council’s timeframe. The Council responded on 8 May 2025 to apologise for being less than 24 hours over the deadline and said it would send a stage two response to Miss X.
14. The Council responded to Miss X’s stage two complaint on 12 May 2025. The Council apologised to Miss X if she felt she had a negative experience with the SEND service and confirmed why the SEND panel did not agree the funding increase. Miss X remained unhappy and complained to the Ombudsman.
15. The Council has told the Ombudsman that although the Council, the school and Miss X disagreed about the funding needed, Y was receiving the one-to-one support they needed when necessary.
16. Miss X told the Ombudsman the Council added the words “where necessary” during the EHC Plan review in January 2025 and that it previously said “Y requires 1:1 adult support throughout the day”. Miss X said she was not aware of this change until the Ombudsman’s investigation.

My findings

17. The Council is under a duty to secure the provision in Y’s EHC Plan. Y’s EHC Plan says they require one-to-one adult support throughout the day, “where necessary”. The Plan also says an adult will always be there to supervise, with support from other members of staff. The Council is funding 25 hours of one-to-one support for Y, while the school is delivering the rest.
18. Regardless of who is funding Y’s provision, 33 hours of one-to-one support is available to Y. Any dispute over funding is between the Council and the school. The Council secured the one-to-one support in Y’s EHC Plan. The Council was not at fault.
19. Miss X is also unhappy the Council added the words “where necessary” to the January 2025 EHC Plan. Miss X had a right of appeal over the content of Y’s EHC Plan, which I consider it was reasonable for her to use. We will not investigate this aspect of Miss X’s complaint.

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Decision

20. I find no fault causing injustice.

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Investigator's decision on behalf of the Ombudsman