Summary: Ms X complained that the Council failed to secure provision set out in her daughter’s Education, Health and Care Plan. The Council is at fault for failing to secure the provision from February 2025 to July 2025. This caused avoidable distress and frustration to Ms X and her daughter. The Council has agreed to apologise, make a symbolic remedy, and make a service improvement.

The complaint

1. Ms X complained the Council failed to ensure provision set out in her daughter, Y’s, EHC Plan was delivered. She says as a result, she and Y suffered significant distress, and Y suffered loss of provision which has impacted her emotional wellbeing and development. Ms X was also put to time and trouble trying to resolve the matter. She wants an apology and for the Council to improve its monitoring processes to prevent recurrence.

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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 s34H(1), as amended)
4. 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.
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 Ms X and the Council as well as relevant law, policy and guidance.
7. Ms 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

Relevant guidance and legislation

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 which includes Section F: The special educational provision needed by the child or the young person.
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 has an Education, Health and Care (EHC) Plan. Section F of Y’s EHC Plan included emotional support to be delivered by a trained Emotional Literacy Support Assistant (ELSA). This included three 15-minute weekly sessions at school.
12. In February 2025, Y’s ELSA left their position at the school. There was no other trained member of staff available to deliver the provision.
13. Ms X submitted a stage one complaint in March. She said the Council had failed to deliver Y’s special educational provision and asked for this to be arranged immediately.
14. The following week, the Council held Y’s annual EHC Plan review. The Council said it discussed the ELSA provision at the review but could not identify any immediate resolution at that time as there was no suitably trained staff member at the school.
15. The Council issued its complaint response in April. It said it had not been aware the ELSA provision was not in place until Ms X’s complaint. It said it had not been able to identify ELSA provision during the EHC Plan review meeting, but it was content that, as an interim measure, Y had been accessing the school’s nurture group daily. It said this offered similar support to the ELSA provision, though this was not delivered by a trained ELSA. It said the nurture sessions lasted between 10 and 15 minutes and took place on a one-to-one basis, or in small groups depending on Y’s needs on any given day.
16. The Council said Y’s SEND keyworker would continue to work with the school to ensure the ELSA provision was put into place. This included finding a staff member who could receive ELSA training. However, the Council said it did not agree there had been a breach in the delivery of the provision set out in Y’s EHC Plan and it considered the impact on Y had been minimal.
17. Ms X escalated the complaint to stage two of the Council’s complaint process. She said the Council’s delayed awareness of the missing provision was not a justification for its failure to ensure the ELSA was provided. She also said it had not offered any remedy for the missed provision or acknowledged the impact of this on Y.
18. The Council issued its stage two complaint response in May. It agreed with Ms X that the interim support was not a like for like replacement for ELSA provision, and said the school continued to look for a suitable staff member to undertake the ELSA training. However, it did not accept there had been a breach in the delivery of Y’s provision since she had accessed alternative emotional support, which it considered a suitable alternative. It stated Ms X had provided no evidence to support the serious impact she claimed this had on Y.
19. Ms X approached the Ombudsman in May.

Analysis

20. The Council had a statutory duty under Section 42 of the Children and Families Act 2014 to secure all the special educational provision set out in Y’s EHC Plan. That duty remained with the Council, even where Y’s school faced capacity or delivery issues.
21. The Council has acknowledged Y’s ELSA provision was not delivered from February to June 2025. I am satisfied it only knew about the issue in March. It is at fault from then onwards.
22. Despite this, the Council does not accept it breached its Section 42 duties and denies that the missing provision significantly affected Y. It said this is because it considers Y received appropriate interim provision from February to June, including daily 10–15 minute ‘nurture’ sessions delivered either one-to-one or in small groups, based on her needs.
23. Ms X says that no nurture provision, or any other interim provision, was in place for Y at all. However, I have reviewed records provided by the Council and can see that nurture sessions are recorded on Y’s timetable of provision. It is therefore likely, on the balance of probabilities, that some emotional support provision was in place, albeit not from a trained ELSA.
24. However, in response to the Ombudsman’s enquiries, the Council said the nurture sessions were already in place before the ELSA left. It is therefore clear the Council did not put the nurture provision, or any other provision, in place as an interim measure to mitigate the impact of the missing ELSA provision.
25. The Council appears to have relied on the school’s assurance that the nurture provision was comparable to ELSA provision, and that it would identify a suitable staff member to receive ELSA training in the future. Consequently, the Council took no further action to secure the ELSA provision, nor did it take reasonable steps to ensure suitable interim provision was in place for Y. There is also no evidence it continued to monitor the provision in the following months. This is fault.
26. Ms X says Y suffered significant emotional distress and dysregulation without ELSA support. While I cannot assess the extent of the impact, it is likely there was some impact, since ELSA support is delivered by a trained staff member, and was included in Y’s EHC Plan and therefore considered necessary. Based on evidence provided by the Council, the nurture provision Y received appears similar in frequency, duration and content to the ELSA provision. This likely mitigated the impact on Y, and the injustice caused is less than if no provision had been in place at all. Nevertheless, the nurture sessions were not equivalent to ELSA provision and were not delivered by an ELSA trained staff member.
27. The Council did not acknowledge any impact on Y, nor did it offer any remedy or apology in recognition of the impact. When a council fails to secure provision in an EHC Plan, we would expect it to offer a remedy to recognise loss of educational opportunity and resulting distress. The Council’s failure to do so is an additional shortfall. I have recommended a suitable remedy below.

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Agreed action

28. Within one month of the final decision, the Council has agreed to:
1. Apologise to Ms X for the distress and uncertainty caused by the identified fault.
2. Make a symbolic payment of £150 in recognition of the loss of provision caused by the identified fault. This is lower than our usual amount for missed special educational needs provision given the facts of this case outlined above.
29. Within two months of the final decision the Council has agreed to:
1. Review its decision making and identify gaps in oversight in this case, and outline lessons learned and what it will do in the future to ensure provision in a child or young person’s EHC Plan is delivered.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I find fault causing injustice for which I have recommended a suitable remedy.

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Investigator's decision on behalf of the Ombudsman