Summary: The Council was at fault. It did not secure all the special educational provision set out in Mr X’s child, Y’s, Education, Health and Care Plan over a three-month period. The Council will make a symbolic payment to Mr X for Y’s lost special educational provision and education to which they were entitled. The Council has already put in place an action plan to improve its service.

The complaint

1. Mr X complained the Council failed to secure the provision set out in his child, Y’s, Education, Health and Care (EHC) Plan since mid-March 2025 and failed to make appropriate alternative provision while Y could not access education. Mr X said as a result, Y’s education and welfare suffered and the family experienced anxiety, frustration and distress. Mr X said Y did not receive all the provision to which they were entitled. Mr X was also unhappy with the Council’s complaint response delay.

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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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

6. Mr X complained about events starting in March 2025. I have investigated the period from late February 2025 when the Council issued Y’s first Education, Health and Care (EHC) Plan and ended the investigation in late May 2025 when the Council issued its final complaint response to Mr X.
7. This investigation does not consider any issues with delivery of special educational provision to Y between June and July 2025. As explained in paragraph three of this decision the Council should have an opportunity to respond to any issues before we look at them. As in June 2025 the Council took some action to arrange educational support for Y, Mr X should raise any concerns about this period with the Council first.

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How I considered this complaint

8. I considered:
• the information Mr X provided about his complaint;
• the information the Council provided and its response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
9. Mr X and the Council had an opportunity to comment on the draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

10. 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 special educational needs and disabilities (SEND) Tribunal or the council can do this. Section F sets out the educational provision needed by the child or young person and section I sets out the educational placement.

Maintaining the EHC Plan

11. 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).
12. 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 its legal duty. At a minimum we expect it 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.

Education otherwise than at school

13. Education otherwise than at school (EOTAS) is a form of education where the child or young person receives provision wholly outside of a school setting. It can be made up of several different kinds of provision. A council may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school (Children and Families Act 2014 section 61(1)).

Complaints handling

14. Within the investigation period the Council followed a three-stage complaints process as follows:
• Stage one: the target timescale for stage one complaint responses was up to 10 working days. If it was not possible to respond within the timeframe it would contact the complainant to explain why.
• Stage two: the target timescale for stage two complaint responses was 10 working days. If it was not possible to provide a full response within the timescale the senior manager would contact the complainant and give a date by which the full response would be provided.
• Stage three: the target timescale for stage three complaint responses was 10 working days. If it was not possible to provide a full response within the timescale the Chief Executive or delegated senior officer, would contact the complainant and give a date by which the full response would be provided.

What happened

15. Y lives with their family and has special educational needs including autistic spectrum disorder (ASD), difficulties with social communication, emotional regulation and sensory needs.

Background

16. Y was on roll at a mainstream primary school, School 1 from September 2018. Y’s attendance at School 1 declined. Y stopped attending School 1 in September 2024 although Y remained on roll at School 1 until July 2025. Y’s father Mr X said Y stopped attending School 1 because the school and Council were unable to meet Y’s needs which included significant sensory needs, physical regulation and access difficulties. He said the lack of reasonable adjustments and support meant School 1 was unsafe for Y.
17. In mid-February 2025 the Council put in place alternative provision with a one-to one tutor, Tutor 1, for Y.

Late-February 2025 onwards

18. In late February 2025 the Council issued Y’s first Education, Health and Care (EHC) Plan. Section I named a special school, School 2 from September 2025. The key parts of Section F in this Plan included the requirement for Y to receive:
• Occupational therapy (OT) throughout the school day. It said adults would follow the OT recommendations including access to ear defenders, reduction of bright lights, safe space in classroom, access to fidget toys, accessible toilet, routine explained for the day and gradual bespoke package for reintroduction to school;
• meet and greet at the start and end of the school day;
• Social Emotional Mental Health (SEMH) sessions for one hour per week for a minimum of six weeks;
• a toolkit of strategies for anxiety for 30 minutes weekly;
• participation in social skills programme with a small group of peers for one hour weekly;
• one to one Speech and Language Therapy (SALT) sessions for 30 minutes a day with a trusted adult following SALT recommendations;
• a communication plan;
• support from adults with maths and reading comprehension for 30 minutes each over the week for one term including a review;
• adapted Personal, Social, Health, and Economic (PHSE) sessions for 30 minutes weekly for one term; and
• safety strategies for 30 minutes weekly for one term.
19. Mr X said the Council failed to secure all Y’s section F provision and there were significant periods when Y did not receive a meaningful education. Mr X said the Council arranged a tutor for Y but the tutor was not suitably trained or experienced to deliver Y's section F provision because they did not understand Y’s complex needs, did not follow the strategies and requirements of Y’s section F provision and did not deliver the education in an accessible way.
20. In early March 2025 Mr X emailed the Council and asked for an urgent review because of concerns with Tutor 1. Mr X told me the Tutor 1 provision broke down in mid-March 2025 and then the Council failed to provide a replacement tutor.
21. Two days later Y’s Council casework officer, Officer 1 contacted Tutor 1 recruitment agency explaining Mr X’s concerns that Tutor 1 was not suitable because of Tutor 1’s ASD understanding. Officer 1 also contacted alternative tutoring companies and requested a tutor who had experience of working with autistic children. The recruitment agency confirmed it was looking for a new tutor for Y.
22. In early April 2025 Mr X made a formal complaint to the Council. He said Y had not received a suitable education for over three weeks and he had not been given confirmation about a qualified tutor who would be available for the start of the summer 2025 term. Mr X said this was a statutory breach by the Council. Mr X said he wanted a suitable tutor in place for the start of the summer 2025 term, an update on Y’s provision and a contingency plan to be put in place.
23. The Council acknowledged Mr X’s stage one complaint and said it would respond within 10 working days and by mid-April 2025.
24. In mid-April 2025 the Council told Mr X that it needed to extend the stage one complaint response timescale for a further 10 working days until early May 2025 to allow the investigation manager enough time to complete their investigation. Mr X was unhappy with the Council’s response and escalated his complaint to stage two of the Council’s complaint process. The Council accepted Mr X’s request. A new Council manager was allocated to investigate at stage two with a response date of early May 2025. Mr X was unhappy about the proposed stage two response date.
25. In mid-April 2025 Officer 1 left their post at the Council. The Council said there was a delay in organising another Council case worker for Y which delayed communication with the alternative tutoring companies.
26. In early May 2025 Y’s new Council case worker, Officer 2, sourced two alternative providers and contacted the family. Mr X ruled out one of the alternative education providers because it was not home-based. Mr X agreed to meet with the other alternative education provider, AP1, before it was commissioned.
27. In early May 2025 the Council sent Mr X its stage two response. It said:
• it apologised for the delays since Mr X submitted his original complaint and that he had to wait over four weeks for a response;
• it apologised for the delays in finding a suitable replacement tutor for Y;
• it would take action including recruitment to essential roles to increase capacity, a review of practices so that support to children was delivered in an efficient manner and improved communication with parents to ensure they were informed of any delays; and
• a potential new alternative education provider, AP1, had been found for Y and a start date would be confirmed as soon as Mr X confirmed suitability.
28. Mr X remained unhappy with the stage two response and escalated it to stage three of the Council’s complaints process.
29. In mid-May 2025 Officer 2 contacted AP1 which said it was still searching for a suitable tutor for Y. Officer 2 emailed Mr X with the update. Mr X was unhappy with Officer 2’s response. Mr X told Officer 2 that Y currently had two hours provision per week of support from a specialist practitioner sourced by the Council. He said the specialist practitioner was not a tutor and did not provide an academic package for Y. He said they helped Y with their preparation for their transition to the special school named in their EHC Plan from September 2025. He said School 1 was not providing any home learning resources for Y.
30. In late May 2025 the Council sent Mr X its stage three complaint response. It apologised for the delays to Y’s alternative provision placement and lack of clear communication from the Council. A Council manager had been tasked to consider the breakdown in communication and prevent a recurrence in future. The Council confirmed it would put in place a package of one-to-one tuition for Y with AP1 for up to 15 hours per week. A start date for AP1 tutoring was being arranged and it said a weekly attendance and progress report would be sent to Mr X, School 1 and the Council to enable monitoring of the provision to take place. It gave the Ombudsman’s contact details if Mr X remained unhappy.
31. Mr X remained unhappy and contacted us.

My findings

Missed section F provision

32. The Council issued Y’s first EHC Plan in late February 2025. It did not name a school in section I of Y’s Plan between late February 2025 and the end of the academic year in July 2025. By not naming a school setting in section I of Y’s EHC Plan until September 2025, the Council effectively decided Y should be educated other than in school between the end of February and the end of July 2025. The Council had a legal duty to arrange education and put in place Y’s section F provision from late February 2025 when the Council issued their final EHC Plan. In late February 2025 the Council had put in place Tutor 1 for Y and provided some education to Y. There is no clear evidence which provision from section F of Y’s EHC Plan was delivered to Y by Tutor 1 during their tutoring sessions in the first two weeks until mid-March 2025. In mid-March 2025 Tutor 1 stopped working with Y because they did not have suitable experience working with autistic children, such as Y. Between mid-March 2025 and late May 2025 the Council kept communicating with Mr X and made every effort to find a suitable alternative tutor for Y but was unsuccessful. Mr X’s request to meet the new tutor suggested by the Council meant there was a further delay in arranging tutoring for Y in May 2025.
33. For two hours a week Y received support from a specialist practitioner sourced by the Council. The specialist practitioner was not a tutor and did not provide an academic package for Y. They helped Y with their preparation for their transition to the special school named in the EHC Plan from September 2025. This was part of Y’s section F provision but there were no records when this provision started or finished.
34. The Council’s failure to secure delivery of education and section F provision to Y was fault and meant Y did not receive education and special educational provision to which they were entitled. This was also an important school year for Y, the last year of their primary education.

Complaints handling

35. Mr X complained to the Council in early April 2025. The Council did not respond at stage one of the Council’s complaints process and agreed to escalate the complaint to stage two of its complaints process, it provided its stage two response in early May 2025 which was just over four weeks from when Mr X complained. The Council’s delayed response was fault which caused Mr X frustration but the Council kept Mr X informed of the timescales for the response and apologised to Mr X which was an appropriate remedy for the injustice caused to him.

Service improvements

36. The Ombudsman has already made service improvement recommendations to this Council on similar cases. As a result of earlier complaints to us the Council has agreed to provide the Ombudsman with a copy of the Special Educational Needs service improvement plan to be implemented from September 2025. It has also agreed to provide the Ombudsman with an update on its action plan. The service improvements have been made during and since the events in this investigation. Therefore, I have not repeated the service improvements as we will continue to monitor this through our case work.

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Action

37. Within one month of the final decision the Council will, pay Mr X a symbolic payment of £1,700 to acknowledge the impact of Y’s lost education and section F, special educational provision between late February 2025 and late May 2025. This remedy was calculated in line with the Ombudsman’s guidance on remedies and considered Y’s circumstances at the time.
38. The Council will provide us with evidence it has complied with the above actions.

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Decision

39. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman