Summary: Mrs X complained the Council failed to secure the content of her child, Y’s, Education, Health and Care Plan. We find the Council at fault for failing to secure the provision detailed in Y’s Education, Health and Care Plan. This caused Y and Mrs X distress and frustration and impacted Y’s access to education. The Council has agreed to apologise and make a symbolic payment.

The complaint

1. Mrs X complained the Council failed to secure the content of her child, Y’s, Education, Health and Care Plan following a Tribunal order in May 2024. Mrs X told us the matter has caused her frustration, time and trouble and uncertainty. Mrs X also told us Y’s access to education has been impacted. Mrs X would like the Council to secure the content of Y’s Education, Health and Care Plan.

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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 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. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b), 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 Mrs X and the Council as well as relevant law, policy and guidance.
7. 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

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. In accordance with Regulation 44 of the Special Educational Needs and Disability Regulations 2014, where the Tribunal orders a Council to amend an EHC Plan, the Council should issue the amended Plan within 5 weeks of the order being made.
10. 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)  
11. 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

12. The following is a summary of key events. It is not intended to be a detailed chronology.
13. The SEND Tribunal issued an order for the Council to amend Y’s EHC Plan in May 2024. In accordance with the SEND Regulations, the Council should have issued the final amended Plan no later than the second week of June 2024.
14. The Council issued Y’s final amended Plan in the third week of July 2024. This is a delay of approximately five weeks.
15. Y’s Plan detailed she should receive 25 hours per week of ‘education otherwise than in a school’ (EOTAS), made up of the following provision:
• 10 hours per week of one to one tuition.
• Mentoring intervention for one hour per week.
• Therapeutic interventions for up to 10 hours per week.
• Access to physical activities for two hours per week.
• Appropriate IT equipment to support the delivery of Y’s provision.
• 45 minutes of speech and language therapy per week.
• 1 hour of occupational therapy per week.
16. The final Plan included a detailed personal budget breakdown which set out how the provision detailed in Y’s EHC Plan should be funded.
17. By the end of August 2024, Y was only accessing speech and language therapy and mentoring intervention.
18. Y’s occupational therapy and tuition did not begin until September 2024.
19. By the beginning of February 2025, Y was accessing most of the section F provision. Council records show Y was not yet receiving funding for the learning mentor detailed in the Plan.
20. An annual review meeting was held in May 2025. The paperwork from this meeting shows Y was accessing:
• 1:1 tuition in English and Maths
• Animal assisted therapy
• Forest school
• Speech and language therapy
• Occupational therapy
• Learning mentor
21. In July 2025 the Council agreed Y required a full EOTAS package for the next academic year. This funding was agreed during a panel meeting in August 2025.

My findings

22. The Council failed to issue Y’s final amended EHC Plan within the 5 week timeframe. This is fault which meant Y missed out on education for approximately half a term.
23. The Council failed to secure funding to ensure Y had access to the provision detailed in her EHC Plan from the date it was issued. Although some parts of the provision were funded from the end of August 2024, funding was not secured for the majority of Y’s EHC Plan until April 2025. The delay is fault which meant Y did not have access to the special educational provision detailed in her EHC Plan for approximately two school terms. The delay also caused distress and frustration for Y and Mrs X.
24. The Council approved funding for Y’s full EOTAS package from August 2025, however Y’s mental health needs prevented her from accessing the provision. I do not find the Council at fault for its delivery of Y’s section F provision from August 2025.

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Action

25. Within one month of the final decision the Council will:
• Apologise to Y and Mrs X for the injustice caused by the faults identified. 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 £3,200 to Mrs X for the injustice caused by the delay in issuing Y’s final Education, Health and Care Plan and securing the funding for the special educational provision detailed in the Plan. This is calculated in line with our guidance on remedies for instances where fault has caused a child or young person to miss out on educational provision.
26. The Council should provide us with evidence it has complied with the above actions.

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Decision

27. 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