Summary: Ms X complained, on behalf of her son Mr Y, that the Council failed to provide the provision set out in Mr Y’s Education, Health and Care Plan. The Council is at fault for failing to provide special educational provision set out in the Education, Health and Care Plan. This caused Ms X and Mr Y uncertainty and distress, and Mr Y suffered loss of provision. The Council has agreed to apologise and make a symbolic payment.

The complaint

1. Ms X complained, on behalf of her son Mr Y, that the Council failed to deliver the provision set out in his Education, Health and Care Plan (EHC Plan). She says Mr Y has received no education or any of his special educational provision. She also said the Council did not put into place any interim provision during this period.
2. Ms X says, as a result, not only has Mr Y suffered loss of his special educational provision but also significant distress which has had an impact on his mental and physical health.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
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. 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)
9. 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

10. Ms X said the Council has failed to ensure that Mr Y’s provision was in place since 2023. We typically expect people to bring complaints to us within 12 months of first becoming aware of them unless there are good reasons they did not do so. Ms X gave no good reason she did not bring the matter to us sooner, so I have limited my investigation to look at matters from January 2025, when the Council first became aware that Mr Y was not accessing his provision.
11. 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. (R(on application of Milburn) v Local Government and Social Care Ombudsman (2023) EWCA Civ 207). This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
12. 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.
13. Ms X lodged an appeal to the Tribunal in June 2025. She appealed the description of Y’s special educational needs, the special educational provision, and the type of placement in the Plan. She said Y’s current EHC Plan did not accurately reflect his needs. She also appealed on the basis she wanted Y to receive an education other than at school (EOTAS) package of provision, and that the EHC Plan specified provision that assumed attendance at a setting, which she did not consider possible for Y. Ms X’s complaint about the Council’s failure to provide Mr Y with his provision is linked to her appeal to the Tribunal. For this reason, I have investigated matters from the end of January 2025, when the Council became aware Y’s EHC Plan provision was not being delivered, to April 2025, when the Council issued the final EHC Plan and subsequently provided Ms X with her appeal rights.

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How I considered this complaint

14. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
15. 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 legislation

16. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child or young person’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. 
17. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

18. 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)  
19. 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. 

20. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan.

What happened

21. Mr Y has Special Educational Needs (SEN) and an EHC Plan. Mr Y was on roll at a mainstream further education college.
22. In late January 2025, the Council held an annual review of Mr Y’s EHC plan. Ms X told the Council that Mr Y was struggling to attend college due to the early timing of his classes. Ms X said she felt an afternoon timetable would therefore better suit his needs. The Council decided to amend Mr Y’s EHC Plan following the annual review.
23. The following week, the Council emailed the college to ask if it could accommodate Mr Y’s needs by adapting his timetable and scheduling his lessons later in the day.
24. The college responded on the same day. It said it could not accommodate an afternoon timetable due to staff commitments and availability. It also told the Council that Mr Y was not attending, and it asked for potential solutions to help improve his attendance. The Council responded and said the college could request higher needs speech and language therapy (SaLT) funding to help with Mr Y’s attendance.
25. In late February the Council sent Ms X Mr Y’s proposed amended EHC Plan. It had named a mainstream further education setting under section I.
26. In early March, Ms X submitted her representations in response to the proposed amended Plan. She said she did not want a mainstream placement for Mr Y as she did not feel this would meet his needs. She requested an education other than at school (EOTAS) package which included 1:1 tuition, speech and language therapy (SaLT), and therapeutic support.
27. Ms X also submitted a stage one complaint to the Council. She complained about the Council’s ongoing failure to deliver the special educational provision in Mr Y’s EHC Plan. She said she wanted the Council to provide catch up arrangements to address his loss of provision.
28. In mid-April, the Council issued Mr Y’s final EHC Plan. It named the type of placement as ‘Mainstream Further Education’. The Council explained it did not agree with Ms X that Mr Y’s needs could not be met in a mainstream further education setting.
29. Ms X asked the Council to escalate her complaint to stage two, since it had not yet responded to her stage one complaint.
30. At the beginning of May, the Council contacted the college again to see if it had been able to secure SaLT for Mr Y. The college responded on the same day and informed the Council it was unable to meet Mr Y’s needs.
31. The Council issued its stage one complaint response in June. It apologised for the issues Ms X raised. It said since the college was named in Mr Y’s EHC Plan, it was the college’s responsibility to ensure Mr Y received all his educational provision. However, it accepted it had overall responsibility for ensuring the provision was delivered. It said the college had now confirmed it was unable to meet Mr Y’s needs and so it would now consider Ms X’s EOTAS request.
32. Ms X lodged an appeal to the Tribunal in June. She appealed sections B, F and I.
33. Ms X approached the Ombudsman in the same month.
34. The Council issued its stage two complaint response in July. It rejected Ms X’s EOTAS request and said that the provision within Mr Y’s EHC Plan could be delivered within a mainstream college. It said it was in the process of consulting with other local mainstream colleges. It explained if the college confirmed Mr Y was now no longer on its roll due to non-attendance, it would make an immediate referral to its Interim Provision Service (IPS).

Analysis

35. The Council has an absolute and non-delegable duty to secure Mr Y’s Section F EHC Plan provision. While it was to be delivered by the college, the Council was ultimately responsible for ensuring Mr Y’s provision was in place, which it has acknowledged.
36. As explained above, we do not expect a council to maintain a watching brief to ensure every child or young person with an EHC Plan in its area is receiving their special educational provision. However, we do expect councils to take swift action if they become aware provision is not being delivered. Therefore, as soon as the Council became aware at the annual review in January 2025 that Mr Y was not accessing his provision, it should have taken immediate measures to ensure his special educational provision was in place.
37. To its credit, the Council did contact Mr Y’s college to ask if it could amend his timetable to schedule his lessons in the afternoon as Ms X had said this would better suit his needs. However, when it became aware the college could not facilitate this, it should have made an immediate referral to its Interim Provision Service. It did not do this until the end of June, and it did not put any other measure in place to ensure Mr Y was receiving the provision set out in his EHC Plan. This is fault which meant Mr Y did not receive the special educational provision he was entitled to.
38. The college told the Council at the beginning of February that Mr Y was not attending. The college asked the Council whether any measures could be put in place to support his attendance. While I recognise that the Council offered the college higher funding to facilitate SaLT if required, there is no evidence the Council acted on this offer or followed up with the college about the matter until May.
39. While Y’s EHC Plan did not include formal SaLT, it did include communication strategies to be delivered by the college staff. The Council accepts it should still have made sure it arranged provision for Mr Y so he received the communication strategies set out in the Plan. The Council’s delay in communication with the college is fault. It appears the Council relied too heavily on the college to take steps to resolve the missing provision, and in doing so neglected its own duty to ensure Y’s provision was delivered.
40. As explained above, we cannot consider any missing provision beyond April as this is when the Council issued the final EHC Plan and gave Ms X her appeal rights. The Council failed to ensure Mr Y’s EHC Plan provision was in place from February 2025 to mid-April 2025. Excluding the two holiday periods, this equals eight weeks of missed provision. This caused Mr Y a loss of provision, and both Mr Y and Ms X distress and uncertainty about what provision would be put into place and when.
41. The Council said it has already implemented a service improvement which ensures it is notified if a young person loses access to their educational provision, rather than waiting for the annual review. I have therefore not found it necessary to make any service improvements. However, I have recommended suitable personal recommendations below to address Mr Y’s and Ms X’s injustice.

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Agreed action

42. Within one month of the final decision the Council has agreed to:
1. Apologise to Ms X and Mr Y for the loss of provision, uncertainty and distress caused by the identified fault.
2. Pay Mr Y £1100 in recognition of distress, uncertainty, and the loss of his special educational provision from February to April 2025.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman