Summary: There was fault by the Council. It took too long to issue a final Education Health and Care Plan, and it failed to secure the out -of-school social activities in line with the Plan. It also failed to deal with Mr X’s complaint about this effectively. This caused Mr X distress, frustration and uncertainty, and meant his daughter did not get all the provision she was entitled to. The Council is reviewing gaps in provision. It will also apologise to Mr X and make symbolic payments in recognition of the injustice caused to him and his daughter.

The complaint

1. Mr X complains that the Council:
• Took too long to issue the final Education Health and Care (EHC) Plan for his daughter following the annual review in February 2024; and
• Failed to make the provision in the EHC Plan to support his daughter to socialise.
2. Mr X says that the delay and lack of provision has significantly impacted his daughter and her ability to socialise outside of her familiar care, so that she found these interactions more and more difficult. Mr X says that the Council’s shortcomings have also impacted significantly on his mental health, particularly around dealing with the Council.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), 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)

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How I considered this complaint

5. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
7. 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 found

The law and guidance

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. 

11. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. Following the review meeting the council must issue a decision to either amend, maintain or cease to maintain the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
12. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
13. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

What happened

14. This is a summary of the main events. It does not include everything that has happened. I have investigated events from January 2024 to April 2025.
15. Mr X’s daughter, K, is disabled and she has special educational needs, as well as social care needs. She has an EHC Plan which sets out the provision she needs at school. The Plan also includes that the Council’s social care service will fund a personal assistant of 100 hours per year to support K with socialising, as well as a fortnightly activity club.
16. In February 2024, K’s school held an annual review of her EHC Plan. This mentioned that there was a lack of respite care provision, and that K’s family wanted her to have access to social activities, but she would need two personal assistants to support her in the community.
17. In July, K had stopped attending the fortnightly club because she was not able to manage this and the club could not meet her needs. Her parents had requested a social care assessment and the Council noted that although K’s mother was taking her to a youth club each week, there were a lack of clubs that could meet her needs to attend without her parents.
18. The Council should have notified Mr X of its decision to amend the EHC Plan by 27 March, and issued the final amended EHC Plan by 24 April. Instead the Council did not issue the final Plan until 9 September, nearly 20 weeks too late.
19. The final EHC Plan said that as well as the personal assistant and fortnightly activity club, the Council would arrange regular social activities outside of school.
20. In December 2024, Mr X asked the Council about the social activities set out in the Plan, as there had been no progress on these. The Council sent Mr X a list of clubs but he told it this was not sufficient because K would need support to attend any club. He said that the provision was included in the EHC Plan specifically because there were no clubs she could access, and she would need social activities.
21. In January 2025, the school held the usual EHC Plan annual review meeting. Again, Mr X told the meeting that K would like to go to community groups, after school and holiday clubs. He said the lack of social interaction was having a profound impact on her, so that her behaviour was very challenging outside of school and family. The annual review meeting noted that there was a personal assistant working with K and it would see if they could support K to attend suitable groups.
22. Mr X continued to ask the Council for help for K to attend out of school activities. In February 2025, the Council reassessed K’s social care needs and it doubled her personal assistant funding so that it would now pay for two assistants. The aim would be for these to support K to go to a club or to allow her to meet a peer outside of home or school. The increased provision was approved in May 2025.
23. At the beginning of March, Mr X complained to the Council that in 2024, it had not issued the final Plan in time, and it did not put the extra provision in place in accordance with the final Plan.
24. The Council responded to Mr X at the beginning of April. The Council said it was continuing to look for out-of-school clubs or activities for K, but this is dependent on a suitable provider coming forward. It also said that there were initial delays in the 2024 review process, but it had followed the correct process. It apologised for this but did not uphold Mr X’s complaint.
25. The Council issued the new final EHC Plan on time, in April 2025. This did not include a provision of regular social activities outside of school. The new Plan also did not set out the same social care provision. Instead it said that it would refer K for a new social care assessment. As set out above, the social care assessment had already taken place and had recommended that K receive 200 hours of support from two personal assistants to help her access social activities outside of school. This provision started in May.
26. Mr X asked the Council to consider his complaint at stage two of its process. He said the Council should have upheld this. The Council responded to Mr X’s stage two complaint. It said that the stage one complaint response had correctly found that the Council had taken too long to review the EHC Plan, and agreed that as such, it should have upheld the complaint.
27. The Council has explained to Mr X that there is no set process for identifying gaps in provision but on an individual basis, a child’s annual EHC Plan review, its Child in Need review, or a single assessment will identify unmet need. The Council said it has recognised there is a need for more out of school provision and it is currently conducting a review of this that will inform future development and commissioning. The Council is monitoring the review through senior leadership and the Special Educational Needs and Disabilities Board.

Was there fault by the Council causing an injustice to Mr X and K?

28. There was fault by the Council. It took too long to issue the Final EHC Plan after the review meeting in February 2024. It was nearly 20 weeks late and so this was significant delay.
29. I appreciate that K was in school throughout this time, and was receiving provision in line with the existing EHC Plan. However, it is clear from the review meeting, that there was an issue around respite care and out of school activities, and Mr X had hoped that a new Plan would address this.
30. The 2024 EHC Plan set out additional provision of out of school activities which was to address that K could not access clubs at that time. Had the Council not delayed, then K would have been entitled to this additional provision from April 2024, instead of from September 2024. The Council’s delays also caused Mr X distress, frustration and uncertainty.
31. Once the Council had issued the EHC Plan, it failed to secure the out of school activities in line with this. The Council has not shown that it always did enough to secure any other kind of provision that could meet K’s needs to socialise outside of school. This was fault. I appreciate that there was a lack of providers suitable for K, but the Council’s failure to make sure the provision on the Plan was made, was service failure, even if it made its best efforts to do so. Again, this meant that K missed out on the provision in her Plan, and caused Mr K distress, frustration, and uncertainty. The Council’s duty to secure out of school activities ended when it issued the new EHC Plan in April 2025, because this Plan removed that provision.
32. The Council mishandled Mr X’s complaint to it. It should have upheld his complaint at stage one. It also failed to acknowledge the impact on Mr X and K of its failings.
33. It is for the Council to make sure it has or can arrange provision to meet needs. The Council knows there are gaps in its provision and so it is reviewing what is available so that it can make sure that services are developed and commissioned to meet needs.

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Action

34. All our remedies aim to try to put the person back in the position they would have been if the fault had not happened. When we identify there is still significant unremedied injustice arising from the fault, we can ask the organisation to make a payment to symbolise and acknowledge the injustice the person has been put through because of what it did wrong.   
35. The Council has agreed that within one month of the date of this decision it will:
• Apologise to Mr X for the impact on him and his daughter of its failings. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Make a symbolic payment to Mr X of £150 in recognition of the time and trouble he was put to when the Council did not deal with his complaint properly
• Make a symbolic payment to Mr X of £500 in recognition of the impact on K and her family of the missed provision between April 2024 and April 2025.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I find fault causing injustice. The Council has agreed to take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman