Summary: We have found the Council at fault for failing to ensure Y’s school delivered the provision in her Education, Health and Care Plan. This affected Y’s access to education at school and caused both Y and Mrs X avoidable distress. The Council has agreed to apologise and pay both Mrs X and Y a symbolic payment to recognise their injustice. The Council has also agreed to review and monitor its Special Educational Need Action Plan.

The complaint

1. Mrs X complains the Council did not ensure that her daughter’s (Y) school delivered all the provision required in her Education, Health and Care (EHC) Plan. She said this meant Y was unprepared and unable to access education at school. She said the Council has also been poor at communicating with her causing further anxiety and frustration.

Back to top

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 34H(1), as amended)

Back to top

How I considered this complaint

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

Back to top

What I found

Law and guidance

EHC Plan

6. 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.

Maintaining the EHC Plan

7. 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)
8. 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.

Post-16 – review, provision and naming placement deadline

9. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.

What happened

Background

10. Mrs X’s daughter, Y has an EHC Plan. In November 2023, Mrs X raised concerns with the Council that the school was not delivering the provision in Y’s Plan. The Council investigated and determined that the school was not delivering the right support but did not take any action against the school.
11. Mrs X brought her complaint to the Ombudsman. In August 2024, we found fault with the Council for only partly dealing with Mrs X’s concerns about SEN support for Y.
12. The Council agreed to send us an action plan which sets out how, in future, it will ensure there is clarity in its monitoring of the delivery of special educational needs provision.

New complaint - School year 2024-25

13. The Council issued a final amended EHC Plan in July 2024. This set out the provision that Y needed to support her in her final year at school. The provision included a daily check in with a member of staff. This was to ensure that Y was made aware of timetable, staff or seating plan changes to prepare Y for the day ahead.
14. The Council carried out a post-16 transfer review of Y’s EHC Plan and issued a final amended Plan in February 2025. Section F remained largely unchanged.
15. Mrs X complained to the Council in April that the school was not delivering the provision in Y’s EHC Plan. She set out all the parts of Section F that she considered Y to be missing. Mrs X said that without the correct support, Y struggled to attend lessons and spent a lot of her time in school in the SEND unit.
16. The Council contacted the school who provided a response to each point Mrs X raised. The Council, satisfied with the school’s response, did not uphold Mrs X’s complaint.
17. Mrs X escalated her complaint to stage 2 citing that the Council just accepted the school’s response without requiring any supporting evidence. The Council said the school provided a ‘log of support’ which showed the delivery of Y’s provision. It concluded that it was satisfied that the school had put appropriate support in place and had met the requirements of Y’s EHC Plan.
18. Mrs X brought her complaint to the Ombudsman.

My findings

Missed provision and support

19. As part of my enquiries, I asked to see the school’s ‘log of support’ for the school year (September 2024-July 2025). The Council provided a detailed log of daily records for April and May 2025. The case notes from the school said that the school only felt that it needed to keep a record of the support from April (presumably in response to Mrs X’s complaint).
20. The Council had a duty to make sure that Y received the SEN provision set out in section F of her EHC Plan. As stated in paragraph 8, we consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. The fact that the school did not keep a record of the support until April 2025 indicates that the Council had not asked for evidence of the support until Mrs X complained. This was fault.
21. Given that Mrs X had already complained about missed provision the previous school year and we had found fault, it is more significant. I have considered the cumulative injustice to Y and Mrs X in terms of the distress and impact on Y’s education when making my recommendations.
22. I asked the Council for a record of Y’s attendance including details of the time she spent out of the classroom. The school provided the attendance records but told the Council it did not keep a record of time spent in the SEN unit. The absence of records makes it difficult to determine the extent the missed provision affected Y’s access to education. This in itself is fault. On balance, I am satisfied that Y spent more time than necessary in the SEN unit as she felt unprepared and unable to access education in the classroom. Given that Y was in Year 11, the injustice was more significant. I have reflected this in my recommendation.
23. Y has now left school so her injustice cannot be remedied with the delivery of additional support. The Council has agreed to recognise Y’s injustice in a financial remedy. As Y is now 16, it has agreed to make a payment to her as well as Mrs X.

SEN action plan

24. Our previous remedy asked the Council to send us a SEN action plan. This set out how, in future, it will ensure there is clarity in its monitoring of the delivery of special educational needs provision.
25. The Council has agreed to send us evidence of how it monitored progress against the action plan between October 2024 and present.
26. The Council also agreed to review and update its action to plan to make it more robust in how it monitors schools’ delivery of EHC Plan provision.

Back to top

Agreed action

27. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X and Y for failing to ensure that the school delivered the provision in Y’s EHC Plan.
2. Pay Mrs X a symbolic payment of £500 in recognition of the distress caused by its failure to ensure delivery of provision.
3. Pay Y £3000 for the injustice caused by the missed provision.
4. Pay Mrs X £500 in recognition of the time and trouble she has spent pursuing this complaint.
28. Within 3 months of my decision, the Council has agreed to:
1. Show how it monitored progress against the SEN action plan between October 2024 and present. This should show what evidence the Council requires from schools to demonstrate they are delivering provision.
2. Review and update its SEN action plan to make it more robust. This should show how it could improve on the existing action plan to avoid future missed provision and support.
29. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman