Summary: There was fault by the Council in failing to secure special educational provision in an Education, Health and Care (EHC) Plan between a review meeting and the EHC Plan being changed. We also find the Council has not provided a sufficient remedy for previous missed provision. The Council has agreed to apologise, make financial payments, and make service improvements.

The complaint

1. Ms X complains the Council:
1. failed to arrange special educational provision in an Education, Health and Care (EHC) Plan from September 2023;
2. Failed to complete a phase transfer and secure a placement for September 2024, so her child could start school alongside their peers;
3. Failed to provide education and special educational provision from July 2024 to January 2025;
4. Failed to secure provision in a final EHC Plan issued in November 2024 up to June 2025 when it amended the Plan;
5. Called an annual review prematurely in March 2025, soon after a Tribunal decision in Autumn 2024.
2. Ms X says her child missed out on education and therapies necessary for their development including provision.
3. The Council has offered a remedy for missed provision for the following periods:
• The gap between a nursery placement in 2024 and starting school in January 2025;
• Missed special educational provision (therapies) between January and March 2025 when an annual review was held.
4. Ms X considers the remedy offered is insufficient.

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The Ombudsman’s role and powers

5. 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)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
8. 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)
9. 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.
10. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
11. We provide a free service but must use public money carefully. Where a Council has investigated, and offered a remedy we consider appropriate, we would not reinvestigate the matter. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
12. 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

13. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
14. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
15. 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

16. I have not investigated the complaints listed in paragraphs 1(a) and 1 (b) above. We have already investigated the period from September 2023 to November 2024 in a separate investigation and issued a final decision statement.
17. For the same reason I cannot investigate missed education or provision for the period September to November 2024, this was considered in our previous investigation. I can only investigate the complaint in 1(c) above for the period November 2024 to January 2025.
18. I have investigated complaint 1(d) above but note it overlaps with 1(c).
19. I have investigated complaint 1(e).
20. I have not investigated after June 2025 when the Council issued an amended final EHC Plan.

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What I found

Relevant law and guidance

21. 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. 
22. 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).
23. The courts have confirmed that after a Tribunal appeal a council has five weeks from the date of the order to issue the amended EHC Plan. The Council must secure the special educational provision in the Plan from the date it is issued. (R (on application of BA) v Nottinghamshire County Council [2021] EWRC 1348 (Admin)).
24. 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 date of an appeal will not alter the ‘anniversary’ of the review.
25. The Council is not allowed to change an EHC Plan without following the proper process for amendment. N v North Tyneside Council [2010] EWCA CIV 135.

What happened

26. Ms X’s child had an EHC Plan naming School A. Ms X brought an appeal against the final EHC Plan that was heard by the Tribunal in Autumn 2024. The Tribunal ordered the Council to amend the EHC Plan and name School B, a specialist setting. The Council did so in late November 2024.
27. School B did not allow Ms X’s child to attend until January 2025, apparently because of time needed to recruit additional staff. The Council did not make interim provision available to Ms X’s child. The Council has accepted this was fault via the local complaint process and offered a symbolic financial payment of £600 to recognise the missed education.
28. Ms X complained to the Council in early 2025 it had failed to secure therapies listed in Section F (special educational provision) of the EHC Plan.
29. The Council called an annual review meeting in March 2025. Ms X says this was premature and was an attempt to remove provision from the EHC Plan ordered by the Tribunal in Autumn 2024, without evidence, before her child had even had an opportunity to access this. The Council issued an amended final EHC Plan in early June 2025. Ms X has appealed to the Tribunal about changes to this Plan.
30. In April 2025 the Council acknowledged that Section F provision was not made, including therapies, and offered a symbolic financial remedy to acknowledge the missed provision of £1200 for the period January to March 2025 only.
31. Ms X considers this financial remedy is insufficient because her child continued to miss out on their Section F provision after the review meeting in March. Ms X says her child was entitled to the provision until the Council ‘formalised the cuts’ in June.

Analysis

November 2024 to January 2025

32. The Council has offered a remedy of £600 to acknowledge the missed education and special educational provision in Section F of the EHC Plan between the issue of the EHC Plan in late November and Ms X’s child starting school at the beginning of January. This was a period of approximately four weeks (taking into account school holidays).
33. In our Guidance on Remedies, when education is missed, we recommend a payment in the range of £900-2400 per term to acknowledge the loss of education and distress caused. A payment at the top of the range should be considered when the child has special educational needs, no education was provided, and additional provision cannot now remedy the loss.
34. I find the Council’s remedy payment is too low as a payment at the top of our range is appropriate.

January to March 2025

35. The Council has accepted fault in failing to secure special educational provision in the EHC Plan between Ms X’s child starting school in early January and the review meeting in early March.
36. The Council offered a symbolic payment of £1200 to acknowledge the loss of several therapies during this two-month period. This takes into account that Ms X’s child was attending school and receiving education and some special educational provision; so, the payment relates only to the missed therapies. In our Guidance we consider a financial remedy for isolated therapies is likely to be lower than that for loss of educational provision generally, and will be based on the level of provision missed, and the impact of this on the child or young person.
37. I consider the offer of £1200 is in line with our Guidance and cannot add to the outcome already achieved for this period.

March 2025 review

38. Ms X considers the review premature, coming so soon after an appeal decision. My understanding is that the original EHC Plan was issued in September 2023. The annual review meeting and the resulting decision therefore had to be completed within twelve months of this date, and thereafter within twelve months of the previous review. It would therefore seem the review was called early. Councils can however legally call reviews at any time. The Ombudsman would not be able to say it was fault when the law provides for councils to do so.
39. Ms X is concerned the Council called an early review so it could remove provision. The Council did remove provision in the Plan, issuing an amended version in June 2025 which Ms X appealed. We cannot comment on the Council’s decision as Ms X has used an alternative remedy to the Tribunal.

March to June 2025

40. There was three months between the review meeting and an amended final EHC Plan being issued which removed some provision.
41. Ms X’s child remained entitled to the provision in the Autumn 2024 EHC Plan up to June 2025, including the therapies, as set out in that version of the Plan.
42. It is not lawful for provision to be stopped or removed from an EHC Plan outside of the review process. (N v North Tyneside Council [2010] EWCA CIV 135). The Council should have continued to secure all the Section F provision, as written in the 2024 Plan, until June 2025. Failure to do so was fault and a breach of s.42 Children and Families Act 2014.
43. In 2024, following a different complaint, the Council agreed to issue a notification to all staff involved with EHC Plans stating that the Council continues to owe the duty to secure the special educational provision in a child or young person's Plan until that Plan is ceased, or a new Plan issued, as this duty applies regardless of the Council's view of whether the provision is necessary or appropriate. It is therefore very disappointing to see the same fault repeated in 2025.
44. The Council’s symbolic payment for the same missed therapy in the previous period was £1200 for two months, which I have found is an appropriate remedy. As the missed provision continued for a further three months, an additional symbolic payment at the same level (£600 per month) is also appropriate for the period March to June 2025.

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Action

Within four weeks of my final decision:

45. The Council will apologise to Ms X for the missed therapy provision between March and June 2025.
46. The Council will pay Ms X £750 for the missed provision between November and January. If the Council has already paid £600 for this period it can deduct this from the payment.
47. The Council will pay Ms X £1800 for the missed therapies between March and June 2025.

Within two months of my final decision:

48. The Council will consider how it will ensure council officers, external professionals and schools know that all special educational provision in an EHC Plan must be secured and continue until such time as a Plan is ceased or changed, given that our previous service improvement has failed to deliver change in this area. The Council will share with the Ombudsman its plan to embed this practice.
49. The Council will provide us with evidence it has complied with the above actions.

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Decision

50. I find fault causing injustice. The Council has agreed actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman