Summary: Mrs X says the Council failed to provide the education and physiotherapy provision set out in her child’s Education, Health and Care Plan. She reports this issue has caused her child a great deal of distress and Mrs X has had to pay for physiotherapy provision herself. We found the Council at fault. It did not fulfil its responsibility to provide the provision fully. It should apologise and make payments to Mrs X to recognise the injustice caused.

The complaint

1. Mrs X says the Council failed to provide the education and physiotherapy provision set out in her child’s Education, Health and Care (EHC) Plan.
2. Mrs X reports the school informed her in November 2024 that it could no longer meet her child’s needs however the Council failed to put in place alternative provision. She says the physiotherapy provision offered was not appropriate.
3. Mrs X says the issue has caused her child a great deal of distress and she has had to pay for physiotherapy provision herself.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
8. I have also considered the relevant statutory guidance, as set out below. In addition, I have considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

9. 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.
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. 

12. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this, and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
13. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure.
14. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.

What happened

15. Mrs X says that her child did not receive any education provision from September 2024 through to September 2025.
16. A SEND Tribunal hearing took place in November 2024. Shortly after the hearing, the school named in the EHC Plan informed Mrs X that it could no longer support her child in attendance. Mrs X says that her child stopped attending school physically at this point but received some online provision up to February 2025. She confirms the online provision did not meet the needs of her child as listed in their EHC Plan.
17. The Council say that alternative provision was agreed with the school in December 2024.
18. In February 2025 an early review into the EHC Plan took place where the school confirmed it could not provide the provision set out in the EHC Plan. In June 2025, the Council says that it attempted to put in place alternative SEN provision however Mrs X refused this. Mrs X says the tutor was not qualified in English and Maths and was only a pastoral liaison tutor. Also, the change of tutor at short notice, was upsetting towards her child.

Analysis

Alternative provision

19. The Council has a non-delegable duty to provide the provision listed in the EHC Plan. I note the Council say that it was the school’s responsibility to provide the provision, as the child was on its attendance roll. However, as stated above, this does not remove the Council’s responsibilities if the school does not provide the provision.
20. I accept that Mrs X’s child was provided some provision for the winter term of 2024 and the spring term of 2025. However, the Council has been unable to evidence the provision provided fully met the needs listed in the EHC Plan which are extensive. I therefore consider the failure to provide the provision fully to be fault by the Council.
21. This has impacted Mrs X and her child and caused them an injustice. The failure to provide the provision fully would have been distressing and Mrs X would have felt that she and her child were not being treated fairly.
22. I have therefore considered our guidance on remedies regarding missed provision. I have considered that Mrs X’s child was not in a key year of education (such as taking examinations) and she did receive some limited provision. However, I have also considered that her needs set out in the EHC plan were extensive. I have therefore found the Council should provide an award of £1,000 per term (winter and spring).
23. After the school stopped providing online provision in March 2025, I note there was an added dispute into the tutor arranged by the Council in June 2025. However, this also means that Mrs X’s child did not receive provision for most of the summer term of 2025. The Council has also failed to show the provision offered would have fully met the needs set out in the EHC Plan.
24. I again consider this to be fault by the Council which has caused Mrs X and their child an injustice in the form of distress. I have therefore found the Council should apologise to Mrs X for the injustice that she has experienced. Also, in line with our guidance on remedies I consider that a payment of £1,500 would be appropriate for the summer term of 2025. In total therefore the award I make for failed provision comes to £3,500.

Physiotherapy provision

25. Mrs X says that her child did not receive the physiotherapy provision listed in their EHC Plan. She has provided a statement showing payments made to a private physiotherapist for the period of September 2024 to September 2025.
26. After March 2025 when the Council accepted the school could no longer provide the provision set out in the EHC Plan, it attempted to arrange a physiotherapist. I note that Mrs X rejected this, as she stated that the physiotherapist lacked the experience, in treating children, especially those with the extensive needs of her own child.
27. However, the EHC Plan states the provision could be provided by a teaching assistant in conjunction or with the support of a physiotherapist. Whilst I understand the concerns of Mrs X, I consider the Council’s offer to provide a physiotherapist directly to provide the provision to be sufficient from that stated in the EHC Plan.
28. There is a time where no physiotherapy provision is provided. This is from November 2024 when Mrs X’s child stopped attending school fully until June 2025 when the Council procured and offered the physiotherapist. For this time, I consider the Council liable to pay for the provision sourced by Mrs X for physiotherapy. This is because it had the duty to provide this provision listed in the EHC Plan.
29. The invoices for the period come to £1,407 and I therefore find the Council should repay Mrs X for this amount. I cannot find however the Council should be liable for the remaining invoices, because it did attempt to secure the physiotherapy provision from June 2025 onward.

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Action

30. Within four weeks of my final decision, the Council has agreed to:
1. Provide a written apology to Mrs X for the unnecessary and avoidable distress caused by the failure to provide fully the provision set out in the EHC Plan for September 2024 to September 2025.
2. Pay Mrs X £3,500 for the failure to provide full appropriate alternative provision for the period of September 2024 to September 2025.
3. Pay Mrs X £1,407 for the failure to provide the physiotherapy provision for the period of November 2024 to June 2025.
31. 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.
32. The Council should provide us with evidence it has complied with the above actions.

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Decision

33. I find fault causing injustice. I find the Council should apologise and make payments to Mrs X.

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Investigator's decision on behalf of the Ombudsman