Summary: Miss X complained the Council did not provide the education detailed in her child’s Education Health and Care Plan. Miss X says this impacted her child’s education and emotional wellbeing and caused her unnecessary distress. We find the Council at fault which caused injustice. The Council has agreed to apologise and make a payment to Miss X to remedy the injustice.

The complaint

1. Miss X complains about the Council’s handling of her child, Y’s, education. Specifically, she complains the Council:

1. Delayed providing a school place for her child;
2. Did not provide the education provision set out in Y’s Education Health and Care Plan; and
3. Communicated with her poorly.

2. Miss X says this impacted Y’s education and emotional wellbeing. She says it also caused her unnecessary distress and frustration.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(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)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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How I considered this complaint

6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
8. 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

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. 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. 

Delay providing school place (part a of the complaint)

10. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  

Provision (part b of the complaint)

11. 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)  
12. 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.

What happened

13. Y has an EHC Plan. The Plan says Y should be educated in a mainstream school. It says the school should provide adult support for Y in small groups and one to one.
14. In September 2024, Miss X told the Council that Y was moving to the Council’s area in December 2024. She asked the Council to arrange education for Y in line with their EHC Plan.
15. In mid-December, Y moved to the local area.
16. In late December, the Council received Y’s documentation from Y’s previous council.
17. In early January 2025, the Council consulted with schools.
18. In late January, the Council provided Y with a school place. The school agreed it could provide Y’s 30-hour package of additional adult support. The school place was made available to Y the next working day.
19. In March, Miss X told the Council the school had not received the funding needed to provide Y with the provision set out in the Plan.
20. In early April, Miss X contacted the Council again regarding the funding for Y’s provision.
21. In April, the Council completed an annual review of Y’s Plan. The school told the Council it was providing the provision set out in the Plan. There were no requests to amend the provision.
22. In late April, Miss X again told the Council it had not provided the funding to the school for Y’s education provision and Y was not accessing the provision set out in the Plan. The Council told Miss X it was investigating delays in funding. It told her it did not expect any funding delays to impact on the provision offered to Y.
23. Miss X made a formal complaint and told the Council that Y was not receiving the provision set out in their Plan. She also complained about the Council’s poor communication.
24. In June, the Council issued its stage one complaint response. It apologised to Miss X for its poor communication. It told Miss X it had provided the full funding to the school to fund Y’s provision as set out in their Plan. It apologised it had not completed an annual review.
25. Miss X escalated her complaint to stage two. She again told the Council that Y was not receiving the full 30 hours package of support per week. She told the Council it had completed an annual review.
26. In July, the Council issued its stage two complaint response. It told Miss X that it was providing funding for the full 30 hours of support detailed in Y’s Plan. It also apologised for its poor documentation of the annual review process. It agreed it had completed an annual review.
27. In September, Y received the provision set out in their Plan.

Analysis

Delay providing school place (part a of the complaint)

28. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Code says when a child moves to a new council area, the Council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move. The Council received Y’s paperwork from the previous council area two days before the Council’s Christmas break and office closure. The Council arranged a school placement for Y which became available within a month of moving to the council area. Miss X complains the school place should have been available before this. I do not consider any delay to be significant enough for a finding of fault.

Provision (part b of the complaint)

29. The Ombudsman recognises it is not reasonable for councils to have oversight of the delivery of every provision, to every child with an EHC Plan, at all times. However, it is reasonable the Council satisfies itself provision has been secured and follows up any concerns of no provision. The Council tells the Ombudsman it was satisfied Y was in receipt of the provision in their Plan because the school agreed it could provide the provision and did not raise concerns with the Council when it reviewed the Plan. However, the Council’s complaint response to Miss X indicates it did not have appropriate oversight over the annual review process, and it tells the Ombudsman the school did not evidence the provision it funded.
30. The Council should have checked whether Y had access to the provision detailed in their Plan given Miss X’s repeated concerns about funding and the lack of provision. The Council did not do so. The Council’s complaint responses indicate it also did not follow up her repeated formal complaints about a lack of provision. There is no evidence it treated Miss X’s concerns with due seriousness. For these reasons, I consider the Council did not demonstrate its due diligence to ensure Y was receiving the correct provision as set out in the Plan. This is fault.
31. Y accessed school from late January 2025. Y did receive some of the adult support provision in their Plan. On balance I consider it is more likely that Y did not have access to all the provision detailed in their Plan, which is fault. I consider this did have some impact on Y’s education, although because of the nature of the support, it is difficult to quantify the amount of support missed and the impact on Y’s education.
32. I also consider the Council’s fault by not treating Miss X’s concerns with due seriousness caused her avoidable and unnecessary distress and frustration. This is injustice.
33. The Council has recently taken service improvement action in relation to another case and provided an action plan to ensure it checks provision is in place for children with EHC Plans and properly investigates concerns of provision not in place. For this reason, I do not consider a service improvement recommendation to be appropriate in this case.

Communication (part c of the complaint)

34. The Council accepts it did not communicate with Miss X effectively and did not respond to her calls and emails. This is fault. This fault caused Miss X avoidable and unnecessary distress and frustration. The Council apologised to Miss X in its complaint response, which also did not properly consider the concerns Miss X raised. For this reason, I do not consider the apology issued sufficiently remedies the injustice.

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Action

35. Within four weeks of our final decision, the Council has agreed to:
1. provide Miss X with a written apology for the avoidable and unnecessary distress and frustration it caused her by not properly considering her communications about lack of funding and provision for Y.
2. make a total payment of £1575 to remedy some lost provision for Y in the spring and summer terms. In arriving at this figure, I considered Y’s personal circumstances and our published guidance on remedies. I consider Y did access school education from late January and did receive some of the provision set out in his plan. I consider this amount is appropriate and proportionate to the level of injustice caused.
36. 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.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman