Summary: Mrs B complained that the Council delayed providing funding to the School named in her son’s Education, Health and Care Plan to enable it to put the special educational support in place. We found the Council at fault which caused C to miss out on essential educational support and Mrs B significant distress. The Council ahs agreed to apologise to Mrs B and C and make a symbolic payment to them.

The complaint

1. Mrs B complained that West Sussex County Council (the Council) in respect of her son, C, delayed providing funding to the school named in his Education, Health and Care (EHC) Plan for the provision detailed in that Plan. This meant the school was unable to put the provision in place and Mr and Mrs B borrowed money to pay the fees.
2. She says this caused distress to her and her husband and C to miss out on a term of special education support. Mrs B also complained that the Council failed to take any responsibility for the delay and said it was the school’s responsibility to arrange provision which caused Mrs B additional frustration and time and trouble.

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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 the 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)

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How I considered this complaint

5. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
6. Mrs B 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

Special educational needs

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. 

Maintaining the EHC Plan

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)  

What happened

10. Following a successful appeal to the Special Educational Needs and Disability (SEND) Tribunal, the Tribunal issued a consent order in March 2025 requiring the Council to issue a final EHC Plan within five weeks. The Council issued the EHC Plan on 23 April naming the School in section I. Section F detailed the required support including 1:1 classroom support along with speech and language therapy and occupational therapy sessions.
11. On 30 April the School emailed the Council to advised it had received the EHC Plan but it had not received any contract or funding so was unable to put the extra support in place as it needed to recruit a member of staff.
12. On 6 May Mrs B’s advocate also complained to the Council about the lack of funding and provision. They said the School was seeking payment of the fees from Mr and Mrs B. The Council liaised with the Tribunal team on 7 May and submitted a payment request to the finance team.
13. On 14 May the Council responded to the School saying a payment request had been submitted. On 15 May the School said it had not received any payment. On 19 May the advocate complained again.
14. On 20 May the Council responded to the advocate at stage one of its complaints procedure. It said it did not dispute that the Council was responsible for the fees from the date of the EHC Plan (23 April) and the matter was in the hands of the finance team. It said it could not make a finding on the complaint as the payment of fees was an administrative error and not unsatisfactory customer service.
15. Mrs B’s advocate escalated the complaint on 22 May. They pointed out that the Council was in breach of its statutory duty, since 23 April, to ensure the specified provision was in place. They confirmed it was not in place and that it was the Council’s responsibility to ensure that it was provided.
16. The Council responded at stage two of its complaints procedure on 26 June 2025. It said it could not make a finding on the communication between the Council and the School and the advocate could suggest the School makes a complaint if it was dissatisfied. It said it had not been ‘explicitly implied’ that the School was not making the specified provision and Mrs B’s advocate had only complained about the payment of fees not the provision for C. It did not uphold this part of the complaint but said it would liaise with the school to determine whether provision was being made and if not ensure catch -up provision was arranged. It said until the School informed the Council otherwise it was reasonable for it to assume the support was in place.
17. The complaint response went on to say payment had been made to the School on 7 June and there was no indication that support had not been provided.
18. The Council raised a purchase order on 7 June. The School chased up funding on 19 June. It confirmed that it had not been able to provide the 13 hours of 1:1 support specified in the EHC Plan as it needed to recruit a member of staff and needed the funding. On 24 June the Council sent a contract to the School with the proposed funding, The School queried these saying they did not relate to the information from the Tribunal. On 9 July the School provided an invoice but said the 1:1 support (the main element of the provision) was missing from the contract.
19. On 30 July the School returned a signed copy of the contract and a corrected invoice with the 1:1 support included.
20. The Council did not pay the fees for the summer term until 4 February 2026. In the meantime, Mr and Mrs B had borrowed money from Mr B’s employer to cover the fees as they were worried C would not be able to attend the school without payment.

Findings

21. It was the Council’s responsibility from the 23 April 2025 to ensure that the provision specified in section F of C’s EHC Plan was in place. The School informed the Council on 30 April that it could not put the main element of the provision (the 1:1 support) in place because it had not received any funding from the Council to enable it to recruit a member of staff. Mrs B’s advocate informed the Council on 22 May that neither C’s 1:1 support nor OT and SALT therapies were in place, as the School had not received any funding. The School again informed the Council on 19 June that the 1:1 support was not in place due to a lack of funding.
22. So, I am satisfied that the Council knew from 30 April that the specified provision was not in place and it should have taken steps to ensure that it was. The failure to do so was fault which caused C to miss out on essential support for a whole term and caused significant distress to Mr and Mrs B, who felt compelled to pay the school fees for a term.
23. There is also no evidence that the Council ever asked the School to confirm what provision was in place between 23 April 2025 and 4 February 2026 or whether catch-up sessions would be appropriate as it promised to do in its stage two complaint response. This was further fault which exacerbated the injustice caused to Mrs B and C.
24. The complaint responses were inadequate as neither of them addressed the readily available evidence that the Council had been aware since 30 April that the provision was not in place. The stage two response also said payment had been made on 7 June, which again was not true. Payment was not actually made until 4 February 2026, over nine months later and although this falls outside the period of my investigation, I note the Council has provided no explanation for this excessive and frustrating delay.

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Action

25. In recognition of the injustice caused to Mrs B and C, I recommended the Council within one month of the date of my final decision:
• apologises to Mrs B and C and makes a symbolic payment of £1000.
• reminds complaint-handling staff of the need to consider and interrogate all the available and relevant evidence, before reaching a conclusion that the Council has acted without fault.
26. The Council has agreed to the recommendations and should provide us with evidence it has complied with the above actions.

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Decision

27. 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