Summary: The Council failed to secure all the provision in an Education, Health and Care (EHC) Plan and while it offered a financial remedy at local resolution, this did not fully reflect the amount of provision missed. The Council has agreed to increase the remedy and make service improvements.

The complaint

1. Ms X complains the Council failed to communicate with her child’s school to ensure special educational provision in an Education, Health and Care (EHC) Plan was in place.
2. Ms X complains her child missed out on specialist dyslexia support between February and May and, while the Council agreed to provide a financial remedy, Ms X says this was inadequate and provision continued to be missed.

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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. 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.
5. 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))
6. 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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What I have and have not investigated

7. I have investigated the alleged missed provision from February 2025 to July 2025, when the Council provided its final complaint response.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
10. 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

11. An annual review was held in December 2024, no concerns about provision were recorded.
12. In January 2025, Ms X raised concerns with the Council her child’s 1:1 teaching assistant was being diverted to work with other pupils. The Council contacted the school which confirmed the provision would be available as set out in the EHC Plan going forward.
13. The Council issued a final EHC Plan for Ms X’s child in February 2025. This added provision including an hour of specialist dyslexia teaching per week.
14. Ms X complained to the Council in March 2025 the Council had not secured all the provision in the Plan despite her repeated attempts to resolve this. Ms X says the Council was citing funding and administrative issues which were not a valid excuse. Ms X asked the Council to instruct the school to put the provision in place immediately while any funding issues were resolved. Ms X said the delay was causing harm to her child’s education.
15. The Council responded at stage one of the complaint procedure in April. It said it had not been aware the school had not put all the provision in place until it received Ms X’s complaint. The Council said it had confirmed funding processes with the school and the school confirmed all provision was in place except dyslexia teaching which was starting after Easter.
16. The Council provided an apology for failing to secure provision. Ms X asked for the complaint to go to stage two.
17. The Council responded at stage two in early July 2025. It acknowledged missed dyslexia sessions and offered a symbolic financial payment of £210 for 5 missed sessions and a £200 time and trouble payment. The stage two response noted that 10 dyslexia sessions had in fact been missed. I asked the Council why its remedy was based on 5 sessions and it said this was the number of sessions missed at the time of the stage one response in April.
18. The Council’s stage two response said it had determined adequate funding had not been paid to school to secure the provision, but this would happen when the school provided invoices. The Council said it would follow this up with the school before the summer holiday. There is evidence to support the delay was on the side of the school in submitting invoices.
19. Ms X remained concerned whether the mechanism of submitting invoices, and the Council’s use of banding, would ensure continuous support was in place.

Relevant law and guidance

20. 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)  
21. 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. 

Analysis

22. The Council investigated concerns about teaching assistant support in January and received assurance from the school provision would be made in line with the Plan.
23. The Council issued an amended EHC Plan in February 2025 with additional specialist provision but failed to secure this provision. It has accepted this was fault and apologised. It offered a £200 time and trouble payment and £210 for five missed sessions. However, its own evidence is that 10 sessions were missed. The Council should have updated the payment at stage two to reflect this.
24. The Council has agreed funding with the school (via banding) for the main support in the Plan. The Council has confirmed Ms X’s child always had 32.5 hours teaching assistant support funded and available in addition to specialist provision funded separately. Invoices were required for specialist teaching and therapies only, which would then be refunded. This was agreed with the school in late March, following receipt of Ms X’s complaint. The school did not raise any concerns about being paid this way or say it would prevent provision being secured. It is not unusual for schools to put provision in place ahead of funding being received. Councils are also allowed to use banding mechanisms provided these are sufficient for schools to secure the support in EHC Plans.
25. There was no reason for the Council to believe provision agreed in January and March would not be put in place by the school and I would not have expected the Council to have done anything further unless concerns became apparent at annual review or via a further complaint. We would not expect councils to get involved in the day-to-day education of a child which is within the school’s remit.
26. The evidence supports it was the school that was slow to submit invoices and not the Council that was late paying.
27. I find the Council has accepted fault for 10 missed dyslexia sessions, but there is no evidence other support was not secured.

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Agreed Action

28. Within four weeks of my final decision, the Council will increase its remedy payment from £410 to £620 to acknowledge twice the number of dyslexia sessions were missed.
29. Within two months of my final decision, the Council will ensure it has a robust process in place to check that when additional provision is added to an EHC Plan it follows up with the setting that this has been secured and has a system to record that such checks are completed.
30. The Council will provide us with evidence it has complied with the above actions.

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Decision

31. 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