Summary: Mrs X, on behalf of her daughter Ms Z, complained the Council failed to deliver the special educational provision as set out in Section F of the Education Health and Care Plan issued in August 2024. While some education was provided, this did not match what Section F required and therefore did not meet Ms Z’s needs, causing distress and affecting her ability to learn. The Council has agreed to make a symbolic payment.

The complaint

1. Mrs X, on behalf of her daughter Ms Z, complained the Council failed to deliver the special educational provision as set out in Section F of the EHC Plan issued in August 2024.
2. Mrs X says her daughter struggled without the appropriate support which had an impact on the whole family.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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. 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

6. This complaint is about the failure to secure the provision set out in Section F of the EHC Plan. Mrs X has made a separate complaint about delays in the annual review process and so these matters are not considered here.

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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.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

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What I found

EHC Plan 

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. 

Maintaining the EHC Plan

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. 

Key facts

12. This section sets out the key events in this case and is not intended to be a detailed chronology.
13. Mrs X contacted the Council in October 2024 stating her daughter, Ms Z, was not receiving the provision set out in Section F of her EHC Plan. In particular, she said the EHC Plan required the Council to provide “a college course with daily automated lessons/activity to attend online…with access to content at a later date.” The course Ms Z attended was self-study and so did not provide the flexibility for daily lessons to attend online or content to access at a later date. Mrs X also said that she was still waiting for confirmation regarding access arrangements for Ms Z to sit her GCSE exam.

14. In November the Council responded to Mrs X saying it had contacted a school examination officer to confirm the exam arrangements and would update her when a response was received. It also asked if Mrs X had any direct contact details so it could gather more information about what support was needed.
15. Mrs X asked the Council a week later if the Council was paying for the GCSE exam as part of the EHC Plan. Mrs X contacted the Council again eight days later saying she had paid the exam fee of £171 as the deadline had passed and asked the Council to reimburse this.
16. Mrs X emailed the Council again on 21 January 2025 saying she had not received any response to her queries and that Ms Z still required the support as set out in Section F of her EHC Plan. On 28 January the Council told Mrs X that a panel had agreed in August 2024 to pay for the GCSE course but not weekly pastoral support. It asked if there was anything else outstanding. Mrs X replied saying that a pastoral support package had been agreed but the outstanding funding was for academic tutoring and for access to recorded lessons as set out in the EHC Plan. She said Ms Z was due to take a GCSE in May and so needed to access academic tutoring support and recorded lessons. Mrs X also said that she was still waiting for the exam entrance fee to be reimbursed.
17. The Council said there was confusion regarding the invoices received but that the issue of online tuition would be considered at panel on 14 February. Mrs X was not satisfied with this response and said that any delay in funding until 14 February was unacceptable as this was a requirement of the EHC Plan issued on 30 August 2024. She again raised the issue of the exam entrance fee.
18. Mrs X made a formal complaint on 17 February about the failure to secure the provision set out in Section F of the EHC Plan. The Council upheld the complaint acknowledging delays in securing the provision. It noted a meeting was due to be held the following week and hoped that would alleviate Mrs X’s concerns.
19. Mrs X escalated the complaint on 20 March saying she was not satisfied and that the complaint response was inadequate. She said nothing had been done to resolve her issues and a lack of communication continued. She said the meeting mentioned in the stage one response was cancelled and no alternative arranged. Mrs X said that while funding had been agreed this was delayed and is provided on a time-limited basis. She said Ms Z was due to sit her exam in nine weeks and funding had only just been agreed. She also said the Council had still not confirmed if the exam fee would be reimbursed.
20. The Council’s response dated 8 May did not uphold the complaint about the cancelled meeting. It said it had notified Mrs X on 20 March that it would be held on 24 March and as it notified her of the new date within five working days this met its service standard.
21. The letter stated that its panel agreed Section F provision funding for two 30-minute tutorials for the academic year 2024/25 and provided a payment to Mrs X. It said it was unable to make the payment to the education provider directly because it was not on its approved provider list. It said it did not uphold the complaint about the failure to secure Section F provision.
22. Dissatisfied with this response, Mrs X complained to the Ombudsman.

Analysis

23. Mrs X says her daughter Ms Z did not receive the special educational provision set out in her EHC Plan after it was issued in August 2024. The EHC Plan notes that Ms Z’s ability to engage with learning is impacted by her condition and so Section F provision is for a college course with daily automated lessons or activity to attend online. It says these will be structured and explicit about which area of the course is being addressed, with options to access content at a later date. It also requires a tutor/mentor throughout the duration of the course and for subject specific support.
24. The information provided by the Council indicates that the course offered to Ms Z was for self-study and did not include the flexibility for daily automated lessons online that could be accessed at a later date. The evidence also shows that it was not until March 2025 that funding was made available for subject specific support which was then for two 30-minute sessions per week until the end of the 2024/25 academic year.
25. Mrs X raised the inadequacy of the provision as early as October 2024 explaining how it was impacting on her daughter’s ability to learn. The Council did not properly address these concerns until March 2025 when funding for some subject specific support was provided. The Council offers no explanation of why it delayed taking this action.
26. Based on the evidence I have seen, I am not satisfied the Council met its duty to secure the provision set out in Section F of the EHC Plan. This is fault. I consider that a symbolic payment for distress to acknowledge the impact on Ms Z should be provided.
27. Mrs X also repeatedly raised the issue of the exam fee in her correspondence with the Council from November 2024. In response to my enquiries it says that it has no record that this exam fee was ever reimbursed. It says it will contact Mrs X to apologise and arrange reimbursement.

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Action

28. To remedy the injustice caused to Ms Z and Mrs X as a result of the fault identified in this case, the Council will, within one month of my final decision, take the following action:
• Apologise to Ms Z and Mrs X for the fault identified. 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;
• Make a symbolic payment of £500 to recognise the distress caused; and
• Provide evidence that the exam fee has been reimbursed and if not yet paid, ensure this now happens.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman