Summary: Mrs X, in respect of her son Mr Y, complained that the Council failed to meet with her to discuss the draft Education, Health and Care Plan, failed to attend a mediation meeting and failed to ensure the special educational provision was in place. It also delayed in responding to her complaints. We found fault which caused Mr Y to miss out on essential support at college and Mrs X distress.

The complaint

1. Mrs X complained that Kent County Council (the Council) in respect of Mr Y’s Education, Health and Care (EHC) plan:
• failed to comply with its statutory duty to meet Mrs X to discuss the draft EHC Plan issued on 24 February 2025;
• failed to comply with its statutory duty to attend the mediation meeting arranged for 6 May 2025 after the final EHC Plan had been issued;
• failed to contact Mrs X after the meeting to explain the non-attendance;
• failed to ensure the section F provision in Mr Y’s EHC Plan since 23 September 2024 was in place at college; and
• delayed in responding to her complaints.
2. Mrs X said Mr Y missed out on essential therapies and support at college. She also said she has been caused significant distress by the Council’s lack of engagement and meant she missed out on her opportunity to appeal to the SEND tribunal about the final EHC Plan.

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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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(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)

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What I have and have not investigated

6. I have investigated the period from 23 September 2024 when the EHC Plan was issued to 30 October 2025 when we decided to investigate the complaint.

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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 considered any comments before making a final decision.
9. 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

10. 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

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. 

Mediation

13. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation.

What happened

14. Mr Y has had an EHC Plan for a number of years and was studying at a college.
15. Following a successful appeal to the SEND Tribunal, the Council issued an EHC Plan for Mr Y on 23 September 2024. The Plan included:
• Speech and language therapy (SALT): 30 minute sessions once a week initially for eight weeks and then to be reviewed at least three times a year.
• Occupational therapy (OT): three OT sessions per academic year, six hours in total.
• Learning support assistant (LSA) in the classroom and for some extra small group sessions.
16. The college held an annual review on 29 January 2025. This confirmed that SALT was in place but not OT. The Council received the annual review papers in mid-February and issued a draft amended EHC Plan on 24 February.
17. On 28 February Mrs X sent in comments on the draft Plan and requested a meeting.
18. On 7 March the Council refused to hold a meeting citing heavy caseloads as a reason. The same day Mrs X complained about the refusal to hold a meeting which was a statutory requirement, about the failure to include all her changes in the Plan and that the section F provision was not in place.
19. On 11 March the Council issued the final plan. Mrs X complained again and requested a mediation meeting. On 13 March the Council referred the case to the OT team to arrange the specified provision. On 23 March Mrs X contacted the Council to say that more LSA support was in place than she had previously thought but the communication from the college was poor.
20. The OT started in April 2025.
21. The Council did not attend the mediation meeting on 6 May. Mrs X made a formal complaint.
22. On 17 June a second mediation meeting was held which the Council and Mrs X attended. An action plan was agreed. On 19 June the Council requested an officer work with the college to support the college and monitor the special educational provision.
23. The Council responded to the complaint at stage one of its complaints procedure on 15 July 2025. It apologised for refusing to meet with Mrs X after the draft EHC Plan was issued and it also apologised for failing to attend the first mediation meeting. It confirmed that SALT had been in place on days when Mr Y was in college from 14 March and it had made a referral to the OT team on 13 March.
24. On 17 July Mrs B escalated her complaint. The SALT team confirmed Mr Y’s sessions were progressing well and he had met his targets.

Complaint to us

25. Mrs X complained to us in September 2025. We sent the complaint back to the Council to respond to her at stage two of its complaints procedure. We decided to investigate the complaint on 30 October 2025 as the Council had not responded to the complaint.

Complaint response

26. The Council responded on 3 November. It apologised for not arranging a meeting after the amendment notice. It acknowledged it was statutory duty and that staffing pressures was not an adequate reason t refuse. It also agreed it was unacceptable that no one had attended the first mediation meeting and that no explanation had been provided. It said this was due to an internal administrative oversight and staffing pressures.
27. It also apologised for not arranging OT in a timely manner. It said this was due to nationwide staffing issues and it had been unable to meet its statutory duty to ensure OT provision was in place. The new referral in March was meant to rectify this and not cause not alarm to Mrs X. It confirmed the OT provision had been in place since April 2025.
28. It offered a symbolic payment of £1800: £1500 for the missed OT and £300 for distress caused by the delays.
29. Mrs X in response to a draft of my decision said she does not consider that nationwide staffing issues affected the OT provision as Mr Y has had the same OT for over a decade and it was more to do with a failure by the college to arrange the sessions.

Findings

Refusal to meet/attend the mediation meeting

30. The Council has accepted it was wrong to refuse to meet with Mrs X after the draft EHC Plan was issued and not to attend the first mediation meeting or provide an explanation for this. I agree this was fault which caused Mrs X frustration. It also delayed her ability to appeal to the Tribunal against the final EHC Plan.
31. However, a second mediation was held approximately six weeks later which produced an action plan and the Council arranged for the special education provision to be monitored from this point. So, I do not consider any further injustice was caused.

Section F provision

32. In terms of provision the annual review meeting in January 2025 said that Mr Y was receiving SALT and OT support. However, there was no evidence of any OT being provided until April 2025, so Mr Y was without this for two terms. There is a SALT report from March 2024 supporting the provision of SALT. But in March 2025 Mrs X said the SALT was only available on Thursday when Mr Y was not in college. The Council confirmed that this had been resolved in mid-March 2025 and by July 2025 it is clear he had been receiving SALT for the summer term. So I have concluded Mr Y was without SALT for almost two terms. Mrs X confirmed in March that the LSA support was in place.

Complaint delay

33. The Council says it aims to respond to complaints within 20 working days. It took nearly two months to respond to Mrs X’s stage one complaint and four months at stage two. This was fault which caused additional distress to Mrs X.

Remedy

34. I consider the Council’s payment of £1800 is a proportionate way of resolving the complaint and is in line with our Guidance on Remedies, so I will not recommend any further action.

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Decision

35. I find fault causing injustice. The Council has already taken action to remedy injustice.

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Investigator's decision on behalf of the Ombudsman