Summary: Miss X complained the Council failed to provide the education provision listed in her child’s education, health and care plan. We found the Council at fault. It failed to fully provide the provision required which caused Miss X’s child avoidable distress and increased anxiety about being out of education. The Council has agreed to apologise and make payment to recognise the injustice caused.

The complaint

1. Miss X complains the Council failed to provide the education listed in her child’s Education, Health and Care (EHC) plan. She says her child was out of school and did not receive full educational provision from December 2022 to September 2024.
2. Miss X reports that the failure to provide educational provision caused her child distress and increased anxiety. She says the Council were slow to respond to her complaint and limited the time she could complaint for 12 months.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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)
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 we have and have not investigated

6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. Miss X explains that her child stopped attending school in December 2022 and did not return fully to education until September 2024 when they attended a different school. Within 12 months after her child started to attend school again, Miss X raised a complaint to the Council about the lack of educational provision they had received.
8. We have decided to exercise discretion and consider the matter overall. The injustice to the child being out of school was continuing. We considered it reasonable for Miss X to wait until the matter was fully resolved (when the child returned to education fully) before raising a complaint to the Council about this.
9. While Miss X did raise complaints to the Council during the period that her child was out of education, we considered the main crux of these complaints was not about the lack of provision but other issues. This included the lack of response from the Council including to those complaints.
10. Overall, we deemed it fair to exercise discretion and consider the whole time Miss X's child was out of education.

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How I considered this complaint

11. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
12. I have also considered the relevant statutory guidance, as set out below. In addition, I have considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

13. 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.
14. 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)  
15. 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

16. In September 2022 Miss X’s child moved from primary to secondary education. In December 2022 they stopped attending school. In January 2023, the Council declined Miss X’s request to amend the school named on the EHC plan.
17. In March 2023, Miss X says the school cancelled her child’s online learning. The Council say that it offered 11 hours of alternative provision from March 2023 to May 2024. Miss X says that during this time, her child only received on average a few hours of education each week.
18. In January 2024, Miss X made an appeal into the school named on the EHC plan however this appeal was dropped in April 2024 after the Council agreed to amend the EHC plan.
19. A revised EHC plan is issued in August 2024, and Miss X confirms that her child started a new school in September 2024.
20. In May 2025, Miss X made a complaint to the Council about the lack of educational provision provided to her child from December 2022 to September 2024. In July 2025 the Council finalised its response to the complaint. It offered and provided to Miss X a payment of £1,200. This was £300 for the distress caused by its delays in response and £900 for the lack of education provided between May 2024 and July 2024.

Analysis

21. The Council had a non-delegable duty to provide the educational provision set out in Miss X’s child’s EHC plan. After Miss X’s child stopped attending school regularly in December 2022, we note that some educational provision was provided by the school although this stopped in March 2023. The attendance figures provided during this time, also support the decreasing attendance in school.
22. This information also supports the Council knew about Miss X’s child declining attendance and that it had the opportunity to provide the education fully as set out in their EHC plan.
23. While we appreciate that some provision was attempted during the spring 2023 term, the evidence provided does not support the Council met its responsibilities fully. The failure to do so is fault. It has caused Miss X and her child injustice by the distress caused in the lack of education fully provided. Miss X has also reported the whole situation increased the anxiety felt by her child.
24. During the summer and winter terms of 2023 and the spring term of 2024, the Council say that it provided 11 hours of alternative provision per week. This then dropped to two to three hours for the summer term of 2024. Miss X disputes the figures from the Council saying the actual level of provision provided was much lower.
25. Again, while some provision was provided during this time, it was limited and less than the provision provided during the spring term of 2023. We consider this to be fault which again caused Miss X injustice in the form of distress.
26. Our guidance on remedies sets out that where fault has resulted in the lack of educational provision that an award payment of between £900 to £2,400 is due to recognise the harm caused by that loss. In doing so, we consider the severity of the child’s special educational needs as set out in their EHC plan. We also consider the amount of provision actually provided and whether the period concerned was a significant one for the child such as the transfer between primary and secondary education.
27. In reflection we find that an award of £1,200 is suitable for the spring term of 2023 which recognises that some provision was provided during this time. Following this we find that an award of £1,500 is suitable, per term for summer and winter 2023, and spring and summer 2024. We have also considered, the £900 award that Miss X has already received for the lack of education from May 2024 to July 2024.
28. The Council should therefore provide an apology and an award of £6,300 in total to recognise the distress caused by the failure to provide the educational provision set out in the EHC plan.
29. The Council is already on an agreed action plan to improve its service in relation to SEN complaints. We have decided therefore not to recommend any further service improvements in relation to this complaint.

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Action

30. Within four weeks of my final decision, the Council has agreed to:
1. provide a written apology to Miss X for the unnecessary and avoidable distress caused by the failure to provide full and consistent provision from January 2023 to July 2024.
2. Pay an additional £6,300 for the unnecessary and avoidable distress caused by the failure to provide full and consistent provision from January 2023 to July 2024.
31. 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 we have recommended in my findings.
32. The Council should provide us with evidence it has complied with the above actions.

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Decision

33. I find fault causing injustice. The Council has agreed to apologise and make a payment to Miss X.

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Investigator's decision on behalf of the Ombudsman