Summary: Mrs X complained the Council failed to secure suitable education for her son, Y. We find the Council at fault for failing to secure suitable education for Y for approximately 4 school terms between March 2023 and February 2025. This caused uncertainty and distress for Y and Mrs X, and meant Y missed out on special educational provision during a key stage of his education. The Council has agreed to apologise and make a symbolic payment to remedy the injustice caused.

The complaint

1. Mrs X complained the Council failed to secure suitable education for her son, Y. Mrs X told us Y has had no education for five years and this has impacted his ability to live a normal life. Mrs X also told us the whole family has been impacted, and they have lost education, health, confidence, connection and years which they cannot get back. Mrs X would like the Council to acknowledge it has failed to provide education and support and provide a financial remedy. Mrs X would also like the Council to complete a full review of Y’s educational progress and update his Education, Health and Care Plan accordingly.

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The Ombudsman’s role and powers

2. 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)
3. We cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. We call complaints that have not been through a council’s complaint procedure ‘premature complaints’. We may decide to investigate a premature complaint if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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)
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)
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 have and have not investigated

8. Mrs X first complained to us in March 2023. We decided it was reasonable for the Council to investigate her complaint first. Because Mrs X registered her complaint with the LGSCO in March 2023, the period between March 2022 and March 2023 is not late.
9. An annual review meeting took place to review Y’s Plan in July 2022. The review meeting forms note that Y’s attendance was 8.18% however it was felt Y was appropriately placed at the school and no amendments were requested to Y’s Plan. Following this review, Mrs X had a right to appeal the content of Y’s Plan if she disagreed with the named setting or specified provision. As Mrs X had a right to appeal, I have not investigated the Council’s actions in securing the provision detailed in this Plan.
10. The Council issued a further Education, Health and Care Plan in March 2023. Mrs X agreed with the content of this Plan, so it is reasonable that she did not appeal.
11. The Council issued an Education, Health and Care Plan in February 2025 which had a right to appeal if Mrs X disagreed with the content of the Plan. For this reason, I have not investigated the Council’s actions after this date.
12. I have investigated the Council’s actions in securing Y’s special educational provision between March 2023 and February 2025.

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How I considered this complaint

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

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What I found

Legal and administrative background

15. 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. 
16. 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)  
17. 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

18. The following is a summary of key events. It is not intended to be detailed chronology.
19. In March 2023, while Y was in year 9, the Council issued an amended Plan which detailed Y was to receive ‘education other that in a school’ (EOTAS). This included:
• A bespoke curriculum adapted to Y’s interests.
• Access to a touch-type programme on a laptop.
20. Between March 2023 and July 2023, the Council took steps to find a suitable provider for Y’s EOTAS package. In July 2023 the Council secured a tutor to begin in September 2023.
21. Between September 2023 and December 2023, Y accessed tuition however the relationship with the provider began to break down in December 2023.
22. Mrs X contacted the Council in January 2024 to request an emergency review of Y’s EHC Plan. Mrs X also asked the Council to provide an update on the mentoring and IT provision which was detailed in Y’s Plan.
23. Between January 2024 and July 2024, the Council took steps to secure a suitable tutor to provide education for Y.
24. Y began accessing tutoring in September 2024. From October 2024 the tutor remained available by Y refused to engage in the provision.
25. Between March 2023 and February 2025, Mrs X discussed the laptop provision with the Council on multiple occasions. The Council failed to provide this provision.

My findings

26. There was a delay in the Council securing Y’s EOTAS package between March 2023 and September 2023. This delay is fault which meant Y did not receive access to education for approximately two school terms.
27. Following the relationship breakdown with the tuition provider in December 2023, the Council did not secure a replacement tutor until September 2024. This is fault which meant Y missed out on education for approximately two further school terms.
28. Between September 2024 and January 2025, the Council did have a tutor available to Y although he did not engage with the tutor from October 2024. I have not found the Council at fault for this period of time.
29. The Council failed to secure the laptop and touch typing provision which was outlined in Y’s EHC Plan. This is fault which impacted Y’s access to education between March 2023 and February 2025.
30. As part of its complaint process the Council offered Mrs X £1800 in recognition of its failure to secure Y’s section F provision for a period of 20 weeks. This offer has been factored into my recommendations.

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Action

31. Within one month of the final decision the Council will:
• Apologise to Y and Mrs X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
• If Mrs X has not already received the Council’s initial financial remedy offer of £1800, the Council should reoffer this to Mrs X.
• Make a symbolic payment of £3,600 to Mrs X in recognition of the injustice caused by the Council’s failure to secure Y’s special educational provision for approximately 4 terms. In line with our Guidance on Remedies, this is calculated at £1,350 per term of missed education, minus the £1800 already offered by the Council.
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 actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman