Summary: Mrs X complained the Council failed to provide the provision set out in Mr Y’s Education Health and Care Plan. She said this caused Mr Y distress and impacted his health. We find the Council at fault which caused injustice. The Council will apologise, secure the provision set out in Mr Y’s Plan and make a payment to remedy the injustice.

The complaint

1. Mrs X complains the Council did not provide the provision set out in Mr Y’s Education Health and Care (EHC) Plan and handled her complaint poorly.
2. Mrs X says the lack of routine caused Mr Y avoidable distress which impacted his physical health. She said this also caused her unnecessary stress and financial strain. She says the Council’s poor complaint handling caused her unnecessary time and trouble.

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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 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
8. 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

9. Mrs X appealed part of Mr Y’s EHC Plan to the Tribunal. The Tribunal issued its order in late September 2025. As I have explained above, we cannot investigate matters which could be considered by the Tribunal. For this reason, I have started my investigation in late September 2025, after the Tribunal order was issued.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
12. 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

What should have happened

EHC Plan provision

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. 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. 
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. 

Complaints handling

16. The Council’s policy states it will acknowledge and define the complaint within five working days. The council will then investigate the complaint with the relevant service and issue its stage one response within ten working days.
17. It states a complainant can request a review of its stage one response. It says each request will be assessed within five working days by a council officer who was not involved with the original stage one investigation. It said it will provide a final response within 20 working days of assessing the review request.

What happened

18. Mr Y is a young person with care and support needs. He has special educational needs and an EHC Plan.
19. Prior to September 2025, Mr Y’s EHC Plan said Mr Y should attend a specialist placement and receive one to one support. The Plan said the focus of his education should be developing independent life skills and preparing for adulthood. It also said he should receive Speech and Language Therapy, an Occupational Therapy programme and weekly swimming lessons.
20. In late September 2025, Mr Y did not have a specialist placement. The Council did not provide any provision.
21. Mrs X made a formal complaint to the Council that it had not provided any provision to Mr Y.
22. In its stage one complaint response, the Council told Mrs X it did not uphold her complaint because it was continuing to consult with other placements for Mr Y.
23. In mid-October, Mrs X escalated her complaint to stage two.
24. In November, the Council commissioned interim provision for Mr Y. The commissioned tuition focused on life skills, accessing the community, English, maths, communication skills and emotional regulation. The tutor attended an initial visit. Mrs X told the Council the provision was unsuitable for Mr Y.
25. In mid-November, the Council responded to Mrs X’s stage two complaint. It apologised for the uncertainty and frustration caused to Mrs X and her family by its failure to secure a placement for Mr Y. It told Mrs X it was providing interim tuition for Mr Y.
26. In late November, the Council contacted the alternative provision provider. It told the Council it could not meet Mr Y’s needs. The tuition did not go ahead.
27. Mrs X brought her complaint to the Ombudsman.
28. In February 2026, Mr Y began attending a day centre commissioned by another organisation. The day centre is a specialist provision which meets the needs of people with similar care and support needs as Mr Y. The day centre is a full-time placement, and Mr Y can attend every weekday for 48 weeks per year.
29. To date, the Council has not secured a specialist placement and has not provided any interim provision, Speech and Language Therapy, Occupational Therapy or weekly swimming lessons.

Analysis

EHC Plan provision

30. The Council should secure the specialist placement set out in the Plan. I am satisfied the Council consulted with specialist placements and was unable to secure a suitable placement for Mr Y. The outcomes of the consultations are out of the Council’s control. For this reason, I consider this fault to be service failure.
31. The Council has a duty to secure the special educational provision set out in Mr Y’s Plan. It accepts it should have made provision available to Mr Y in line with his EHC Plan which included one to one support to prepare for adulthood, speech and language therapy, a specific occupational therapy programme and weekly swimming lessons. It did not do so, which is fault.
32. This fault caused Mr Y to lose access to education provision and structure and routine which impacted his emotional wellbeing and caused Mrs X and his wider family uncertainty and distress. Fortunately, in February 2026, Mr Y started an adult day centre. Mrs X tells me the day centre was part of the future plan for Mr Y. The day centre is a specialist provision designed to meet the needs of people with care and support needs similar to Mr Y and it offered Mr Y structure and routine which was beneficial for him. However, the day centre did not provide Mr Y with the provision detailed in his Plan. For this reason, I consider the Council’s failure to provide the provision in Mr Y’s Plan caused him an ongoing loss of provision, which is injustice.
33. Mrs X also says the Council’s failure to secure provision caused her financial strain because it caused her additional costs related to her caring responsibilities. Our symbolic financial remedy is intended to remedy injustice caused to the young person from missing provision, as well as consequential injustice caused to the family due to this fault. This includes where there are significant additional caring responsibilities that occur from a young person being out of education and avoidable disruption to daily routine. 

Complaints handling

34. Mrs X complains about the Council’s delay issuing its final complaint response. The Council issued its complaints response four days later than its policy allows. I do not consider this delay to be significant enough for a finding of fault.

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Action

35. Within four weeks of the final decision statement, the Council has agreed to:
1. Make a written apology to Mrs X and Mr Y in recognition of the loss of provision to Mr Y and subsequent impact on his emotional wellbeing and the avoidable and prolonged stress and uncertainty caused to Mrs X by its failure to secure the provision in the EHC Plan.
2. Secure the one-to-one support provision detailed in Mr Y’s EHC Plan.
3. Secure the speech and language therapy detailed in Mr Y’s EHC Plan and consider any action it needs to take to address any shortfall in speech and language therapy provision for Mr Y since late September 2025.
4. Secure the occupational therapy programme detailed in Mr Y’s EHC Plan and consider any action it needs to take to address any shortfall in the occupational therapy provision for Mr Y since late September 2025.
5. Secure the weekly swimming lessons in Mr Y’s EHC Plan.
6. Make a payment of £5800 to remedy the loss of provision and emotional impact on Mr Y and his family caused by the Council’s failure to secure provision in his Plan from late September 2025 to date. In arriving at this figure I considered our published guidance on remedies and Mr Y’s individual circumstances. I consider Mr Y’s special educational needs to be significant. The Council did not provide any of the provision detailed in his Plan and I consider the injustice to be especially significant from September 2025 until February 2026. For this period, I consider the high end of our tariff to be proportionate. I consider the injustice suffered by Mr Y and his family reduces from February 2026 when he accessed the day centre and so from then I consider the mid-to-high range tariff to be proportionate to the injustice caused. This is because fortunately the day centre provided specialist provision to Mr Y and also offered Mr Y’s family some respite however it did not provide the provision detailed in Mr Y’s Plan.
36. 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 in my findings. 
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. 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