Summary: Ms X complains that the Council failed to deliver the provision outlined in Section F of her son Y’s EHC Plan, resulting in delays and unmet needs, including issues with Y’s personal budget. We have concluded our investigation having made a finding of fault. The Council acknowledges that it did not deliver the provision, caused delays, and failed to communicate effectively. It has provided a remedy to address the distress and inconvenience caused. We are satisfied that this remedy sufficiently addresses the injustice identified in this complaint. The Council has agreed to our recommendations.

The complaint

1. Ms X complains the Council has not delivered the provisions outlined in Y’s EHCP, including necessary educational support and resources. As a result, Y has been disadvantaged. Ms X also complains about costs incurred which have not been reimbursed by the Council. Ms X says she has spent time and money supporting Y due to the Council’s alleged shortcomings. Ms X seeks adherence to proper processes and a remedy to address the impact on both herself and Y.

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The Ombudsman’s role and powers

2. 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 suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
3. 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(i), 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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How I considered this complaint

6. I liaised with Ms X and considered the information she provided. I also made enquiries to the Council and considered the information it provided. Ms X and the Council were offered an opportunity to comment on my draft decision and I considered all comments submitted.

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What I found

7. 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.
8. The EHC Plan is set out in sections which include:
• section F; the special educational provision needed by the child or the young person; and

Special educational provision

9. 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)  
10. 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. 

Scope of my investigation

11. Ms X complained to the Council in August 2023. The Council issued its Stage 2 complaint response in December 2023. It is noted that Ms X’s complaint in August 2023 relates to Y’s EHCP which was issued in August 2022. My investigation is therefore limited to events within this period.

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What happened

12. In August 2022, Y’s EHCP was issued.
13. In August 2023, Ms X submitted a complaint to the Council. Of note, Ms X complained about:
• Provision under Section F of Y’s EHCP had not been delivered. This was regarding individual targeted teaching and frequent rehearsal for developing auditory processing skills.
• Section F provision delivered via a personal budget had cost the family, delayed provision and caused unnecessary stress due to personal budget payments being delayed or ceased.
• Delay in Speech and Language provision
• Lack of communication regarding provision
14. In September 2023, the Council issued its Stage 1 complaint response. It said:
• There was a lack of oversight that Y was not receiving the provision specified in his plan. It agreed for an APD assessment.
• The Speech and Language Therapist ceased delivering Y’s SLT provision, with the last session taking place in May 2023, where Y had received 13 out of the 18 sessions. There was delay in sourcing an alternative Speech and Language Therapist, however following Ms X identifying a suitable therapist, the outstanding five sessions were delivered in August 2023. The Council acknowledged confusion and a lack of communication regarding delivery and payments.
15. In October 2023, Ms X submitted an additional complaint to the Council. She complained that:
• Mileage costs had increased and should be reimbursed between April and October.
16. After Ms X escalated her complaint to Stage 2, the Council issued its Stage 2 Complaint response. It noted that Ms X’ remained dissatisfied with the Council’s responses to her complaint about delays in implementing provision in Y’s EHCP, delays in implementing SALT provision and issues concerning the ceasing of the personal budget. In this complaint response, the Council also addressed Ms X’s complaint regarding the increase in mileage and the absence of funding. The Council said:
• It had commissioned an auditory processing assessment, however as the provision was over a year overdue, arrangements to commission a tutor would be expedited without delay.
• It acknowledged the inconvenience caused to Ms X regarding the implementation of SALT provision, however it notes that Y had not missed any sessions.
• It acknowledged a delay in processing the annual review paperwork to renew the Personal Budget, which caused insufficient funds to cover Y’s provision. The Council had made a £300 payment to Ms X as compensation following the Stage 1 complaint. However, the Council also acknowledged the Personal Budget had not been increased in line with cost increases by providers, and they took steps to remedy this by increasing the Personal Budget and paying an additional £300 directly to Ms X.
• It had increased payments into the personal budget to cover the mileage increase and had agreed a back payment to cover the monies due from the summer term.
17. In November 2023, Ms X complained to the Ombudsman however her complaint was marked as premature. Ms X came back to the Ombudsman in April 2024 following the Councils Stage 2 complaint response.

As part of my investigation, I made enquiries to the Council. In response to my enquiries, the Council advised that:

• It had offered Ms X, £900 in acknowledgment of provision not being made as set out in Section F, delays in implementing provision, delays in securing SALT provision, and the personal budget not being increased in line with cost-of-service increases.
• It had issued a compensation payment of £2,070 to Ms X in September 2024 for the period from September 2023 to March 2024. This amount included £1,870 for missed provision and £200 for the time Ms X spent following up on the matter.
• Ms X had submitted additional complaints to its service between March 2024 and September 2024.

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Analysis

Failure to secure Section F provision

18. Ms X complained to the Council that it failed to secured Section F provision, specifically regarding individual targeted teaching and frequent rehearsal for developing auditory processing skills.
19. Ms X raised concerns that Section F provision, specifically APD provision in Y’s EHCP had not been delivered. Ms X stated that this had not been provided since August 2022, leading to developmental delays, stress, and worry for Y.
20. The Council’s response acknowledged that there had been a significant delay in implementing the APD provision, and they apologised for the oversight. They noted that they had not secured the necessary clinical advice in a timely manner but assured that a tutor would be commissioned without waiting for the APD assessment. Despite these steps to address delay in implementing the APD provision. the specific provision for Section F was not fully implemented as required.
21. The failure to deliver the Section F provision represents a failure by the Council to meet its obligations under the EHCP. The Council has acknowledged this failure, and while efforts were taken to rectify the situation, there is fault in the delay and non-delivery of these provisions as per the EHCP.

Section F provision delivered via a personal budget.

22. Ms X says that the Council did not properly fund the personal budget to enable delivery of Section F provisions in Y’s EHC Plan. Ms X said they had to pay for some provisions themselves and experienced financial strain due to insufficient funds being allocated to the personal budget.
23. The Council acknowledged delays in processing the annual review paperwork, which impacted the renewal of the personal budget and resulted in insufficient funds to cover provision at the start of the term. Additionally, the Council admitted it had not increased the personal budget to reflect rising costs of provision. We find fault with the Council for these delays and errors, which caused financial inconvenience and stress to the complainant.

Delay in Speech and Language Therapy Provision

24. Ms X stated that Y’s Speech and Language Therapy provision, as outlined in Section F of his EHC Plan, was not consistently delivered, causing distress and delay in Y’s development.
25. The EHC Plan specified 18 hours of one-to-one therapy per academic year. The Council acknowledged delays in securing a replacement SALT provider after the original therapist ceased delivering sessions in May 2023, leaving five sessions outstanding.
26. Ms X sourced an alternative provider, and therapy resumed in August 2023, with the outstanding sessions delivered during that month. However, administrative issues and delays in commissioning the new provider created uncertainty and distress for Ms X, who had to intervene to ensure continuity of provision. We find fault with the Council for the delay in securing provision and for relying on the complainant to address the issue.

Lack of communication

27. Ms X raised concerns about a lack of communication from the Council regarding Y’s EOTAS package and the delivery of Section F provision in his EHC Plan. She reported experiencing confusion, delays, and uncertainty, particularly around the arrangements for speech and language therapy, administrative processes for the personal budget, and updates about their son’s provision.
28. The Council should have maintained clear and consistent communication, ensuring the complainant was informed promptly about any changes, delays, or issues with the provision. Instead, Ms X had to repeatedly follow up and intervene to resolve matters. The Council acknowledged its communication shortcomings, which caused distress and uncertainty. It partially upheld the complaint, accepted there were failures, and offered a financial remedy as recognition of the distress caused. We find fault with the Council for its poor communication, which contributed to the complainant’s frustration and distress.

Remedy

29. I am aware that the Council issued a remedy to Ms X in September 2024 amounting to £2,070, which was for fault and injustice identified between September 2023 and March 2024, much of which falls outside the scope of this investigation. Therefore, I have not considered this amount when determining whether the remedy already offered by the Council is sufficient in this complaint.
30. The Council has already offered Ms X a remedy of £900 and £300 for the period under investigation. The £900 acknowledges the failure to deliver Section F provision, delays in implementing provision, delays in securing SALT provision, and the failure to increase the personal budget in line with service cost increases. The £300 addresses the distress caused by poor communication and delays.
31. Based on the Ombudsman’s guidance on remedies, a financial remedy for the missed auditory processing support should reflect the severity and duration of the unmet need. The guidance suggests a remedy range of £900 to £2,400 per term for a complete failure to deliver Section F provision. For a single element of the provision, a proportionate remedy would be in the range of £450–£900 for the missed provision over the year, which is consistent with the Ombudsman’s guidance, and I have arrived at an amount of £200 per term.
32. Part of the £900 financial remedy was for the distress caused by delays in providing SALT provision. While the sessions were ultimately delivered, the delays caused unnecessary distress and uncertainty for the complainant, requiring intervention to secure the provision. This payment acknowledges the frustration and inconvenience while considering that the full provision was eventually delivered.
33. Therefore, I am satisfied that the combined remedy of £1,200 offered by the Council has sufficiently addressed the injustice in this complaint, and no further personal remedy has been recommended. I acknowledge that the Council has already paid a remedy of £1,200 to the complainant. However, it is important that the Council ensures this remedy solely addresses the fault and injustice identified in this complaint and does not account for any other subsequent or outstanding issues. The Council should confirm that the payment has been made specifically in relation to the matters raised within this investigation, without extending it to cover any other complaints or matters outside the scope of this investigation.

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Agreed action

34. To remedy any outstanding fault and injustice in this complaint, and to prevent similar occurrences, the Council has agreed to:
1. Ensure it has provided Ms X with a remedy of £1,200 for fault and injustice identified in this complaint, as per paragraph 33.
2. Provide an apology to Ms X for fault and injustice identified in this complaint.
3. Complete a review of Y's circumstances, specifically with regard to provision E1J, ensuring this provision is put in place without further delay. The Council should provide a clear timeline for implementation and update Ms X on the steps being taken to secure the provision.
4. The Council should improve the process for reviewing and updating personal budgets, ensuring they are adjusted in line with service costs and communicated to families in a timely manner. This will help prevent delays and avoid the need for families to intervene to secure funding.
35. The Council will complete action points a-d within one month of the Ombudsman final decision and provide the Ombudsman with evidence of compliance.

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Final decision

36. We have concluded our investigation having made a finding of fault. The Council acknowledges that it did not deliver the provision, caused delays, and failed to communicate effectively. It has provided a remedy to address the distress and inconvenience caused. We are satisfied that this remedy sufficiently addresses the injustice identified in this complaint. The Council has agreed to our recommendations.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman