Surrey County Council – Miss X: Ombudsman considers failure to secure EHCP provision

The Ombudsman found Surrey County Council (the Council) at fault after it failed to secure all of the provision required by a child’s EHCP following a decision of the Special Educational Needs and Disability Tribunal (the Tribunal).

Background

The complaint was made by Miss X concerning the Council’s failure to implement the Tribunal’s findings in respect of her child’s EHCP. In May 2025, the Tribunal directed the Council to finalise an EHCP and implement the special educational provision by June 2025. The final plan was issued on 24 July 2025.

Miss X reported that the provision required by the EHCP was not secured within the required timeframe. In particular, hydrotherapy had not been provided at all. Speech and Language Therapy (SaLT) was not put in place until the end of April 2026, while physiotherapy only commenced in October 2025.  Occupational therapy was also delayed.

The consequences were significant because the child was due to sit GCSE examinations in 2026. Miss X explained that her child had been unable to continue with some subjects and would need to retake English. She also said that the delays in provision had contributed to burnout and a reduction in school attendance.

The legal framework

The Ombudsman reiterated the statutory duty under section 42 of the Children and Families Act 2014. A local authority has a duty to secure the special educational provision specified in section F of an EHCP. Importantly, that duty is non-delegable. The fact that a local authority may rely upon a school, healthcare professional or another organisation to deliver provision does not transfer responsibility away from the local authority.

The Ombudsman acknowledged that it would not be realistic for a council to maintain a continuous “watching brief” over every element of provision for every child with an EHCP.  Nevertheless, the Council must be able to demonstrate appropriate oversight. The Ombudsman identified minimum safeguards:

• Checking that provision is in place when a new or amended EHCP is issued or when there is a change of placement;
• Checking provision at least annually as part of the EHCP review process; and
• Promptly investigating and acting upon complaints that provision is not being delivered.

What went wrong?

The provision required by the EHCP was not secured within the required timeframe and some provision was never provided. The Ombudsman considered both the delay in securing provision and the complete failure to provide certain provision to amount to a fault. This was despite the Council subsequently offering catch-up sessions. The Council did take a step that the Ombudsman would expect – offering catch-up sessions – but the family explained that the child was experiencing burnout and was not in a position to undertake the additional sessions. There was also a significant cumulative effect. The Ombudsman accepted that the failure to provide support affected the child’s ability to participate in other educational provision, contributing to reduced attendance and further missed education.

What did the Council do right?

The Council recognised the need to address the missed provision and offered catch-up sessions. The Ombudsman expressly acknowledged that this was what would normally be expected where provision had been missed as a result of the Council’s fault.

The Ombudsman also recognised that the timing of the Tribunal’s decision was relevant. Although provision should have been in place before June 2025, this was towards the end of the academic year and therefore the amount of provision missed during that period was relatively limited.

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Take Me There

The Ombudsman’s decision and remedy

The Ombudsman concluded that the Council was at fault and that its fault had caused injustice to Miss X, her child and the wider family. In assessing the appropriate remedy, the Ombudsman considered:

• The amount of provision missed
• The fact that some provision was delivered late while other provision was not delivered at all
• The consequential impact upon the child’s ability to attend school
• The Council’s offer of catch-up provision
• The particular significance of the missed provision because the child was in a GCSE examination year

The Ombudsman recommended compensation of £6,000. The Council was also required to apologise for the distress caused by its failure to secure suitable special educational provision.

Impact and wider significance

For local authorities, the decision reinforces that the statutory duty under section 42 cannot simply be treated as discharged because a school or external provider has been asked to deliver the provision. Authorities need effective systems for monitoring delivery and responding promptly where provision is not being secured.

The decision also demonstrates the importance of considering the actual impact of missed provision, rather than viewing each missed service in isolation. Here, the failure to provide support had a cumulative effect on the child’s education and attendance. The fact that the child was approaching GCSE examinations was also an important factor in assessing the seriousness of the injustice.

For schools, the case illustrates the importance of promptly raising concerns with the local authority where provision in an EHCP is not being delivered. While the statutory duty to secure section F provision rests with the local authority, schools have a practical role in identifying gaps, documenting missed provision and communicating concerns.

Lessons

For local authorities, robust systems should be in place to:

1. identify immediately what provision is required when an EHCP is issued or amended
2. establish clearly who is responsible for arranging each element of the provision
3. monitor whether provision is actually being delivered
4. investigate concerns promptly rather than waiting for the next annual review
5. consider the child’s individual circumstances when deciding how missed provision should be remedied

For schools, it is important to understand the provision specified in each pupil’s EHCP, maintain appropriate records of provision delivered and missed, and notify the local authority promptly where specified provision cannot be secured. Where provision has been missed, a proposed programme of catch-up support may be appropriate, but it should be tailored to the child.

Ultimately, the decision demonstrates that failures in EHCP implementation can have consequences extending well beyond the missed provision itself. Where a child has complex needs, prolonged gaps in support can affect attendance and educational outcomes. Local authorities therefore need effective oversight mechanisms, while schools should ensure that concerns about missing provision are identified, documented and escalated promptly.

Do get in touch with our Education team, if we can support you with any SEND matters.