Summary: Mrs X complained the Council delayed completing her child’s annual review and failed to provide the Occupational Therapy provision set out in their Education, Health and Care Plan since 2022. We find the Council at fault. This caused uncertainty and a loss of special educational provision. The Council has agreed to apologise, make a payment to Mrs X, and take steps to improve its services.

The complaint

1. Mrs X complained the Council failed to complete her child Y’s annual review within the statutory timescales and has failed to provide the Occupational Therapy (OT) provision detailed in their Education, Health and Care (EHC) Plan since 2022.
2. Mrs X also complained about the delay handling her complaint.
3. Mrs X says the delay has impacted her request for transport to college and caused avoidable distress and uncertainty for the family.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. 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)
8. I have not investigated any matters prior to June 2023. This is because Mrs X was aware of these issues for more than 12 months before she complained to us. These are therefore late complaints and there are no good reasons to investigate them now.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. 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

Relevant law and legislation

EHC Plans

11. 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. 
12. 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)  

Reviewing EHC Plans

13. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
14. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
15. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
16. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.

What happened

17. Y has special educational needs and was issued an Education, Health and Care (EHC) Plan in June 2022.
18. Y’s first annual review was due by June 2023. However, the review meeting did not take place until October 2023.
19. In May, Mrs X applied for a Personal Transport Budget (PTB) to support Y’s travel to college.
20. In June 2024, Mrs X complained to the Council. She said she had not received confirmation of the outcome of the 2023 annual review. She also said Y had not received any of the Occupational Therapy (OT) provision set out in their EHC Plan.
21. In July, the Council informed Mrs X that it had decided to maintain Y’s EHC Plan and that funding had been agreed for Y to continue attending their college for another year.
22. Mrs X brought her complaint to the Ombudsman after not receiving a response to her complaint from the Council.
23. In September, the Council approved the PTB application, backdated to the start of the academic term, and issued payment the following month.
24. In October, the Council issued its stage one complaint response. It acknowledged and apologised for delays in:
• responding to Mrs X’s complaint;
• completing the 2023 annual review; and
• providing the OT provision.

It offered Mrs X £200 for the impact of the annual review delay, and £300 for the missed OT provision during the 2023/24 academic year.

25. In November, we asked the Council to escalate the complaint to stage two.
26. Later that month, the Council held Y’s second annual review.
27. In January 2025, the Council confirmed its decision to maintain Y’s EHC Plan and for Y to remain at their current college.
28. In March, the Council issued its final complaint response. It:
• apologised again for the delay in completing the 2023 annual review;
• said the 2024 review had been delayed due to the college’s late submission of required paperwork;
• upheld the previous offer of £200, noting no changes to the EHC Plan were made;
• acknowledged communication failings around OT provision;
• explained ongoing difficulties in securing OT support due to a lack of service providers; and
• offered a further £150 to reflect missed OT provision during the 2024/25 academic year to date.

My findings

Annual review

29. The Council should have completed Y’s annual review and issued its decision by June 2023. However, the review meeting did not take place until October 2023, and the Council’s decision to maintain the EHC Plan was not issued until July 2024. It also meant a second annual review was missed in June 2024. This amounts to an 8-month delay following the review meeting, and a total delay of 13 months. This is fault.
30. But for the fault, both annual reviews would have been completed on time in June 2023 and June 2024, each based on up-to-date advice from the family, school and other relevant professionals. The failure to do so caused avoidable uncertainty for Mrs X and Y.
31. The Council offered Mrs X £200 to recognise the impact of the delay. I have considered whether the remedy is in line with the expectations set out in our Guidance on Remedies. In my view, given that the EHC Plan remained unchanged and Y continued to attend their college, I consider the remedy appropriate and do not recommend further action on this point.

Transport

32. Mrs X was concerned the delay in the 2023 annual review could affect future transport arrangements. However, the Council assessed and approved her application for a PTB in September 2024 and backdated the payment to the start of the term. I find no fault in the Council’s actions or decision-making regarding Y’s transport to college.

Occupational therapy provision

33. The Council is responsible for ensuring the special educational provision in an EHC Plan is delivered. The failure to provide OT support, as specified in Y’s Plan is fault. The Council has acknowledged this and offered:
• £300 for the missed OT during the 2023/24 academic year; and
• £150 for the missed OT during the first half of the 2024/25 academic year.
34. I have considered whether the remedy is in line with the expectations set out in our Guidance on Remedies. In my view, having considered the OT provision in Y’s EHC Plan, the amount offered is appropriate.
35. However, I remain concerned that the OT provision has not been delivered for a prolonged period, the Council has not yet resolved the underlying issue, and Y continues to be without OT provision. While it previously shared an action plan with the Ombudsman outlining the steps being taken to address the shortage of OT provision in its area, that information was provided in early 2024 and may no longer reflect the current position. To ensure progress continues, the Council should now provide an updated summary of the actions it is taking to secure appropriate OT provision and meet its statutory duties.

Complaint delay

36. The Council took four months to respond to both stages of Mrs X’s complaint, significantly exceeding its published timescales of 20 working days. This is fault and caused Mrs X avoidable distress and uncertainty.

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Action

37. To remedy the injustice caused by the above faults, within four weeks of the date of our final decision, the Council has agreed to:
• apologise to Mrs X in line with our guidance on Making an effective apology;
• pay Mrs X its proposed remedy of £650 to recognise the uncertainty caused by the 2023 annual review delay, and its failure to provide Y with OT provision;
• pay Mrs X £150 to recognise the failure to provide Y with OT provision for the second half of the 2024/25 academic year; and
• pay Mrs X £100 to recognise the distress caused by the poor handling of her complaint.
38. Within two months of the date of our final decision, the Council has agreed to provide an update on the actions it is taking to address the ongoing shortage of Occupational Therapists in its area.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. 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