Summary: Miss X complained about the Council’s failure to issue an amended Education, Health and Care Plan within the statutory timeframe, failure to provide support for her son’s (Y) special educational needs as well as poor communication and complaint handling. We found the Council to be at fault. This caused distress, frustration and had an impact on Y’s development. To remedy this injustice, the Council agreed to apologise, make a symbolic payment to Miss X and ensure delivery of missed provision.

The complaint

1. Miss X complains about the Council’s failure to comply with statutory timescales relating to her son’s EHC Plan and resulting loss of provision.
2. She also complains about poor communication, complaint handling and the failure to provide occupational therapy (OT).
3. She says this has caused distress, frustration and inconvenience. The lack of OT provision also impacted on her son’s development.

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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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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)

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What I have and have not investigated

8. I have investigated events from March 2024 to November 2024 (the date Miss X brought her complaint to the Ombudsman).

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How I considered this complaint

9. I spoke to Miss X and considered the information she provided.
10. I made enquiries of the Council and considered its response and case records.
11. I reviewed the relevant law and guidance.
12. Miss X and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

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What I found

Relevant law and policy

Education, Health and Care Plans

13. A child with special educational needs (SEN) may have an Education, Health and Care Plan (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
14. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

15. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

SEND Tribunal and appeal rights

16. There is a right of appeal to the SEND Tribunal against the special educational provision specified, the school or placement or that no school or other placement is specified.

Failure to secure provision

17. Councils have a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act 2014). The courts have said this duty to arrange provision is owed personally to the child and is non-delegable.

Annual Reviews

18. 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 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.
19. 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.
20. The council must issue the amended EHC Plan within eight weeks of the original amendment notice.

What happened

21. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
22. Y is a child of primary school age with SEN. Since 2018 he has had an EHC Plan.
23. In March 2024, an annual review was held at Y’s school (the School). Miss X expected to be told within four weeks whether the Council intended making amendments to Y’s EHC Plan. Despite contacting the Council on several occasions, she was not informed what, if any, progress was being made. She was concerned because she believed Y’s needs were not being met under the existing EHC Plan.
24. Y’s EHC Plan includes 6 sessions of OT per term. Miss X was told the Council failed to confirm it would pay the therapist’s invoice, so the two OT sessions were not provided. Miss X says this had a noticeable and negative impact on Y’s health. She made a formal complaint about this in May 2024, but did not receive a response
25. She made a further complaint about delay in the EHC Plan process in September 2024.
26. This second complaint prompted the Council to issue draft amended plan in October 2024. The final plan was issued shortly afterwards. Miss X was not satisfied with the content of the EHC Plan and lodged an appeal with the SEND Tribunal.

The Council’s position

27. In response to Miss X’s complaint and the Ombudsman’s enquiries, the Council has accepted:

• it took too long to issue the draft EHC Plan following the March 2024 annual review. It said this was caused by a late submission of information from the School together with a high volume of cases and staffing issues;
• communication with Miss X was poor during this time; and
• two OT sessions were missed. During the course of this investigation, the Council has arranged for the therapist to provide two additional sessions in the autumn term 2025.

28. The Council apologised to Miss X and explained it was taking action to address the shortcomings of the SEN department highlighted by her complaint.
29. Dissatisfied with this outcome, Miss X brought her complaint to the Ombudsman.

Analysis

30. I will consider Miss X’s separate areas of complaint below.

Delay

31. An annual review was held in March 2024. The law says a final amended EHC Plan should be issued within 12 weeks from the date of the annual review. The Ombudsman expects councils to adhere to statutory timeframes. In this case, there was a delay of approximately six months. Whilst delay by the school was responsible for one month, it should not have taken a further five months to issue the draft plan. This lengthy delay by the Council was fault.
32. As I have found fault, I need to consider what injustice this caused. I am satisfied Miss X experienced both distress and uncertainty, particularly as Miss X was concerned the content of the EHC Plan did not reflect Y’s SEN. It also significantly delayed Miss X’s opportunity to lodge an appeal to the SEN Tribunal about this. This injustice requires a remedy.

OT provision

33. In response to my enquiries, the Council accepts Y did not receive two of the six direct OT sessions it was obliged to provide over one term. The Council had a legal duty to ensure provision set out in section F or the EHC Plan was delivered. Failure to do so was fault.
34. As a partial remedy, the Council has already contacted the therapist who has agreed to ensure the two missed sessions are delivered by the end of the autumn term 2025. However, I am satisfied Miss X experienced distress and frustration because of Y not receiving the therapy he was entitled to. This injustice requires an additional remedy.

Poor communication and complaint handling

35. The Council has accepted it communication with Miss X since the March 2024 annual review was poor and was caused by insufficient resources within the SEN team to deal with the number of cases. It should not have taken a formal complaint to prompt completion of the draft EHC Plan. The case records also show Miss X did not receive a letter about secondary transfer because it was only addressed to “parent/carer”. Miss X had moved house and so the letter was not forwarded to her. This caused further frustration to Miss X because she was given inadequate notice of an important process.
36. There was further fault with the Council’s complaint handling. Miss X made a formal complaint about missed OT provision in May 2025. Whilst her letter was acknowledged, the Council’s records do not show a substantive response was ever sent. As a result, there has been a significant, avoidable delay in rescheduling the missed therapy sessions because the matter was not investigated by the Council until it was raised by the Ombudsman.

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Agreed action

37. Within four weeks from the date of my final decision, the Council has agreed to take the following action.
1. Apologise in writing to Miss X.
2. Confirm in writing to Miss X the Council’s commitment to ensuring Y receives the two missed OT sessions by the end of the autumn term 2025 at the latest.
3. Pay Miss X £500. This is a symbolic payment to acknowledge her distress, time and trouble caused by the Council’s delay in the EHC Plan process.
4. Pay Miss X £300. This is a symbolic payment to acknowledge her distress, time and trouble caused by the Council’s poor communication, complaint handling and failure to provide OT at the right time.
5. Ensure correspondence sent by post is addressed to the intended recipient.
38. The Ombudsman has already made several service improvement recommendations to the Council in recent, similar cases regarding delays in the EHC Plan process and poor customer service. Given this, I do not intend making further such recommendations to allow time for these to take effect.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I find fault causing injustice. The Council has agreed to action my recommendations to remedy the injustice caused by the faults I have identified.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman