Summary: We cannot investigate if the Council was at fault for failing to ensure Miss X’s child Y received the special educational provision outlined in their Education, Health and Care Plan, as it was too closely connected to her reason for appealing to the Tribunal. There was fault in the Council’s communication and complaint handling for which it has offered a suitable financial remedy during our investigation for the frustration caused. The Council was also at fault for failing to send its decision within four weeks of Y’s annual review meeting however this fault did not cause a significant injustice.

The complaint

1. Miss X complained the Council:
1. did not secure the special educational provision including the speech and language therapy (SALT) and occupational therapy (OT) outlined in section F of her child, Y’s Education, Health and Care (EHC) Plan;
2. named an unsuitable school in Y’s EHC Plan which could not meet their needs;
3. did not follow the annual review process correctly in October 2024; and,
4. was poor in its communication and complaint handling.
2. Miss X said, as a result, Y’s education and well-being suffered and she was caused distress.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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(1), 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter, even if they later withdraw all or part of the appeal. 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 and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
9. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
10. 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.
11. We have no jurisdiction to investigate Miss X’s complaint at 1b) above as she appealed the school named in section I of Y’s EHC Plan to the SEND Tribunal.

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How I considered this complaint

12. I spoke to Miss X about her complaint.
13. I considered evidence provided by the Council as well as relevant law, policy and guidance.
14. Miss X and the Council had an opportunity to comment on the draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plan

15. 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.
16. The EHC Plan is set out in sections. Section B of the EHC Plan sets out the child’s special educational needs, section F sets out the special educational provision needed by the child and section I outlines the name and/or type of educational placement. We cannot direct changes to the sections about the child’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.

Reviewing Education, Health and Care Plans

17. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
18. 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.

Working document

19. A working document is a part of a contents appeal to the SEND Tribunal. It is a copy of the EHC Plan which can be amended by both councils and appellants in the run up to the appeal hearing.

What happened

20. This section sets out the key events in this case and is not intended to be a detailed chronology.
21. Miss X’s child Y is of primary school age and has special educational needs.
22. On 16 April 2024 the Council issued Y’s first EHC Plan. Section I of Y’s Plan named the school where they had been attending. Section F of their Plan was school/classroom based and included:

• strategies and interventions delivered by teaching staff to help support Y’s learning, social communication skills and development.
• in addition to strategies delivered by school staff to support Y’s speech and language, an assessment to determine if Y also required specialist speech and language therapy (SALT) interventions.
• occupational therapy (OT) based strategies and support in addition to a fine motor skills program to be delivered three times per week for 10 minutes each by teaching staff.

23. On 22 May 2024 Miss X:

• complained to the Council that Y had not received much of the special educational provision outlined in section F of their EHC Plan. She said Y was dysregulated in their school environment and was unable to access their classroom or the special educational provision set out in their EHC Plan.
• appealed sections B, F and I of Y’s EHC Plan to the Tribunal.

24. In her appeal papers covering section F, Miss X told the Tribunal a lot of the special educational provision the Council had outlined in that section used ambiguous terms and was vague, leaving room for doubt. Miss X said section F was not legally enforceable. She specifically referred to parts of section F regarding SALT support. She also referred to elements including adult support and how Y’s learning should be delivered. Her appeal did not refer to OT support for a fine motor skills programme. In her appeal for section I, Miss X said a mainstream school was not suitable for Y
25. On 8 October 2024 the Council held an annual review for Y. The annual review meeting notes showed that Y was unable to access their classroom and was completing “short burst lessons” lasting between five to 10 minutes in a quiet sensory area within the school. It also showed that Y was, at that time, attending on a part time basis (9am to 1pm) and any attempts to increase their time in school had made them more dysregulated.
26. On 18 November 2024 the Council received the annual review documents from Y’s school.
27. On 26 November 2024 Miss X complained to us that the Council had not provided section F of Y’s EHC Plan. She said Y was unable to access the classroom or the provision they required. They were “too dysregulated in the school environment to receive much of the provision outlined in their EHC Plan.”
28. On 2 December 2024 Miss X registered a new complaint with the Council. She complained she had not received the Council’s decision following Y’s annual review meeting on 8 October 2024.
29. On 3 December 2024 the Council issued a stage one response to Miss X’s complaint of May 2024. It apologised for its delayed response and said Y’s needs could be met in school A and with the provision outlined in their EHC Plan.
30. On 13 January 2025 Miss X requested the Council to escalate her original complaint. She said the Council had not understood her complaint about the non-provision of section F of Y’s Plan correctly and that it had offered no remedy.
31. In February 2025 Miss X complained to the Council that it should have issued a draft EHC Plan within statutory timescales following Y’s annual review in October 2024.
32. On 31 March 2025 the Council issued a stage two complaint response. It accepted it had communicated poorly. It reiterated that the named school in Y’s EHC Plan was suitable for their needs. It also explained that a ‘proposed Plan’ was not issued following the annual review in October 2024, rather the amendments were included in the working document, because it had made more changes to the working document as part of the appeals process than the EHC Plan that was reviewed. It said it was in Y’s best interest to continue with the current appeal.
33. In early April 2025 the Tribunal issued an order which stated that the Council had agreed to name Miss X’s requested school in section I of Y’s EHC Plan. The order also stated that much of the working document was agreed and that both Miss X and the Council had agreed to work together on the outstanding OT provision with a view to reaching an agreement and submitting a request for a consent order. The SEND Tribunal issued a consent order a few days later.
34. In late April 2025 the Council issued Y’s final amended EHC Plan with amendments to sections F and I of the Plan.

The Council’s response to our enquiries

35. In response to our enquiries, the Council said it expected Y’s school to provide the special educational provision in their EHC Plan. It provided the SEND panel notes and Y’s visual timetable as evidence. The Council said Y’s OT provision (fine motor skills program) had been in place prior to Y receiving their first EHC Plan and it expected the school to continue this support.
36. For SALT provision, the Council said Y’s school received advice from the SALT service that provision was to be made by teaching staff overseen by the school’s special educational needs co-ordinator. The Council added that a SALT appointment before Y left their school concluded that they did not require ongoing SALT intervention.
37. The Council also said that it did not receive Y’s annual review paperwork from their school until six weeks after the review meeting. It said changes to Y’s EHC Plan were included in the working document and dealt with through the Tribunal process.
38. The Council accepted delays in responding to Miss X’s complaints and proposed to make a written apology and a payment of £200 in recognition of the injustice caused as a result.

Findings

Special educational provision

39. Councils have a duty to secure the special educational provision set out in Section F of an EHC Plan in line with section 42 of the Children and Families Act 2014.
40. When a parent appeals their child’s EHC Plan and continues to send their child to the named school, the law allows us to look at the delivery of the special educational provision that was already in the child’s EHC Plan pending the Tribunal outcome, as long as it was not connected to the matters appealed and we can separate out the issue. If the section F provision is dependent on any of the elements that have been appealed, we cannot investigate.
41. Y’s EHC Plan was school/classroom based. Y attended their school (and later on a part time basis) but they were unable to access the classroom due to being dysregulated. Miss X appealed to the Tribunal as she felt a mainstream school was not suitable for Y. She also wanted changes to the section F support set out in Y’s EHC Plan as it was vague and she believed unenforceable. Around this time, she also complained to the Council that Y was not receiving all the section F provision in their EHC Plan.
42. Part of Miss X’s appeal was that the SALT section was not specific enough or quantified. As the matter of SALT was closely connected to her reason for appeal and not in my view separable, the law says I cannot consider the provision of SALT further.
43. Although Miss X’s appeal did not refer to the provision of a fine motor skills program to be delivered three times per week for 10 minutes each by teaching staff, I have decided it is not separable from those matters she appealed. Therefore, I cannot investigate the matter further. Access to this OT element, and other elements of the EHC Plan do not stand alone. On balance, they are likely affected by the other areas Miss X appealed, including that she felt a mainstream school was not suitable for Y and that various parts of section F were flawed.

Annual review

44. The law required the Council to provide a decision in writing to Miss X within four weeks of Y’s annual review meeting. It did not which was fault. However, the Council’s fault did not cause a significant injustice as changes to Y’s EHC Plan were agreed as part of Miss X’s ongoing appeal to the SEND Tribunal.
45. The Council told us that it had recently completed a recruitment drive and the increase in permanent staff would improve its service delivery. Therefore, I have not considered it necessary to recommend a service improvement in this regard.

Complaint handling and communication

46. The Council accepted its communication was poor. It also accepted delays in its complaint handling and offered to pay Miss X £200 to acknowledge the avoidable frustration and time and trouble she was caused. The Council’s offer sufficiently remedies the injustice caused by its poor complaint handling and communication.

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Agreed action

47. Within one month of this decision the Council will apologise and pay Miss X £200 that it offered during the course of our investigation in recognition of the avoidable frustration and time and trouble caused by its communication and complaint handling. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology.
48. The Council will provide us with evidence it has complied with the above actions.

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Decision

49. I found fault causing injustice and the Council agreed actions to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman