Summary: The Council was at fault for delay finalising Ms X’s son’s (Y) Education, Health and Care (EHC) Plan. This caused Ms X distress and delayed her right of appeal to the Tribunal. It also failed to provide Occupational Therapy (OT) and Speech and Language Therapy (SALT) to Y. The Council delayed responding to Ms X’s communication and complaint, which caused additional distress. The Council accepted it was at fault and apologised. It should also make a financial remedy.

The complaint

1. Ms X complained the Council failed to meet the statutory timescales for the annual review of her child, Y’s, Education, Health and Care (EHC) Plan and failed to provide SALT and OT for Y. She also said the Council delayed responding to her correspondence and complaint. Ms X said the matter caused her distress, frustration, uncertainty, and meant Y missed provision he was entitled to. Ms X wants the Council to finalise and deliver Y’s EHC Plan, apologise, and improve its services.

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The Ombudsman’s role and powers

2. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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. 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)
8. 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)

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What I have and have not investigated

9. Ms X complained to the Ombudsman in January 2025. I have investigated the period 12 months before this date, from January 2024. The Council has accepted fault from January 2023 to January 2024 for failing to delivery Y’s SALT provision. I have considered the Council’s acceptance of fault and the injustice this caused when making recommendations in this matter despite not completing a formal investigation of this time period.
10. I have ended my investigation in May 2025 when the Council issued its stage two investigation. Anything that has happened since this time would be premature, Ms X would need to be a new complaint to the Council.
11. I cannot investigate the contents of the Final EHC Plan dated March 2025 as Ms X has used her right of appeal to the Tribunal. I can investigate whether the Council has implemented the provision within the EHC Plan up to the end point of my investigation.

How I considered this complaint

12. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
13. Ms 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 legislation

The Education, Health and Care (EHC) Plan and the Annual Review

14. 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.
15. 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)
16. 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 cease to maintain 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)
17. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Appeal rights

18. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
19. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
20. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
21. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
22. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
23. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

The Council’s policies and procedures

24. The Council’s complaint policy is available online. It says it will respond to stage one complaints within ten working days, or 20 working days where the complaint is complex.
25. If an individual is not satisfied with the response, they can request a stage two investigation. The Council will aim to respond within a further 20 working days.

What happened

26. I have summarised below the key events; this is not intended to be a detailed account.
27. The Council issued Y their first EHC Plan in July 2017.
28. Y’s EHC Plan from September 2022 included two hours per week of SALT.
29. Y has received Education Otherwise Than In School or College (EOTISC) from January 2023.
30. Y’s EHC Plan from July 2023 included two hours per week of SALT. It also included six, three-hour OT sessions per year.
31. In early July 2024, the Council held a review meeting of Y’s EHC Plan.
32. In the middle of July 2024, the Council decided to amend Y’s EHC Plan.
33. The Council shared new proposed amendments to the EHC Plan with Ms X in February 2025 and issued the final amended EHC Plan in March 2025. The Council agreed a personal budget to support the EOTISC package for 39 weeks annually and included a personal assistant, tutor and play therapy. It also included one hour of SALT per week and six, three-hour OT sessions per year.
34. Ms X appealed to the Tribunal in May 2025. She was not satisfied with 39 weeks per year and requested 44 weeks per year.
35. The Council commissioned OT and SALT from August 2025.

The complaint

36. Ms X complained to the Council in October 2024. She said Y had not received any OT provision as per their EHC Plan during the half term and had not received SALT since 2022. She also complained she had not received a draft EHC Plan which was overdue.
37. Ms X complained to the Ombudsman in January 2025. She said she had not received her sons draft EHC Plan; Y had not received any SALT or OT this school year and she had not received a response to her complaint despite chasing. The Ombudsman asked the Council to respond to Ms X’s complaint.
38. The Council issued a stage one response in early April (4) 2025. It upheld Ms X’s complaint about its failure to provide OT as required in section F of Y’s EHC Plan and apologised for the stress caused by the delay in securing it. The Council said it agreed for OT therapy to recommence at the end of January 2025.
39. The Council upheld Ms X’s complaint about its failure to provide SALT. It said it had asked several providers but none could provide the support Y needed. It apologised for the distress caused by the delay securing the provision.
40. The Council also upheld Ms X’s complaint about delay finalising the EHC Plan. It apologised for the distress caused by the delay in finalising Y’s plan. It explained the reason for the delay was due to changes in the staff structure and changes with the providers.
41. Ms X asked the Council for a stage two investigation. She said she appreciated the Council upheld her complaint, but it had not achieved anything. Y was still without OT and SALT.
42. The Council issued a stage two response in late May 2025. It said it upheld Ms X’s complaint at stage one, apologised and recognised its duty under section 42 is absolute. It also apologised for delay with communication and the complaint response.
43. In response to my enquiries, the Council accepted it was at fault for delays in the annual review process and finalising the EHC Plan. It also accepted Y had been without SALT provision since Y began with EOTISC provision (January 2023) and was without OT from September 2024 to the end of the summer term 2025. The Council said it had contacted 12 providers and the delay was due to a lack of availability of suitable providers.
44. The Council accepted it had delayed in responding to Ms X’s complaint and explained it had implemented interim measures to address the backlog including appointing six officers to focus on outstanding complaints. It also accepted its communication had been poor and said it is recruiting within the SEND team and investing in technology and training to increase capacity and respond quicker.

Analysis

45. The Council held the annual review meeting in early July 2024. It should have decided if it was amending the plan within four weeks (early August 2024) and amended the final plan within a further eight weeks (late September 2024). The Council issued the final EHC Plan in March 2025. This was a delay of around six months. This was fault which the Council has already accepted and apologised for. This caused Ms X distress and uncertainty as she did not know what Y’s EHC Plan would look like and it delayed her right of appeal to the Tribunal.
46. Under section 42 Children and Families Act, the Council has a duty to make sure a child receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). Y’s plan includes OT and SALT provision. The Council said it contacted several providers and could not find any suitable. It accepted Y had been without SALT provision since January 2023 and was without OT from September 2024. This was fault. Y missed therapies they were entitled to. The Council put these therapies in place in summer 2025.
47. The Council also accepted it delayed in responding to Ms X’s communication. This was fault which caused extra frustration to Ms X. The Council apologised and explained the changes it is making to increase capacity and respond quicker in the future.
48. Ms X complained to the Council in October 2024. The Council should have issued a stage one response within 20 working days if it treated her complaint as complex (November 2024). It issued the stage one response in April 2025, after Ms X had brought the matter to the Ombudsman’s attention. This was a delay of around five months. This was fault which caused additional frustration and distress to Ms X.

Remedies already provided by the Council

49. The Council has already apologised for the distress caused by delay issuing the final EHC Plan and failing to provide OT and SALT therapies to Y. It has also apologised for the delay responding to her communication and complaint.
50. The Council said it has made changes to its complaints department and recruited new staff to help with the back log. It has also invested in recruitment, technology and training within the special educational needs team. I am satisfied with the service improvements the Council has already made and do not consider further service improvement remedies are required at this stage.

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Action

51. Within four weeks of the final decision, the Council should:
• Pay Ms X £300 for the distress caused by the delay issuing the final EHC Plan and how this delayed Ms X’s right of appeal to the Tribunal.
• Pay Ms X £200 for the distress caused by delay responding to her general correspondence and complaint.
• Pay Ms X £5,000 for failing to provide Y SALT from January 2023 to the end of the academic year 2025 (two hours per week from January 2023 until the date of new plan in March 2025 when it was reduced to one hour per week) and failing to provide OT from September 2024 to the end of the academic year 2025.
52. The Council should provide us with evidence it has complied with the above actions.

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Decision

53. 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