Summary: The Council first failed to establish that a school was not providing Mrs X’s daughter with the physiotherapy set out in her Education Health and Care (EHC) Plan, and then took too long to resolve this. This caused the child to miss essential physiotherapy. The Council also took too long to issue a final EHC Plan, and this caused Mrs X frustration and distress. The Council should apologise to Mrs X and her daughter, and make symbolic payments to Mrs X.

The complaint

1. Mrs X complains that the Council failed to make sure that her daughter, K, received physiotherapy in accordance with her Education Health and Care (EHC) Plan.
2. Mrs X says that as a result of the Council’s failings, K’s mobility has been affected. She is in pain and has to wear a splint. Mrs X has also been caused distress and frustration pursuing this matter with the school and the Council.

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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. 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

5. 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)
6. Mrs X complained to the Ombudsman in January 2025. This means we would usually investigate the Council’s actions from January 2024. However, Mrs X had been pursuing matters with the school since June 2023, (including through its complaints process) and then had to complete the Council’s complaints process before complaining to the Ombudsman. For this reason, I have investigated the Council’s actions from June 2023 until May 2025.

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
9. 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 found

The law and guidance

10. 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.
11. 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)  
12. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

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 purpose of the review is to assess whether the provision has been effective. 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) 
14. 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.

What happened

15. K has an EHC Plan. Since February 2022, the Plan has included daily physiotherapy stretches for 30 minutes following the advice of the physiotherapist. K moved to her current school in September 2022. The Council completed an annual review of the EHC Plan in February 2023.
16. The school had been providing the physiotherapy but in June 2023, Mrs X discovered it had stopped this without telling her. Mrs X pursued this with the school and it told her that it thought the physiotherapy was not age-appropriate for K, but the physiotherapist had not directed the school to stop.
17. Mrs X tried to contact the physiotherapist as the school was not clear what physiotherapy K needed. Mrs X told the school that the physiotherapy is important and must be provided. Mrs X says the school did not respond to her. She however had assumed that the therapy had restarted.
18. The Council completed another annual review of the EHC Plan in January 2024. According to the records, this did not mention the physiotherapy nor check whether it was in place.
19. In early May 2024, K had an orthotics appointment but when K was asked about her school physiotherapy, she said the school was no longer doing this. The health professional at the appointment said this had affected her mobility and K must do her therapy.
20. Mrs X notified the Council that the school was not providing the physiotherapy. She says that the Council acknowledged her email and said the school will respond. I have also seen emails between the school and the Council which reference that the Council was aware in May that the school had not provided the physiotherapy and did not have a copy of the programme. Mrs X pursued this through the school’s complaints process.
21. In June 2024, Mrs X made a formal complaint to the Council. It said it had not been aware that the school had stopped providing physiotherapy. Mrs X had already arranged for the physiotherapist to review K’s needs. The physiotherapist devised a new program and said that if daily stretches are not delivered, K is at risk of deformities.
22. The Council responded to Mrs X’s complaint. The Council said it would stay in contact with Mrs X to make sure the school provide the physiotherapy as instructed.
23. The new physiotherapy programme was due to start in September. There was some delay as K was ill. The physiotherapist then went into the school to train the staff. At the beginning of November 2024, the Council asked the school for its log showing it had provided the physiotherapy. In the meantime, Mrs X and the school corresponded about the physiotherapy. The school told Mrs X that it would do the exercises three times each week, instead of every day as set out in her EHC Plan.
24. Later in November, the school held an emergency review meeting for K’s EHC Plan. The physiotherapist attended the meeting. At the meeting, the school said the exercises did not have to last for 30 minutes and could be managed between school and home. Mrs X was clear that K would not be able to do the exercises at home because her health condition caused her extreme fatigue and exercise was not possible at the end of the day. The Council said it would amend K’s EHC Plan to reflect the new physiotherapy provision. The Council said it would issue the draft and Mrs X would then be able to comment on this before it issued the final Plan.
25. In the meantime, Mrs X had asked it to consider her complaint at stage two of its complaints procedure because K was still not receiving the physiotherapy as set out in her Plan. The Council said that the stage one had addressed the complaint properly, but the Council had not followed up with the school soon enough, nor kept Mrs X informed. It accepted that K would have been impacted by the inconsistent provision of physiotherapy. It apologised to Mrs X and her family and said it would review how it handled complaints about EHC Plans and provision.
26. In January 2025, Mrs X complained to the Council that it had not given her formal notification that it would amend the EHC Plan following the review in November, and had not set out what those amendments would be. The law says that the Council should have issued the notice to amend the EHC Plan by 17 December. Mrs X pointed out that the new Plan should include a new school and the Council had not consulted the setting she had suggested. She complained that the Council had not contacted her since the review and she was worried that the place in the class would no longer be available.
27. The Council responded to this complaint. It apologised that it had not met the legal deadlines and it would write to Mrs X soon to notify her formally of the outcome of the review. The Council sent Mrs X the notification and the amended draft EHC Plan on 5 March. This was 11 weeks late. The Council met with Mrs X to discuss the amendments to the EHC Plan. It should have issued the final Plan by 11 February, but instead issued the final Plan 15 weeks late, in late May.
28. Mrs X continued to have problems with the physiotherapy provision. In June, the school said that it did not always have time to do this and that K should take responsibility for her exercises.

Was there fault by the Council causing injustice to K and Mrs X?

29. The Council has a duty to make sure that K receives the provision set out in her EHC Plan. The Council asked the school to do this on its behalf but it cannot delegate the duty to the school. We accept that the Council cannot keep a watching brief on what happens in the school, but it should be able to show us that it has enough information and sufficient oversight to make sure that it is meeting its duty.
30. As a result of our investigation, the Council has acknowledged that it took too long to resolve the issues with the missed physiotherapy. The Council said it first became aware that the physiotherapy was not being delivered in accordance with K’s plan in July 2024, and it did not finally resolve this until January 2025. Mrs X’s records suggest the Council knew about the missed provision from May 2024. The Council has offered to pay Mrs X £800 in recognition of the missed provision between July 2024 and January 2025.
31. However, I have found additional fault. Mrs X had raised concerns about missed physiotherapy provision with the school from June 2023, and I would have expected the annual review in January 2024 to establish whether the provision was in place and whether it was meeting the outcomes set out in the EHC Plan. The Council’s failure to do so is further fault. This has caused Mrs X uncertainty that had the Council considered thoroughly the provision and the outcomes of the EHC Plan at the review, it may have found the physiotherapy was not in place. It could then have started its attempts to resolve this sooner.
32. The Council said it would monitor the physiotherapy from January 2025 to make sure it was being delivered by the school in line with the EHC Plan. It did ask for information from the school in November 2024 but it does not appear to have followed this up after the provision started properly in January 2025.
33. Mrs X discovered that physiotherapy has stopped again in June 2025 and in the course of her correspondence with the school and the Council about this, it transpired that the school had understood from the most recent annual review in November 2024, that K would be responsible for doing the exercises herself. This casts doubt on whether K had received the correct physiotherapy between January and June 2025. Knowing that the school had difficulty arranging time in the school day to provide K’s physiotherapy, the Council could have done more to monitor this after January 2025.
34. The Council took too long to process changes to the EHC Plan following the annual review in November 2024. The notice of its intention to amend the Plan was around 11 weeks late, and it issued the Plan around 15 weeks after the legal deadline.
35. The impact of the missed physiotherapy is significant as K’s medical evidence says that it will impact on her and puts her at risk of deformities. Mrs X has told us that K is also often in pain. The Council did not do enough to make sure that the physiotherapy was in place between May 2024 and January 2025. Its offer to pay Mrs X £800 in recognition of the missed provision is in line with the Ombudsman’s guidance on remedies.
36. The Council’s failure to establish the missed physiotherapy sooner by way of the annual review in January 2024, and its shortcomings in monitoring this after January 2025, have caused Mrs X uncertainty that the issues may have been resolved sooner and more thoroughly. The Council’s delay in the EHC Plan process has also caused Mrs X distress and frustration.

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Action

37. Within one month of the date of this decision, the Council will:
• Apologise to Mrs X, and if appropriate to K. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay to Mrs X £800 in recognition of the missed physiotherapy provision between May 2024 and January 2025.
• Pay to Mrs X £500 in recognition of this uncertainty that the Council could have resolved the problem sooner and more thoroughly following the annual review in January 2024, and in recognition of the distress and frustration it caused her when it took too long to issue the final EHC Plan in 2025.
• Share this decision with staff and remind the relevant staff that the annual review should be used to check that EHC Plan provision is in place and that the Council is meeting its statutory duty in this regard.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. 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