Summary: Mrs X complained the Council failed to review Y’s Education, Health and Care Plan on time and failed to ensure he received all the provision he was entitled to. We find the Council at fault, causing frustration and uncertainty and meaning Y did not receive the provision he was entitled to. The Council has agreed to apologise and make a payment to recognise the injustice.

The complaint

1. Mrs X complains about the Council’s handling of her son, Y’s Education, Health and Care (EHC) Plan. Specifically, Mrs X says the Council:
• Failed to hold an annual review on time in June 2024;
• Failed to ensure all the Section F provision was delivered from January 2024; and
• Failed to ensure Y’s ABA tutor was used on a 1:1 basis as set out in his EHC Plan.
2. Mrs X says this has caused real distress and has hindered Y’s progress.

Back to top

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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. 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)
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 Tribunal in this decision statement.
6. 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)
7. 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. (Local Government Act 1974, section 26(5), section 34(B)6)
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)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

10. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
11. Mrs X first brought her complaint to the Ombudsman in February 2025 meaning anything that took place before February 2024 has been raised late. However, I have exercised discretion to look back to January 2024 as the start point of my investigation.
12. Mrs X appealed the final EHC Plan that was issued for Y in December 2024 to the Tribunal. I have not investigated any matters related to the content of this EHC Plan or the appeal Mrs X submitted.
13. We also cannot usually investigate complaints unless we are satisfied the Council has had a chance to look into them first. This includes events that are linked to or ongoing from the complaint that has been brought to us. For this reason, I have not investigated beyond the point the Council issued its final response to Mrs X’s complaint in January 2025.
14. I have investigated Mrs X’s complaint, as set out above, from January 2024 up until January 2025. Any mention of events that took place either before or after those times are for reference only.

Back to top

How I considered this complaint

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

Back to top

What I found

Relevant law and policy

17. A child or young person with special educational needs (SEN) may have an 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. 
18. 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) 
19. 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) 
20. 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)

What happened

21. I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
22. Y has SEN and his education is supported by an EHC Plan.
23. Y’s EHC Plan named School A and provided for an individualised curriculum adapted to his needs, teaching assistants and ABA tutors assigned on a 1:1 basis, a personalised Speech and Language Therapy (SALT) programme, and a personalised Occupational Therapist (OT) programme.
24. Y’s provision was delivered at School A, using school-based therapists to deliver his SALT and OT programmes.
25. In February 2024 Mrs X withdrew her consent for the school-based therapy provider to deliver Y’s SALT and OT programmes. Mrs X acknowledged the Council had a duty to secure provision for Y but said there was no reason why this provider should be the one used.
26. The school-based therapy provider offered to assign new therapists to deliver Y’s SALT and OT programmes while it investigated any concerns she had, but Mrs X refused this.
27. Mrs X asked the Council if it would consider the delivery of the SALT and OT programmes through a personal budget, using therapists she found herself.
28. Y began receiving SALT provision Mrs X arranged privately.
29. The Council responded to Mrs X to explain a school-based therapist would be preferred as they can liaise and train school staff directly. However, it said it would not oppose therapists sourced by Mrs X, subject to costs, if the therapies took place at school.
30. Y’s EHC Plan annual review fell due on 23 June 2024, but the Council missed the deadline to complete this. Mrs X contacted the Council to explain Y’s EHC Plan annual review was now overdue.
31. The Council acknowledged it was late in arranging the annual review. Due to school summer holidays, the annual review was set for 4 October 2024.
32. In August 2024, the Council contacted Mrs X to confirm provision remained in place for Y at School A and asked her to provide consent for the school-based therapists to deliver Y’s OT programme. Mrs X did not agree to this.
33. From September 2024 Y started back at School A. As the Council had not identified any other OT’s, the school-based therapy service again offered to begin OT therapies for Y ahead of the annual review, but Mrs X declined this.
34. In September 2024, Mrs X confirmed the private SALT arrangements to be delivered at school. The Council and the school-based therapy service agreed to try and source an alternative OT, however they could not find one who could deliver the sessions at School A. The Council again stated the school-based therapists could provide the OT programme whilst it sourced a third-party therapist to avoid a gap in provision, but Mrs X did not consent to this.
35. By December 2024, the school-based therapy service had sourced a third-party OT who was able to deliver Y’s OT programme and wrote to Mrs X with the details of this. Mrs X responded to explain she had now sourced her own OT and would be in touch with the Council to provide information about the costs of this. The third-party OT withdrew their offer of services due to non-response. Mrs X then provided the Council with her costings for a personal budget to be included in Y’s EHC Plan on 19 December 2024.
36. The Council issued a final amended EHC Plan on 23 December 2024. Mrs X appealed the content of this EHC Plan to the Tribunal.
37. Responding to Mrs X’s complaint in January 2025, the Council offered to backdate therapy provision for the time Y was not in receipt of the SALT and OT programmes set out in his EHC Plan. Mrs X instead requested a financial alternative to the provision.
38. The Council has said it would be willing to offer £1,446.25 to cover 22.25 hours of missed OT provision, calculated at its usual provider’s rate of £65 per hour. The Council has said it believes it has discharged its duty to secure SALT provision for Y as this was available throughout the timeline I have investigated.

Analysis

Alleged failure to hold annual review

39. The annual review of Y’s EHC Plan was due by 23 June 2024. That the Council did not review Y’s plan by that date is fault and meant Mrs X had to go to the trouble of chasing it. The delay caused uncertainty and frustration for Mrs X, as well as frustrating her appeal rights, which is injustice. This injustice continued until Y’s final EHC Plan was issued in December 2024.
40. The review did not result in increased provision for Y, so I do not find he missed out on educational provision he would otherwise have been entitled to as a result. However, I find the Council ought to make a payment to remedy the personal injustice to Mrs X.

Alleged failure to secure OT and SALT provision

41. The Council was under a duty to secure all the provision set out in Y’s EHC Plan and it did this through use of resources at School A. From the start point of my investigation in January 2024, all the provision named in Y’s EHC Plan was available to him, and I do not find the Council at fault here.
42. However, Mrs X said she did not feel the school-based therapists were suitable to deliver the programmes Y’s EHC Plan provided for and asked the Council to consider a personal budget so she could arrange alternatives. Y’s EHC Plan does not specify a particular provider for the SALT and OT programmes or say these needed to be delivered by the school-based therapists. It is not for me to interpret the intention of the EHC Plan, however the Council agreed that, subject to costs, it would not oppose the use of alternative therapists and sought to source these. The Council displayed a willingness to work with Mrs X towards securing the provision for Y in a different way and I do not find it at fault here.
43. While the Council did initially secure all provision for Y and agreed to consider alternative OT and SALT providers, it was not able to implement an alternative OT for Y throughout the timeline I have investigated. This amounts to fault and means Y did not receive the provision he was entitled to, which is injustice. The Council has now offered to backdate OT therapy provision for Y or make a payment of £1,446.25 based on its provider’s rate of £65 per hour to cover the missed OT hours. I find this to be a suitable remedy in the circumstances.
44. The Council did not make an offer to cover the SALT sessions Y did not receive from its chosen provider as it has said Mrs X made the decision to source these hours privately. While I agree the Council did secure this provision and also took steps to try to secure it in another way, it did agree to work with Mrs X towards alternative options, so I am of the view the SALT hours Mrs X sourced also ought to be reimbursed at up to the same rate as the Council’s usual provider. As the costs exceed those of the Council’s usual provider, I would not expect the Council to meet the full cost of the SALT Mrs X has incurred. I say this because Mrs X put private provision in place before agreeing the cost of this with the Council, and despite the Council offering to consider alternative options.
45. The Council has said Mrs X has provided it with invoices showing she paid for 14.5 hours of SALT between February 2024 and December 2024. At the Council’s usual rate, this equates to £942.50. This is the amount I find the Council should reimburse Mrs X.

Alleged failure to secure 1:1 ABA tutor

46. Y’s EHC Plan provided for an ABA tutor to be used on a 1:1 basis. The Council secured this tutor at School A and I do not find it at fault here.
47. Mrs X has said the ABA tutor is often used to assist other students in Y’s class in general. The Council has said School A has told it this does not happen. In cases like this where there is a conflict of testimony, we make findings based on the balance of probabilities. Sometimes it is not possible to come to a finding, even on balance, where there is no independent evidence and both sides have differing views on the same events. It is not my role to say what goes on inside the school, and there is not enough evidence for me to find the Council at fault here.

Back to top

Action

48. To remedy the injustice caused by the faults identified above, the Council should complete the following actions within one month of the date of this decision:
• Write to Mrs X to apologise for the delay in completing the annual review of Y’s EHC Plan and for failing to ensure he received all the provision he was entitled to between January 2024 and January 2025. 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 Mrs X £200 in recognition of the frustration and uncertainty caused by the delays in completing Y’s EHC Plan annual review.
• Pay Mrs X £1,446.25 in recognition of the missed OT provision between January 2024 and January 2025.
• Pay Mrs X £942.50 in recognition of the missed SALT provision between February 2024 and December 2024.
49. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

50. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Back to top

Investigator's decision on behalf of the Ombudsman