Summary: The complaint is about the Council’s failure to provide direct occupational therapy that was a provision set out in an Education, Health and Care Plan. And a delay revising a Plan, along with poor communications and complaint handling. We uphold the complaint. The Council has agreed to our recommendations for symbolic payments for missed educational provision.

The complaint

1. My summary of the complainant’s (Miss C) complaint is that the Council:
• failed to arrange the direct occupational therapy (OT) input specified in her son’s (X) Education, Health and Care Plan (EHC) Plan;

• delayed issuing a revised EHC Plan;
• failed to fully fund the package of Section F provision in the EHC Plan;
• communicated poorly and failed to reply to emails; and
• poorly handled her complaint.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
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. 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)
7. 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

8. I have investigated events from January 2024 to Miss C’s February 2025 complaint to the Ombudsman. This is slightly outside the 12 months we would normally consider. But I have used my discretion to consider that date, as it is a suitable starting point for the key issue Miss C complains about.
9. I have not considered the contents of X’s EHC Plans. That is a matter better dealt with by the Tribunal.
10. One of Miss C’s complaints is about the Council’s funding to the School. Funding arrangements between councils and education providers are not something the Ombudsman can usually investigate – that is an issue for the funder and provider to resolve. However, I considered whether if, as a result of this issue, there had been any impact on X’s education. But information from in email from the School to Miss C confirms the School was meeting what it understood to be X’s EHC Plan provision, despite its concerns about the funding. That means there was no injustice to X from this issue, irrespective of any fault. So I have not considered that complaint as part of this investigation.

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How I considered this complaint

11. I considered evidence provided by Miss C and the Council as well as relevant law, policy and guidance.
12. Miss C 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

Legal and administrative background

13. A child or young person with special educational needs 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.
14. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist; 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

15. The council may decide to seek additional advice, for example from an OT or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.
16. 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)

Reviewing EHC 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. The council must review and amend an EHC Plan in enough time before a child or young person moves between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfers include from primary school to secondary school.
19. 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.

The Ombudsman’s “Principles of good administrative practice”

20. The Ombudsman has the power to publicise guidance about good administrative practice, which we call our “principles of good administrative practice”. We use that guidance as a benchmark for the standards we expect when we investigate complaints about councils.
21. One of the core principles in our guidance is the need for councils to be open and accountable. One way councils can meet this principle is by keeping proper and appropriate records.

What happened

22. The information below is a summary of relevant events, and does not include everything that happened during this period.

Background

23. X has had an EHC Plan since 2018. In July 2022, the council where Miss C and X then lived had reviewed X’s EHC Plan. Included within that Plan was direct OT input for six one hour sessions a year.
24. Later in 2022, Miss C and X moved home. Their new home meant they moved across local authority borders and so into the Council’s jurisdiction. X continued to attend the same primary school.
25. In February 2023, as X was moving across key stages, the Council completed its first review of X’s EHC Plan. Included in X’s 2023 revised EHC Plan was:
• information that X had been referred to an OT to access advice on ways of reducing his anxieties;
• at Section F, an instruction under Sensory and/or Physical Health to all staff providing support: “[f]ollow the advice of the Occupational Therapist”;
26. The requirement for direct OT input, from the previous EHC Plan, was not included in the new Plan.
27. X started at a secondary school (in the Council’s area) in September 2023 (School 1). Miss C says September was the last time X had OT support.
28. In December 2023 School 1 tried to refer X for OT support. There was an issue with the commissioning arrangements in the NHS, due to the fact X’s schooling had moved across local authority borders.

Events I have investigated

29. In January 2024 the Council Special Educational Needs and Disabilities (SEND) decision making panel agreed to commission OT. The Council does not have a record of that panel’s reasons.
30. In February X’s caseworker advised Miss C the Council could commission OT support for X. She cited information from the 2022 EHC Plan (completed by a different council) as the basis for the Council commissioning OT support for X.
31. The Council tried to commission OT support. In March it advised Miss C that none of the providers it had approached were able to carry out the work.
32. The Council then decided to commission a new OT assessment. It says it did this as X’s last assessment was from when he was 7, so several years old.
33. In early July School 1 hosted a meeting to carry out an annual review of X’s EHC Plan.
34. The Council says the OT assessors it found had a waiting list. So the OT assessment did not take place until the beginning of September and the therapist prepared a report shortly after.
35. At the beginning of October the Council issued a draft EHC Plan, with a further draft in November.
36. In mid-October Miss C complained about the lack of delivery of direct OT provision. She also complained about a delay in a review of X’s EHC Plan.
37. The Council’s end of November 2024 complaint response:
• apologised for poor communications about its decision making;
• wrongly directed Miss C to School 1 for the complaint about the EHC Plan delay.
38. Miss C asked to escalate her complaint. In mid-February 2025 the Council provided its response at the second stage of its complaints procedure. It:
• apologised for the delayed OT input. It advised it had by then secured provision;
• apologised again for poor communications. It set out what steps it would take to improve its sharing of information with Miss C.
39. After the Council’s complaint response, Miss C complained to the Ombudsman.
40. The Council finalised X’s EHC Plan at the end of June 2025. This noted increased provision in each of the Section F sections in the Plan. The most notable changes were to the “sensory” and “physical health” sections. Many of the additions were coping measures for X during the school day, such as recommendations about seating, shortened lessons, mentoring and sensory breaks. These measures were in part a reflection of the recommendations in the September 2024 OT report. The Plan did not include any requirement for direct OT involvement. Miss C advises she has appealed the contents of this Plan.
41. In response to the enquiries I made to the Council, it advised:
• part of the reason for the delay in progressing the annual review was because of X’s key worker’s unexpected leave. And that due to capacity in its SEND Team, the work was not picked up.
• the information from its February 2023 EHC Plan was taken from the 2022 Plan, written by the old council. That was based on OT assessments from 2019, which is why the SEND Team decided to commission a new assessment.

Was there fault by the Council?

42. Generally, we expect councils to follow the timescales set out in the SEN Code which is statutory guidance (see paragraphs 17-19). We measure a council’s performance against the SEN Code and we are likely to find fault where there are significant breaches of timescales.
43. The Council had carried out its previous review, before a change in X’s key stage, in February 2023. Given the timescales set out in the Code, this means there should have been a review meeting no later than mid-January 2024, a decision on the review by 15 February and an amended Plan by 11 April 2024.
44. School 1 (acting on the Council’s behalf) did not carry out a review meeting until July. And it did not issue a final revised EHC Plan until 30 June 2025. That is a delay of around 14 and a half months. That delay was fault.
45. Miss C says the Council should have been providing direct OT support to X during this period. But the EHC Plan that was most current (from February 2023) did not include any provision for direct OT support. Nor did the June 2025 Plan. So I cannot agree the EHC Plan meant the Council should have been providing that support. And I cannot look at the contents of the EHC Plans, because of Miss C’s appeal rights.
46. However, in early 2024, the Council did agree to provide direct OT support for X. Its panel did not keep a record of the reasons for its decision. I would have expected to see a record of the reasons for that decision (given X’s most current EHC Plan had not requirement for direct OT support). And to not have one was fault.
47. The Council’s key worker cited an out-of-date EHC Plan as a basis for what it was trying to commission. This suggests some confusion by the Council. While it is not for the Ombudsman to find fault with a council seeking to provide more provision than set out in an EHC Plan, in X’s case it was not able to find such provision. So there was fault as the promised support was not provided, which likely led to some raised expectations.
48. Both of the Council’s complaint responses apologised for poor communications, which was fault.
49. One of the complaint responses wrongly directed Miss C back to School 1 for her complaint about the delay in the EHC Plan review. But councils are the lead agency for carrying out assessments for EHC Plans and have the statutory duty to ensure special educational provision in an EHC Plan is made available. That means the School was acting on behalf of the Council. So I would have expected the Council to respond to this part of Miss C’s complaint. To not do so was fault.

Did the faults cause an injustice?

50. I have noted X’s February 2023 EHC Plan did not include any provision for direct OT input. But, nevertheless, the Council tried to commission direct input. It later decided to commission a new assessment, which was then delayed. This fed into its delayed EHC Plan which included a range of strategies likely informed by the OT report.
51. Reviewing this chronology, it is likely that, on the balance of probabilities, the delay in reviewing X’s EHC Plan meant he missed out on the likely benefits of the extra provision in the Plan for a little over three terms. That is an injustice that demands a remedy in terms of a symbolic payment for missed educational provision.

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Agreed action

52. I recommended that, within one month of my final decision, the Council take the following actions.
• Apologise for the faults identified in this statement. 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.
• Make a symbolic payment to Miss C of £4000 for the delay in providing the educational provision set out in X’s later EHC Plan.
• Remind its decision making panel of the Ombudsman’s view that a key part of being open and accountable is by keeping appropriate records of decision making.
53. The Council has agreed to my remedies. It should provide us with evidence it has complied with the above actions.

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Decision

54. 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