Summary: Ms X complained the Council failed to organise provision in her son’s Education, Health and Care Plan. We found fault because the Council took too long to source and deliver specialist services and a gym membership for him. This caused Ms X avoidable distress, frustration and uncertainty. It also meant her son missed out on services he was due. To remedy this injustice, the Council has agreed to apologise to Y and Ms X and make a payment to her.

The complaint

1. Ms X complains about the Council’s delay organising and starting provision set out in her son, Y’s, Education, Health and Care (EHC) Plan after it was issued in July 2024.
2. Ms X says this has caused avoidable distress and frustration and that Y missed out on provision he was due.

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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)
5. 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

6. My investigation begins in July 2024 when the Council issued Y’s first final EHC Plan.
7. My investigation ends when Ms X brought her complaint to us at the beginning of March 2025.

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How I considered this complaint

8. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Ms X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

10. A child with special educational needs (SEN) may have an EHC Plan. This 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 SEN and Disabilities (SEND) Tribunal or the council can do this. 
11. The EHC Plan is set out in sections which include Section F, which is the special educational provision needed by the child or the young person. 
12. 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)  
13. 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.
14. 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 Plan review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

What happened

Background and context

15. Y had an EHC Plan before the period of this investigation. Ms X appealed various parts of the previous plan in place via the SEND Tribunal. Tribunal proceedings ended and the Council issued a new amended final EHC Plan on 1 July 2024 as a result. My investigation begins when the new plan was issued.
16. Ms X had previously engaged the services of an advocate, Ms Z. Ms Z dealt with Ms X’s complaint to the Council.

July 2024 onwards

17. Section F of Y’s new EHC Plan set out what provision should be organised, included was:
• a gym membership to support two hours of physical activity per week;
• ten hours of occupational therapy (OT) support per year, made up of four hours direct and six hours indirect support;
• that all staff working most closely with Y to have enhanced speech and language therapy (SALT) training;
• that Y should have three 30-minute sessions per week of input based on a social communication programme (SALT);
• 90 minutes of review time per half term with a SALT therapist;
• a minimum of two hours SALT training for all staff working with Y; and
• six hours per year for a speech and language therapist to assess, review, write reports for and attend Y’s annual EHC Plan review.
18. Ms Z made a complaint to the Council at the end of August. Relevant to this investigation, Ms Z said the Council had not organised parts of the provision set out in Y’s recently finalised EHC Plan. She said Y had not received a gym membership and no OT or SALT had been commissioned.
19. The Council sent its stage one complaint response at the beginning of October. It fully upheld Ms Z’s complaints about provision which had not been organised. It said this was not acceptable, apologised and said it would try and rectify things. The Council offered a remedy payment of £460, said this was calculated using Ombudsman guidance and was for eight weeks of missed provision. It said the amount had been halved from the amount in the guidance as missing elements were not core education and tuition was already in place.
20. Ms Z escalated Ms X’s complaint at the end of October. She complained the Council had still not organised the gym membership, OT and SALT.
21. A new caseworker, Officer J, was moved to Y’s case in mid-December 2024. She made contact with Ms X and confirmed she had begun to contact OT and SALT providers. She suggested an appropriate gym membership for Y. After further discussion, membership costs were agreed for a local gym at £29.95 per month.

2025

22. Officer J made a referral to an OT provider at the beginning of January. Around the same time, the Council made a one-off payment to Ms X to cover eight months of gym membership from December 2024 to July 2025.
23. The Council sent its stage two complaint response in mid-January. It repeated its previous offer of £460 to cover July and September 2024. It again apologised and offered a further 10 weeks of remedy payment at the same rate. This totalled £575 and was to cover October to December 2024. The Council said its caseworker would be in touch to clarify when the provision would start and who would deliver it. The Council signposted Ms X and Ms Z to the Ombudsman if they remained unhappy.
24. At the end of January, the Council’s newly appointed OT provider held an initial contact visit with Y and then later began a programme of work.
25. Ms X brought her complaint to us at the beginning of March 2025. Evidence shows the Council had still been unable to source any SALT by this time. Ms X said she had not accepted any payment from the Council.
26. An annual review of Y’s EHC Plan was carried out late in May 2025. An amended Final EHC Plan was issued at the beginning of July 2025.

Analysis

Occupational therapy

27. In response to my enquiries, the Council confirmed Y did not receive any OT input from July 2024 to January 2025. The Council did not explain the delay in organising this. I have seen no evidence of any efforts made to secure OT before Officer J was moved to Y’s case in mid-December 2024. Matters then began to progress and she began to contact some potential providers.
28. The Council also said after an initial OT visit to Y at the end of January 2025, the appointed therapist confirmed all elements of the agreed package would be delivered within a revised timeframe. It said that from September 2025, the OT provision would be delivered across the whole of the academic year, as intended in the EHC Plan, and that Ms X had been advised of this.
29. Not organising OT for Y was fault on the Council’s part. It allowed things to drift despite complaints from Ms Z and assurances in the stage one complaint response that it would rectify matters. This caused Ms X avoidable distress, frustration and uncertainty. It also meant Y missed out on services he should have received. I acknowledge the Council has already suggested a partial remedy payment for the loss of OT provision for Y which I discuss further below. I have made a recommendation below to remedy further injustice caused to Ms X and Y during the period of my investigation.

Speech and language therapy

30. As with the OT provision, I have seen no evidence of the Council taking any action to source SALT provision before Officer J moved to the case in December 2024.
31. When Officer J moved to Y’s case, some progress was made in beginning to investigate possible SALT providers during December 2024 and January 2025. However, evidence shows that after these initial enquiries, there was little further action trying to source SALT until mid-May 2025. This is after the end of my investigation and around the time his annual EHC Plan review was due to begin.
32. In response to my enquiries, the Council acknowledged SALT was not implemented as expected and said the delay was due to internal factors within the Council. I am satisfied the Council allowed things to drift. Not organising SALT was fault. It caused avoidable distress, frustration and uncertainty for Ms X. It also meant Y missed out on provision he was due. I acknowledge the Council has already offered a partial remedy for this, which I discuss further below. I have made a recommendation below to remedy further injustice caused to Ms X and Y during the period of my investigation.
33. Ms X confirmed that SALT had been organised after my investigation period ends, so I will make no further recommendation related to this.

Gym

34. In response to my enquiries, the Council acknowledged the delay and inconvenience caused by not organising the gym membership in a timely manner.
35. This provision should have been in place from the beginning of July 2024. Not delivering this was fault on the Council’s part. This caused avoidable distress and frustration for Ms X. It meant Y missed out on 4 months of the provision he was due. I have made a recommendation below to remedy this injustice. The recommendation covers July 2024 and September to November 2024 inclusive.

The Council’s overview

36. As part of my enquiries, I asked the Council what procedures it had in place to check if provision in a new or amended EHC Plan was being delivered.
37. The Council said allocated caseworkers were responsible for monitoring the delivery of provision on their caseload and the Council requested termly reports from tutors on attendance, progress and barriers to learning. The Council also said complaints and concerns were addressed using its complaints procedure.
38. Whilst I note the Council’s response, this is contrary to Ms X and Y’s experience. Although the Council’s stage one response agreed the situation with the gym membership, OT and SALT provision was unacceptable, I have seen no evidence of any action taking place on these issues from July 2024 to December 2024 when Officer J was moved to the case.
39. I am therefore satisfied the Council does not have appropriate oversight in place regarding the delivery of Section F provision in a new or amended EHC Plan. This is fault. It caused Ms X avoidable distress, frustration and uncertainty and meant Y missed out on provision he was due. The Council has recently agreed to a service improvement about these issues in an unrelated but similar case. I will therefore make no further recommendation related to this.

The Council’s suggested remedy

40. The Council has previously offered a total of £1035 for the period of July to December 2024 to remedy the lost OT and SALT provision. Ms X did not accept this. I am satisfied the amount is in line with our guidance on remedies and recognises the injustice caused by the missing provision.
41. However, the amount offered does not take January and February 2025 into consideration. I have made a recommendation below to remedy this period until my investigation ends at the beginning of March 2025.
42. I have made a separate recommendation below linked to Ms X’s overall distress and missing gym provision for Y.

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Agreed action

43. To remedy the injustice caused by the faults I have identified, the Council will take the following action within four weeks of the date of my final decision:
• apologise to Ms X and Y for the identified injustice;
• make a symbolic payment to Ms X of £250 to reflect the avoidable distress, frustration and uncertainty caused by the identified injustice;
• make a symbolic payment to Ms X of £1495 (which includes the original remedy amount offered) to remedy Y’s lost OT and SALT provision; and
• pay Ms X £119.80 for four months of Y’s missed gym provision.
44. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
45. Payments made are in line with the Ombudsman’s guidance on remedies.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman