Summary: The complaint is about how the Council responded to a complaint, about Mrs E’s son’s Education, Health and Care Plan. The Council did not arrange occupational therapy that was in the Plan, the complaint responses were inadequate and the Council did not provide the remedies it said it would. We uphold the complaint. The Council delayed providing the therapy sessions, did not issue a decision following a review and did not ensure the child received as much educational provision as he was able to after he stopped attending school. The Council’s complaint responses were also inadequate. This caused distress to Mrs E and her son likely missed educational provision. The Council has agreed to apologise and make symbolic payments as a remedy.

The complaint

1. The complainant, (Mrs E) complains about the way the Council responded to her complaint about her son’s (X) Education, Health and Care (EHC) Plan. Specifically, the Council’s responses:
• did not acknowledge that in an earlier complaint response the Council agreed that school based occupational therapy (OT) would start within 10 working days. Instead the Council said it could not investigate the issue;
• were inadequate and lacked sufficient investigation. For example, one response references July 2024, while her son's absence from school began in December 2023;
• do not provide in their remedies enough recognition of the injustices they had been through, or their avoidable educational costs.

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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 can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. The Special Educational Needs and Disability Tribunal hears appeals about the content of EHC plans including the description of a child’s special education needs (SEN) and the SEN provision in an EHC plan.
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
7. 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)
8. 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

9. Mrs E first contacted us in November 2024. I have considered events back to October 2023. This is slightly over 12 months before Mrs E’s complaint to us (see paragraph 3). But it is reasonable to look back, as it is when the Council provided its first response to Mrs E’s earlier complaint and when it issued a revised EHC Plan. It was reasonable for Mrs E to wait a while after that before chasing missed OT provision. So she first became aware there might be an issue within 12 months of her complaint to the Ombudsman. The end date of my period of investigation is November 2024, when Mrs E complained to us.

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How I considered this complaint

10. I considered evidence provided by Mrs E and the Council as well as relevant law, policy and guidance.
11. Mrs E 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

12. Children with special educational needs may have an EHC Plan. Councils are the lead agency for carrying out assessments for EHC Plans.

Maintaining the EHC Plan

13. 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)
14. 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 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.

Reviewing EHC Plans

15. A 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 of Practice paragraph 9.176) 
16. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
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 (“the Code”) paragraph 9.194). 
18. Case law sets out a council’s decision following a review meeting should happen within four weeks of the meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Alternative provision

19. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
20. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this, and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
21. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.
22. The courts have considered the circumstances where the section 19 duty applies. Case law has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for them to access. The applicable test is whether the educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

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

Background

24. X was assessed for an EHC Plan in 2020, towards the end of his time at primary school. As part of the needs assessment an OT produced a report. The recommendations from this report were adopted in the final EHC Plan and included the following:
• the OT service would support school staff to deliver OT resources in the school, facilitating staff to incorporate OT strategies into X’s learning and daily routines;
• an OT would work with X to support and promote an increase in his independence using modelling, practice and teaching of strategies. The OT service would provide this through two visits within a 12 month period;
• once the OT service had finished their visits, X would be supported by universal and targeted OT provision.
25. X began at a secondary school in September 2021. The OT provisions set out in his first EHC Plan were carried over into later versions of his Plan, after annual reviews.
26. In June 2023 the school facilitated a review of X’s EHC Plan. A manager and case officer from the Council’s special educational needs and disabilities (SEND) Team attended the review meeting. The Council officers raised concerns that X was not receiving OT provision at the school, which the manager asked the case officer to chase with the NHS’s OT service. The draft EHC Plan did not recommend any changes to the provision in X’s EHC Plan.

Events I have investigated

27. Mrs E complained when the Council did not issue a final revised EHC Plan, following the annual review meeting. The Council’s October response:
• apologised for the delay, which it said was largely due to a change in the case officer;
• said its case officer contacted the OT team who advised it would start X’s OT sessions in the following week. It apologised for the delay.
28. At the end of October the Council issued a revised final EHC Plan. The OT provisions in it were unchanged from the previous Plan.
29. In November 2023 an NHS OT visited X’s school twice. Before the visit she telephoned Mrs E to discuss X’s needs. She advised that her service had agreed to provide the two visits in X’s EHC Plan and an extra visit, due to the delay in arranging visits. After that, the OT service’s direct role would end.
30. The NHS’s records and a later report the OT wrote say:
• X was absent from school for her first visit, but she did speak to his teacher;
• X was present for the second visit;
• she was due to carry out a third visit in January 2024, but was not able to, as by that time X had been absent from school;
• the OT carried out a full review during the November 2023 sessions; and
• she spoke to Mrs E shortly after her second session with X.
31. Mrs E asked to escalate her complaint. In December 2023, the Council’s response:
• upheld her complaint about missed OT provision;
• upheld a complaint about poor communications;
• noted X had not received the OT visit that was set as an outcome of its stage one response;
• said, within 10 working days, the Council’s SEND Team would develop a plan to deliver the missed OT provision.
32. (As part of her complaint to the Ombudsman) Mrs E says that X did not receive the OT provision set out in the Council’s complaint response.
33. Around the end of December 2023 X stopped attending school, due to his anxiety. An appendix to a later annual review report listed some attempts in January 2024 by the school to maintain X in some attendance at the school. From the end of January, the school’s management agreed for X to follow a part-time timetable. Shortly after, school staff met with Mrs E and the Council’s case officer.
34. In February, March and April, unsuccessful attempts were made by the school to get X to attend.
35. In June 2024 the school held a meeting for, what the record calls, an annual review of X’s EHC Plan. The record of the meeting noted:
• for the time after X stopped attending school, he had been receiving counselling about his high anxiety levels;
• the school had produced a provision map of the support it planned to provide X out of school. This detailed the provisions in his EHC Plan and the plan to deliver them at home;
• the school had concerns about whether X would be able to return to school;
• Mrs E acknowledged the school’s concerns, but thought X was by then moving forward. So she hoped he would be able to return to the school, as he needed the structure and socialising school would provide;
• the education provision part of X’s EHC Plan was no longer accurate and needed amending.
36. As part of the EHC Plan review, in July, an OT produced a new report, based on her November 2023 meetings with X. The report recommended the school use universal services to support X’s needs. The report said “[X]’s episode of provision is complete, and …[a] change of provision is recommended. Therefore [X] is discharged from OT”. The Council did not send Mrs E a copy of this report.
37. In November the Council and school carried out, what the record calls, an interim review of X’s EHC Plan. This included a programme for X’s reintegration back into the school. The record of the review had information about the alternative provision from the school. The school advised it was not able to continue to fund that provision into the new year. It suggested the Council fund X’s education out of school. Mrs E reaffirmed her wish for X to return to school.
38. Mrs E made a new complaint about what the school had been providing X in the twelve months that he had been absent from school. The Council’s stage one response noted the provision set out in the June provision map. Mrs E asked to escalate her complaint. She noted it was only from the beginning of November that X received any alternative provision.
39. At the beginning of January 2025 the Council’s SEND Team agreed funding for the school to provide X with further provision out of school, until the end of the school year.
40. The Council’s complaint response upheld Mrs E’s complaint, as X had not been receiving enough education. It noted a meeting had taken place to address that issue. It said it wanted to hold an interim review in late spring to review the provision and reintegration plan.
41. Mrs E responded, pointing out inaccuracies in the Council’s response about what the school had provided. The manager who had provided the complaint response explained it set out the proposed provision, not what X had actually received.
42. In mid-January the Council wrote to Mrs E advising it was not proposing to make any changes to X’s EHC Plan, following the November 2024 review. It advised Mrs E of her right of appeal.
43. Mrs E continued with her complaint. In early February the Council provided its response at the second stage of its complaint procedure. It:
• upheld her complaint, as the Council had not provided her with a right of appeal following its June 2024 review of X’s EHC Plan;
• noted direct OT provision was not in X’s EHC Plan;
• made an offer of £200 for frustration and uncertainty caused by the faults it had identified. It later added an offer of £900 for X’s missed education.
44. Mrs E was dissatisfied with the Council’s complaint response, so she complained to the Ombudsman.
45. In November 2025, after a review, the Council issued X an amended EHC Plan.

Was there fault by the Council?

Chronology of the annual reviews

46. Generally, we expect councils to follow the timescales set out in the SEN Code of Practice (see paragraphs 15-18) which is statutory guidance. We measure a council’s performance against the Code and we are likely to find fault where there are significant breaches of timescales.
47. The Council’s decision on the previous year’s review of X’s EHC Plan was in October 2023. The Code timescales meant the Council (or school on its behalf) would have needed to have held an annual review meeting by the end of September at the latest, with a decision by the end of October 2024. If it intended to amend the EHC Plan, the Council should have produced its amended Plan by the third week in December 2024.
48. The school hosted, on behalf of the Council, a review meeting in June 2024. The record of the meeting describes this as an annual review, although the timing of this is incorrect. The Council did not issue a decision following that review. This was despite the record noting X’s Plan needed amending. That was fault.
49. The Council held another review meeting in November 2024, which the record says was an interim review. This review did not identify any changes needed in X’s EHC Plan. In January 2025 the Council issued a decision that there was no change in X’s EHC Plan.

Direct OT provision after the October 2023 EHC Plan

50. The October 2023 version of X’s EHC Plan contained provision for two sessions of direct OT input over the course of the year (ie by the time of the next review date in October 2024).
51. The OT visited the school twice in November 2024, so outside the timescale set out in his EHC Plan. The Council’s 2023 complaint responses show the Council had intended to provide these sessions earlier in the year. That was delay and fault.

The July 2024 OT report

52. An OT produced a report after the June 2024 review meeting. The report says:
• it was based on the OT’s November 2023 meetings at the school; and
• the OT service had ended its involvement and X could receive any OT input via general provision.
53. The Council says it agreed with the OT’s report and it intended that direct OT involvement would end after the initial sessions. But when the Council made its January 2025 decision on its review, the decision was there was no change to X’s EHC Plan.
54. As the Council’s decision left X’s EHC Plan unamended, that meant the new Plan still contained provision for two OT sessions for the year from its issue. The Council’s later complaint response suggests that was not the decision it had intended to make. In that case its no change letter was incorrect and fault.

Alternative provision – Section 19 of the Education Act

55. I have only looked at events until Mrs E’s November 2024 complaint to us.
56. X stopped attending school around the end of December 2023. The Council has a record of steps the school was taking after that to keep in touch with X and steps it was attempting to reintegrate X back to school attendance.
57. The record of the June 2024 EHC Plan review meeting has an account of the out of school provision the school had in place and planned to provide. At that time, the school’s view was it could manage the provision of X’s education. And there was a plan to reintegrate X to the school.
58. But by then X had been absent from school for six months. In response to Mrs E’s complaint the Council accepted X had not received enough education. I agree. It has paid a remedy for its assessment of injustice. I discuss that further below.

Provision in the EHC Plan – Section 42 of the Education Act

59. Irrespective of the Council’s duties under section 19 of the Act, the Council’s non-delegable duties under Section 42 of the Act were to ensure X received as much as possible of the contents of his EHC Plan. The Ombudsman can investigate this part of the school’s provision, in relation to how the Council monitored what the school was doing (see paragraphs 13 &14).
60. The record of the June 2024 review meeting suggests all parties then accepted that, in the period immediately preceding the review, X had had limited ability to receive much in the way of provision, due to his anxiety levels.
61. We accept that, where a child is absent from school for reasons such as anxiety, it might not be possible for them to receive all the provision set out in their EHC Plan. But I would have expected to see more involvement from the Council in this period checking what provision X could receive to, at least partly, meet some of the provision in his EHC Plan. Although the records show a degree of planning, especially around possible reintegration, my decision is the Council did not do enough to enquire about EHC Plan provision delivery in the interim. That was fault.

The complaint responses

62. The Council’s first complaint response recommended an OT visit the school, showing it was unaware the OT had already visited. I asked the Council for its records about this, but it was not able to provide anything. Later complaint responses provide confusing information about the facts of the case: around OT recommendations in reports the Council did not send Mrs E, and the status of provision in X’s EHC Plan. That was fault.

Did the fault cause an injustice?

The EHC Plan reviews

63. The June and November 2024 reviews came to different conclusions about the need for changes to X’s EHC Plan. That was not necessarily fault, as they were assessing X’s needs at different points in time. But the lack of a decision following the June meeting is fault and it creates uncertainty.
64. The January 2025 decision was there was no change to X’s EHC Plan. The Council says it was not its intention that this meant direct OT provision should continue. It cites the July 2024 OT report in support of that. But it did not send a copy of this report to Mrs E. So whatever the Council’s intention, Mrs E’s understanding was direct OT provision – of two sessions for the following 12 month period – was still part of the EHC provision. That was an understandable conclusion for her to reach and was due to the lack of clarity because of the Council’s fault. That meant she lost her chance to appeal the Council’s decision. We cannot now know what the outcome of that appeal would have been. That creates further uncertainty.

The missed provision

65. The Council has conceded X did not receive as much education as he could have expected. It has paid Mrs E a remedy for this. I agree with the Council’s conclusion. My assessment is that this missed provision begins at the end of January, after the school’s initial attempts to get X back to school. And it ends around the beginning of November, when some provision began to be introduced. So the period is around two and a half terms.
66. There is some evidence that X might not have been able to access much education. But it is likely he could have received more than he did do during this period. My view, when compared to the Ombudsman’s guidance on remedies, is the Council has not made a large enough symbolic payment for this period.

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Agreed action

67. In addition to the remedies the Council has already made, I recommended that, within a month of my final decision, it make the following remedies.
• Apologise. Our guidance on remedies 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.
• For the uncertainty caused by the faults in the Council’s EHC Plan review process, make Mrs E a payment of £500.
• For X’s missed educational provision, in addition to the payment the Council has already made, pay Mrs E a payment of £2350.
68. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.

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Decision

69. 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