Summary: We found fault on Mrs Y’s complaint about the Council failing to ensure her son, Z, received provision set out in the Education, Health and Care plan. There was a repeated failure to ensure Z received the provision from two schools, provide the correct level of funding, along with a failure to meet statutory timescales for the annual review process. The Council agreed to send an apology for the failings, pay a symbolic payment for the injustice caused, as well as a payment towards private tuition costs. It would carry out a review to ensure no future repetition of the failures found.

The complaint

1. Mrs Y complains about the Council failing to ensure her son’s provision set out in his Education, Health and Care (EHC) plan was provided; as a result, he did not receive all the occupational therapy, dyslexia support, and speech and language therapy he should have done. He is falling further behind his peers and is struggling with communication as a result.

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The Ombudsman’s role and powers

2. 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)
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. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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

7. As Mrs Y complained to us in May 2025, we would usually only investigate from May 2024. This is because the law says we cannot investigate late complaints unless we decide there are good reasons. I exercised discretion to investigate from the start of April 2024 as she said this was when the school contacted the Council about non-provision under her son’s EHC plan.

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How I considered this complaint

8. I considered evidence provided by Mrs Y, the notes I made of our telephone conversation, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mrs Y and the Council. I considered their responses.

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What I found

EHC plan process

9. 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. 
10. 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)  
11. 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 show appropriate oversight in gathering information to fulfil their legal duty. As 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

12. Mrs Y’s son, Z, has an EHC plan which was issued in May 2024. She said his primary school (school 1) told the Council in April/May 2024 that he had not received the occupational therapy (OT) set out in his EHC plan since December 2023. He should receive 18 hours of OT each year but only received five hours. The Council has no record of being told this by the school. There were also problems when he moved to high school. (school 2)

2024:

13. In May, Mrs Y made a formal complaint to the Council about the failure to provide what was in Z’s EHC plan. The same month, the Council agreed to fund £1,300 dyslexia tuition a year which was included in school 1’s budget.
14. In June, the Council responded to her complaint. It was sorry Z had not received OT since December 2023. The Council agreed for school 1 to use a private OT to provide sessions for the rest of the term. If the school could not arrange it, the Council would by using an alternative private OT.
15. In September, Z started at school 2.
16. In October, Mrs Y complained he was not receiving the provision set out in his EHC plan which included a dyslexia tutor (the tutor), speech and language therapy (SALT), and OT. She told the Council she had a private tutor who could be used but, it failed to respond. Mrs Y also said he was not receiving his hours of support set out in his EHC plan.
17. An officer replied saying she was contacting a list of private providers for the outstanding SALT and OT provision. No evidence of the Council doing this was provided. The officer accepted there were delays with Z receiving his allocated provision.
18. The following month, the Council told Mrs Y the tutor could start. This was in response to her saying the dyslexia provider had no contact from the Council about a suitable time for Z. An officer replied saying she had spoken with the school and agreed some actions which included the OT and SALT provision to be put in place as soon as possible.
19. In December, the OT said she could start delivering provision in January 2025 along with additional, missed sessions since the summer term.

2025:

20. In January, the Council sent its stage 1 response to her complaints about EHC plan provision that was not in place. The Council accepted there was fault in not providing the full amount of OT required in the summer of 2024 and apologised.
21. It recommended six direct OT sessions as a remedy. I have no information showing these were provided. It noted the school employed a dedicated teaching assistant to provide 1:1 support which was working. It agreed to fund the tutor who also started working with Z. It was still working on getting the outstanding SALT provision which it would continue to monitor. It accepted the school was not given the correct level of funding to meet his needs. It apologised and confirmed it now had the correct level.
22. Later in January, the dyslexia provision started.
23. The OT started in February, and the records show Z received this provision through to June.
24. SALT provision began in March. The Council told Mrs Y there was a problem with funding for dyslexia provision as it was unaware a new provider was sourced which had exceeded the agreed annual amount. She was told to continue with the previously agreed provider.
25. In June, there was an annual review at which the OT reported Z needing 30 hours access a year to OT.
26. In July, the school told the Council the OT would not return the following academic year. Mrs Y again complained to the Council about Z not receiving what was in his EHC plan. The Council told her the issue she complained about, assistive technology, was the responsibility of school 2 and should have been raised with the school at the annual review.
27. In August, the Council again confirmed where specific equipment was named in the EHC plan, it was for school 2 to provide. The Council’s role was to make the school aware of its statutory duty. The Council told her it had a few more weeks to decide about the EHC plan following the annual review.
28. In September, Mrs Y complained SALT provision and dyslexia support were not provided. The Council responded under stage 1 of its complaint procedure saying she had been sent an amendment notice earlier that month. An amendment notice (revised plan) is sent to a family for comments when a council decides to amend the EHC plan.
29. This revised plan confirmed the SALT provision was not removed. The Council also explained the SALT provider told it that it could not deliver therapy until the new year due to staff shortages. The Council was looking at alternative providers. It apologised for the disruption and uncertainty caused. I have seen no evidence of the Council looking for alternative SALT providers.
30. In November, she sent another complaint to the Council. This was about changes made to his EHC plan following the annual review and it failing to meet the 12 weeks statutory deadline for completing that process.
31. The Council responded to her complaint about SALT provision. It noted she had been offered a meeting which took place. It also responded to her complaint about the annual review process. It confirmed there were some extra documents needed before it could complete the process. It accepted there was a delay arranging the meeting and the annual review process exceeded the statutory deadlines, for which it apologised.
32. The Council was working to confirm the start date of the OT. A new provider was expected to start shortly.
33. In response to our enquiries in December, the Council said the EHC plan was still being finalised as Mrs Y made multiple amendments. Dyslexia provision was now in place, SALT recently started and was backdated, but it was still searching for an OT. Mrs Y’s suggestion of a private OT needed panel approval.

My findings

34. I found the following on this complaint:
1. It is important to start by noting the Council was not expected to keep a watching brief on either school 1 or 2 making the provision set out in the EHC plan. We expect it to quickly investigate and act on Mrs Y’s concerns raised that provision was not in place.
2. I am satisfied Z did not receive OT provision between April to July 2024 while at school 1. This was because the evidence showed Mrs Y complaining about the lack of this provision in May, the Council accepting it had not been received since December 2023, as well as its later acceptance he had not received it over the summer term. This was fault which I consider caused Mrs Y and Z injustice. For Mrs Y, this involved frustration and stress knowing Z was not receiving it. For Z, it involved missed provision and a lost opportunity to have the problem resolved sooner.
3. When Z started at school 2 in September 2004, it was clear there was a further problem with provision. This was because in October, Mrs Y again complained to the Council. This time she complained he was not receiving SALT, OT, or support from a tutor. The response the Council sent to her accepted there had been delays with Z receiving his allocated provision. This was also fault (service failure) which caused injustice. When considering the injustice caused (frustration, anxiety and missed provision) I also took account of the offer the Council made to put six direct OT sessions in place to remedy this failure.
4. There was an ongoing problem trying to source an OT which meant this provision did not start until February 2025. I am satisfied the OT was not provided for the autumn term and part of the spring term. This was fault (service failure) and caused injustice to Mrs Y and Z. This caused further frustration and stress for Mrs Y. This also meant further missed provision and a lost opportunity to have it resolved sooner for Z.
5. The evidence showed there was a delay with the provision of the tutor, who had by January started working with Z. This meant Z had not received support from the tutor during the autumn term. This service failure caused injustice to Mrs Y and Z. In addition to the frustration, stress, and lost provision, there was also the lost opportunity to have this resolved sooner.
6. There was also missed SALT provision which was not put in place until March 2025. This meant Z was without this provision for almost two terms. While the Council said it was looking for new providers, it provided no evidence of doing so. The Council apologised for the disruption and uncertainty the failure of SALT provision caused. I am satisfied this fault (service failure) caused injustice to both Mrs Y and Z as set out above.
7. The Council accepted it had not given school 2 the correct level of funding needed. This was fault and contributed to the injustice outlined.
8. There was fault in the annual review process in 2025 because it failed to meet the statutory timescale of issuing an amended final plan within 12 weeks of the review meeting. This delay in completing the annual review was fault and caused injustice (frustration and stress).

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Action

35. I considered our guidance on remedies. I took account Z’s needs as set out in his EHC plan, the educational provision made, the loss of OT, SALT, and dyslexia support, along with the time period involved and the catch up sessions provided.
36. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mrs Y a written apology for the injustice caused by its failure to: ensure Z received all the provision set out in his EHC plan; provide the correct level of funding for the school to meet the provision; meet the statutory timescales for the annual review process.
2. Pay £3,500 to Mrs Y for the injustice caused (3.5 terms x £1,000).
3. Pay £480 to Mrs Y for the private handwriting tuition she paid when satisfied she has provided evidence of the invoices and payment of the invoices.
4. Review commissioning arrangements for occupational therapists, speech and language therapists, and those providing dyslexia support to ensure a readily available pool of services to ensure unbroken provision.
5. Review why the delays with the annual review process happened and take action to ensure they cannot be repeated in the future.
6. Review why the correct level of funding was not made to the school initially and take action to ensure this cannot be repeated in the future.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. I found fault on Mrs Y’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman