Summary: Miss X complained that the Council had failed to provide the required Occupational Therapy for her son as set out in his Education, Health and Care Plan, and had delayed in issuing an amended Education, Health and Care Plan after an annual review. The Council accepted fault and that this had meant Miss X’s son missed some required provision. The Council offered a remedy which Miss X thought was inadequate. We have considered Miss X’s comments, but our view is that the Council’s offer is proportionate and sufficient to remedy the injustice.

The complaint

1. The complainant, Miss X, complained to the Council about its failure to provide, over a twenty-month period (July 2023 to March 2025), her son’s (Y’s) required Occupational Therapy (OT) set out in his Education, Health and Care (EHC) Plan.
2. Miss X also complained about the Council’s seven-month delay (May 2024 to March 2025) in issuing an amended EHC Plan after the annual review of May 2024.
3. The Council accepted fault and offered a remedy. But Miss X does not consider this is sufficient. She says that Y has missed seventy sessions of direct OT. This has meant that his anxiety, regulation difficulties, handwriting skills and gross motor skills has regressed.
4. The delay in issuing the amended EHC Plan after the annual review has also meant that her right of appeal to the Special Educational Needs and Disability (SEND) Tribunal has been delayed.
5. The Council issued an amended EHC Plan in March 2025. Miss X has now appealed to the SEND Tribunal. We have decided that we cannot consider any complaint about the content of this amended EHC Plan (our reference 25 004 942), including her concern about the removal of some OT provision. This is now the subject of the appeal.

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The Ombudsman’s role and powers

6. 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’.
7. 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).
8. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
9. We will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
10. 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)
11. 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).
12. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Services and Skills (Ofsted).

What I have and have not investigated

13. Miss X complained to us in May 2025, more than 12 months since she realised something had gone wrong in relation to the Council’s duty to provide the required provision. I have decided to exercise discretion to look at the complaint from July 2023 which is the date the Council investigated the complaint from.
14. Accordingly, I have investigated events from July 2023 to March 2025, when the Council issued an amended final EHC Plan. At this point, Miss X had a right of appeal to SEND Tribunal if she was dissatisfied with the content or provision of the Plan.

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How I considered this complaint

15. I considered evidence provided by Miss X and by the Council as well as relevant law, policy and guidance. I issued a draft decision statement to the Council and to Miss X. Miss X raised some concerns about this draft statement, so I made some enquiries of the Council and issued an amended draft decision.
16. Miss X has commented further. I have considered her additional views when reaching my final decision.
17. It remains that, because the Council has accepted fault and provided a detailed written account of events and its responsibilities to Y, I have primarily considered the resulting injustice and whether the Council’s remedy offer was appropriate.

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What I found

18. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
19. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section J: Details of any personal budget made. 

20. 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). A council can provide an Education Otherwise Than At School (EOTAS) package for pupils unable to attend an educational placement. Such a package can be supported financially by direct payments where the parent or young person is involved in securing their provision.
21. 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 take place. The process is only complete when the council issues a decision about the review.

22. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. If the council decides to amend the EHC plan, this should be completed within twelve weeks from the date of the review.

Key facts

23. Y has had an EOTAS package since September 2023. Y has a diagnosis of autism with a profile of Pathological Demand Avoidance (PDA), attention deficit hyperactivity disorder (ADHD), anxiety and sensory difficulties.
24. Among other things, Y’s EHC Plan stated he should receive weekly 1:1 OT sessions, weekly visits to Y’s home, sensory and dietary support, and help with handwriting and fine motor skills.
25. Miss X complained to the Council in March 2025 that Y was not receiving the required provision, in particular the OT provision and the Council was unreasonably delaying in issuing an amended EHC Plan after the annual review in May 2024.
26. Miss X requested:

• immediate implementation of the full OT and related provisions as outlined in Section F of Y’s EHC Plan:
• a clear action plan detailing how the Council would ensure the missed provision is delivered and how Y would be supported to catch up;
• compensation for the missed provision for 20 months;
• a symbolic payment for the time it had taken her to complain and for the need to complain; and
• an explanation as to why she was not informed sooner that the provision would not be provided.

27. In March 2025, the Council issued the amended EHC Plan. This is now the subject of a SEND appeal.

The Council’s stage two investigation

28. In May 2025, the Council sent its detailed stage two response to Miss X. The Council stated that Y’s January 2024 EHC Plan specified forty hours per year of OT, delivered through weekly OT visits.
29. Miss X explained that the stage one response had not provided any concrete plan for delivering the missed provision. She considered the recent offer of only four sessions per year (set out in the amended EHC Plan of March 2025) did not come close to fulfilling what had been lost, nor did it address the impact on Y’s development and well-being by the lost OT provision. (But this is a matter for the forthcoming SEND appeal).
30. The Council upheld the following complaints: the failure to make the OT provision and the delay in the annual review process. It apologised.
31. The Council then considered what would be an appropriate remedy, taking into account Miss X’s requested outcomes.
32. At stage two, the Council told Miss X that agreement had been reached to commission twenty-four OT sessions for Y and a plan had now been shared with Miss X. That worked out at one session a week up to December 2025.

Remedy offered by the Council

33. The Council offered:

• £50 in recognition of the time and trouble taken in pursuing this matter with the Council;
• £850 in recognition of the delay in arranging Y’s OT sessions (twenty months of no OT £85 a session – 10 sessions);
• £700 to acknowledge the frustration and uncertainty caused by the delays in the annual review process (Y’s Final EHC Plan was issued seven months beyond the 12 week statutory timescale); and
• £510 symbolic financial remedy offered for Y in recognition of missed OT to include a further six sessions to that already agreed.

34. So, in total, the Council offered, £1,360 for loss of OT, £700 for the delays in the annual review process and £50 for Miss X’s time and trouble in pursuing her complaint.

Miss X’s complaint to the Ombudsman

35. Miss X said that she did not consider the Council’s remedy was sufficient. She asked us to recommend that all the missed OT provision was fully compensated, including the loss of the indirect OT (liaison, planning and review requirements), and to increase the financial redress. Miss X calculated that Y had missed seventy direct OT sessions and the Council had only compensated for forty sessions.
36. Miss X also considered that the Council had failed to recognise the adverse impact on Y and on herself by the Council’s faults. And she raised a concern about how the Council commissions provision for pupils receiving an EOTAS package.
37. In response to my first draft decision, Miss X considered that I had not recognised that there had been no progress in meeting Y’s OT needs, that the delay in issuing a final EHC Plan not only delayed her right of appeal but also prevented the commissioning of updated therapies and I had not recognised the impact on her, as a disabled carer, by the Council’s faults.
38. In response I sought some further information from the Council. It told me that it had now commissioned twenty-four direct OT sessions and this would continue to April 2026. This was arranged to help Y ‘catch up’. Miss X says that this was not the case. The additional OT sessions were because of a new OT assessment prepared for the forthcoming SEND appeal.
39. The Council says that it was agreed that Y would receive an EOTAS package in September 2023 and it started then to look for an OT to provide therapy at home. The Council has provided evidence that it approached four OT providers. The Council says that finding an OT provider who could arrange OT at home proved quite difficult. The Council kept Miss X informed of how it was resolving this. The Council also says that there were times when Y did not engage in the therapy provided.
40. The Council accepted that the indirect OT had also not been provided.

Miss X’s response to the amended draft decision

41. Miss X has remained dissatisfied with the remedy offered. She reiterated that Y had missed OT sessions which had not been remedied and Y had missed indirect OT. Also, there has been a failure to fully recognise the harm caused to Y and to herself.
42. Miss X says that the Council did not look for OT providers (as claimed).

Findings

43. We encourage councils to deal with complaints and provide remedies in line with our guidance. The Council has carried out a detailed and clear investigation. That is to the Council’s credit. I endorse the Council’s findings, and I find fault causing injustice.
44. We will not generally reinvestigate complaints if we consider the Council has carried out a detailed investigation and where it has made an appropriate remedy. I consider the Council has investigated the two main complaints made by Miss X to it (failure to provide OT and delay in issuing an amended EHC Plan) and that it is not appropriate for us to reinvestigate the substantive matters.
45. Miss X’s complaint to us is primarily that all the faults have not been fully recognised and the remedy offered by the Council is not proportionate to the harm caused to Y and to her, as a disabled carer.
46. Our guidance on remedies makes it clear that we provide remedies for injustice, not compensation, punishment or fines. We generally do not calculate financial remedies on what it would have cost a council to provide a service
47. Our guidance on remedies says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career;
• lost or delayed right of appeal.

48. Where there is a loss of OT, the level of financial remedy will be lower than for the loss of educational provision.
49. Miss X is right, and the Council had a duty to make the provision set out in Y’s EHC Plan and to issue an amended EHC Plan within the required time. I accept that the Council failed here as does the Council. But our guidance on remedies says we try to put people back in the position they would have been but for the fault. But, where this not possible, we recommend a payment which is often a modest amount whose value is largely symbolic.
50. The Council has offered in total £1,360 for the loss of OT and it has also arranged catch up sessions and these will continue until the Tribunal hearing. These sessions recognise that Y has been disadvantaged by not having the OT as required. They are probably one of the best ways to mitigate the previous loss of OT sessions.
51. The fact that these sessions may have been provided because of a pending SEND appeal is immaterial because, regardless, they are still a benefit to Y which may mitigate the earlier loss.
52. The Council has also recognised that the indirect OT was not provided.
53. In respect of the £50 for Miss X’s time and trouble in pursuing her complaint, our symbolic payments for time and trouble in pursuing a complaint are normally recommended when there has been a delay in responding to a complaint. We do not recommend time and trouble payments just for having to complain through a council’s complaint process or having to complain to us.
54. Miss X considers the Council has not recognised her particular difficulties. But the Council has communicated regularly with her in recognition of this. So, I do not consider it is necessary to recommend an additional payment over and above what the Council has offered.
55. The Council has recognised the delay in issuing a final EHC Plan and that this frustrated Miss X’s appeal rights and has delayed in Miss X receiving a decision from the Tribunal about Y’s needs and how to meet these. The Council has offered £700. It is very unlikely we would recommend more.
56. Miss X also raised a concern about the Council’s commissioning of provision for pupils on an EOTAS package. Miss X’s complaint does highlight the difficulties for the Council in commissioning providers where there is an EOTAS package. The Council has provided evidence that it made approaches to four OT providers and the problem for the Council in commissioning providers for an EOTAS packages is more likely to be a result of factors outside the Council’s control. In any event, the Council is aware of this problem which it needs to address.

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Action

57. I recognise the impact on Y by the lost OT and the impact on Miss X by this and by the Council’s delays. But I consider the Council has offered a proportionate remedy, which is broadly in line with our guidance on remedies.

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Decision

58. I find fault causing injustice. I am satisfied that the Council has provided an appropriate remedy. Therefore, I have completed my investigation and am closing the complaint.

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Investigator's decision on behalf of the Ombudsman