Summary: Ms X complained about delays by the Council in amending her son, Y’s, Education, Health and Care plan after a review, and delays putting special educational provision in place. The Council was at fault and agreed to increase the remedy payment it previously offered for the provision Y missed and for the distress Y’s family suffered.

The complaint

1. Ms X complained about delays by the Council in amending her son, Y’s, Education, Health and Care (EHC) plan after a review, and delays putting special educational provision in place – including occupational therapy (OT) and providing an augmentative and alternative communication (AAC) device.
2. Ms X said the remedy the Council offered does not reflect the missed provision, and its communication was inadequate.
3. Ms X said when the Council offered a remedy for the missed OT sessions, the new sessions were still not up and running yet, so the amount offered only covered sessions missed so far. There were more missed sessions after the Council’s offer. She said it was not possible to catch up on the missed OT sessions now, as so many were missed. Adding more would be overwhelming for Y.
4. Ms X said the original OT left in December 2024. The Council assured her it would have a new OT in place shortly, but it did not happen, and Y continued to struggle. Then when the new OT started, they went on leave shortly after. Ms X was not notified and there was nothing put in place while the OT was off.
5. Ms X said Y was without the communication device for months, which again was avoidable. Even after the Council agreed funding it took months to provide the money, and there was no communication.

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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’. 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)
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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How I considered this complaint

9. As part of the investigation, I considered the complaint and the information Ms X provided.
10. I made written enquiries of the Council and considered its response along with relevant law and guidance.
11. Ms X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

12. 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. 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. 
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 in section F 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. 

15. 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 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 paragraph 9.176) 
16. 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.

What happened

17. I have summarised below some key events leading to Ms X’s complaint. This is not intended to be a detailed account of what took place.
18. Y has an EHC plan. The annual review meeting for Y’s EHC plan took place on 13 November 2024. The Council considered the previous target for Y was no longer appropriate, and he needed new outcomes based on the Speech and Language Therapist (SALT) report.
19. Y’s parents asked about funding for a communication device as priority. The Council said the timescale for receiving a device after the review was four to six weeks. Y’s parents also asked for Y’s provision to include joint working with OT and the SALT. The Council noted this would have cost implications.
20. The Council confirmed its decision to amend Y’s EHC plan on 29 November. It then issued a proposed amended EHC plan on 6 December.
21. The Council spoke with Y’s OT on 19 December. They reported that Y’s parents wanted Y’s OT sessions in school, not at the clinic. The OT said they would arrange some joint sessions with Y’s SALT and would give the Council their new OT report in the New Year.
22. The Council received Y updated annual review report from the OT provider on 10 January 2025. The provider also told the Council Y’s OT was currently off work and they did not know when they would return.
23. The Council issued Y’s final amended EHC plan on 27 February 2025.
24. Y’s new OT contacted the Council on 19 March 2025. They said there were five OT sessions left. Three in school were needed for Y to get to know them, then two joint sessions in clinic with the SALT.
25. Ms X complained the Council failed to secure all provision from Y’s EHC plan following his annual review in November 2024. She was concerned Y was not receiving the right level of one-to-one provision in school, had not been given funding for a tablet computer and communication software, and an AAC device had not been provided despite being agreed at the annual review. Ms X said the Council failed to issue Y’s amended EHC plan within statutory timescales and he had not received OT provision since January 2025.
26. Ms X asked for an update on the AAC device on 7 April.
27. The Council approved a personal budget payment for Y on 8 April to buy a tablet computer and communication software.
28. The Council sent its stage one complaint response on 9 April 2025. It recognised it did not issue Y’s final amended EHC plan within the statutory timescales. It should have been finalised by 8 January 2025, but it did not do so until 27 February 2025.
29. The Council said the provider assigned Y a new OT and, although there was a delay, this was outside the Council’s control. It said the provider will catch up on any missed provision.
30. The Council also said there was a delay making funds available to buy a tablet computer and software to enable the AAC device.
31. The Council apologised for its delays and offered £250 for Ms X’s time and trouble.
32. Ms X was dissatisfied with the Council’s response. She said Y had not received OT provision since January 2025 and missed 12 sessions. Y did not have an assigned OT or start date. She also said Y did not have the AAC device he needed and cannot access education due to this.
33. The new OT emailed Ms X on 25 April suggesting they get started with the five missed sessions when the previous OT was off.
34. Ms X asked the OT to focus on getting the weekly sessions up and running as soon as possible. She said Y had missed 12 sessions and it would not be suitable to cram in these sessions in a short space of time as it would be overwhelming.
35. Y’s father emailed the Council on 1 May confirming they bought a tablet computer and software, but the cost of insurance exceeded what the Council gave. He said the Council should pay for the insurance too.
36. Ms X emailed the Council on 8 May. She said Y could not take the communication device into school without insurance. School said the school’s insurance did not cover this and it would need to come from the Council.
37. The Council sent its stage two complaint response on 16 May 2025. It apologised Y’s OT provision had not restarted. It asked Ms X to confirm if the new OT had now started, and would follow up with the provider if not.
38. The Council said it believed the provider was going to make up for the missed OT sessions, but the delay commissioning Y’s OT provision now meant he did not receive all provision in his plan from January 2025. It offered £400 for this, £100 for each month of missed provision. It also offered £250 for time, trouble and distress bringing the complaint.
39. The Council said it agreed funding for a tablet computer and software to enable the AAC device and made payment on 17 April.
40. The Council made an added personal budget payment on 15 May for insurance, and a software increase for Y’s AAC device.
41. Ms X emailed the new OT on 21 May confirming she was told they would be seeing Y in school for his first session on 23 May.
42. Y started at a new school in November 2025.

My investigation

43. Ms X told me Y’s original OT left in December 2024 and Y’s sessions did not re-start until 23 May 2025.
44. Ms X said this had a huge impact on Y. The previous OT put some adjustments in place because he was struggling in school. When the OT left there was no further input, which was imperative for Y’s continuity. The OT had suggested measures to reduce Y’s anxiety and self-harming. These were weekly sessions which were needed.
45. Y’s new OT went on annual leave shortly after starting, and the provider did not tell Ms X or put anything in place for Y while the OT was away. This exacerbated the situation and made it impossible for Y to catch up. The Council offered for Y to come in during the holidays, but Ms X was unavailable, and Y needs activities to be in a school setting.
46. Ms X also told me Y’s joint OT and SALT sessions are in his EHC plan. This is meant to be annual provision, but Y did not receive it.
47. Ms X said it is not possible to catch up on the missed OT sessions now, as so many have been missed. Adding more would be overwhelming for Y.
48. Ms X said the Council’s delay issuing the amended final EHC plan delayed it consulting new schools. This in turn delayed Y starting at his new school.
49. The Council told me it commissioned Y’s provision through a third-party provider. Y’s original OT went on sick leave in December 2024. This led to a delay in the OT’s annual review report being provided to the Council. It was not sent until 10 January 2025. There is then a gap in the Council’s records until 19 March 2025 when the provider allocated a new OT who was to arrange the outstanding sessions.
50. The Council said it cannot tell the provider to appoint a new OT. However, it should have contacted them to confirm a new OT was available or considered finding a new provider if there was going to be a significant delay.
51. The Council said it discussed funding for the AAC device at the November 2024 annual review. There was a delay agreeing a personal budget payment for this, which was made in April 2025. The Council said it apologised for this delay when it responded to Ms X’s complaint.

Analysis

52. The Council held Y’s annual review meeting in November 2024. It should have finalised his amended EHC plan by 8 January 2025. It did not do so until 27 February 2025. That was a 7-week delay, which is fault.
53. The Council made only minor amendments to Y’s EHC plan which did not significantly affect his provision at the time. I therefore did not find Y suffered significant injustice in this regard as a result of the delay. However, the delay did cause Y’s family avoidable frustration, as well as uncertainty about whether Y could have started at his new school sooner but for the Council’s delay.
54. Y’s OT was absent from the end of December 2024. The agency assigned Y a new OT in March 2025, but Y’s sessions did not re-start until 23 May 2025.
55. While it was the fault of the provider that Y had no OT sessions and Ms X was not updated, the Council retains overall responsibility for Y’s SEN provision. The Council recognised it failed to keep proper oversight of Y’s OT provision in this case. That was fault.
56. The Council offered Ms X £400 for four months of missed provision. However, when Y’s OT sessions re-started, he had missed almost five months. I therefore recommended the Council should increase its remedy offer to £500.
57. Y’s family could buy the communication device at the start of May 2025. At the annual review meeting, the Council said Y would receive the device by about early January 2025. That is a delay of about four months, which is fault.
58. Y is non-verbal and the communication device is a recognised need in his EHC plan. Being without this support impacted Y’s participation in school and his ability to meet the outcomes detailed in his EHC plan. This caused further avoidable distress at a time the family was already distressed at Y’s missing OT provision.
59. The Council also offered £250 for time and trouble and distress. Given the added distress caused by the delay providing Y’s communication device, I recommended the Council increase its offer to £400.

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Agreed Action

60. Within four weeks of my final decision, the Council agreed to:
• Repeat its apology for the delay issuing Y’s EHC plan and funding a communication device, and for OT sessions Y missed. Its apology should recognise the distress this caused Y’s family.
• Pay Ms X £500 to recognise Y’s missed OT sessions.
• Pay Ms X £400 for the avoidable distress, and time and trouble suffered because of the Council’s fault.
61. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

62. I found the Council at fault for delay issuing Y’s amended EHC plan and funding a communication device. It was also at fault for Y missing about five months of OT provision. The Council agreed to increase the remedy payment it previously offered for the provision Y missed and for the distress Y’s family suffered.

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Investigator's decision on behalf of the Ombudsman