Summary: The Council was at fault for delay in arranging the special educational provision in Mr Z’s Education, Health and Care (EHC) Plan. It also failed to carry out two annual reviews of Mr Z’s EHC Plans and delayed issuing an amended Plan. This meant Mr Z missed out on provision he should have had and his father, Mr X, experienced avoidable frustration. To remedy their injustice, the Council will apologise and make a symbolic payment. It will also issue a clarification to staff to prevent similar fault in future.

The complaint

1. Mr X complained the Council delayed issuing his son, Mr X’s, Education, Health and Care (EHC) Plan following a SEND Tribunal appeal, and that it delayed securing the special educational provision in Mr Z’s EHC Plan. Mr X said this caused him and Mr Z distress and anxiety.

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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. 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.
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).

What I have and have not investigated

6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. Mr X complained about matters dating from September 2024 and received the Council’s final response to his complaint in May 2025. We would not normally investigate complaints about events that occurred after May 2025 because the Council has not had a chance to respond to those matters. However, I have chosen to investigate from September 2024 up to July 2025 to cover the entire school year.

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How I considered this complaint

8. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making my final decision.

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What I found

Relevant law and guidance

10. 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. These include section F, the special educational provision needed by the child or the young person. 
11. 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)  
12. 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) 
13. There is a right of appeal to the SEND Tribunal about the special educational needs in the EHC Plan, as well as other decisions made by the responsible council. If, following an appeal, the Tribunal orders the council to issue an amended Plan, it must do so within five weeks. The council should have any new special educational provision ordered by the Tribunal in place by the end of that five-week period.
14. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves. To receive direct payments, the person normally has to sign an agreement with the council.

EHC Plan and annual reviews

EHC Plan

15. Mr Z is Mr X’s adult son. The Council completed an annual review of Mr Z’s EHC Plan in January 2023 and issued him an amended Plan in summer 2023.
16. Mr X was unhappy with the content of that EHC Plan, so he appealed to the SEND Tribunal. The Tribunal issued its order in mid-September 2024. It said section F of Mr Z’s EHC Plan needed to include the following provision.
• Tuition for 15 hours per week;
• An annual gym membership;
• A laptop with headphones;
• At least one hour per week of speech and language therapy (SALT);
• At least 30 minutes per week for the speech and language therapist to work with Mr Z’s tutors to embed learning from the SALT session into his tuition;
• 12 sessions of occupational therapy (OT) per year, of at least an hour per session;
• For the occupational therapist to monitor the suitability of Mr Z’s sensory diet; and
• For the speech and language therapist and occupational therapist to contribute to Mr Z’s annual reviews.
17. To comply with the Tribunal’s order, the Council should have issued Mr Z’s EHC Plan by mid-October. The Council took 13 weeks to issue Mr Z’s amended EHC Plan. This was eight weeks too long and was fault. It caused Mr X frustration.

Annual reviews

18. The Council has not carried out an annual review of Mr Z’s EHC Plan since 2023.
19. The Council says it did not carry out a formal review of Mr Z’s EHC Plan in 2024 because Mr X’s appeal was ongoing, so it reviewed the Plan as part of that process. It is not clear why the Council has not completed an annual review in 2025.
20. The Council is required by law to review a child or young person’s EHC Plan at least every twelve months. It cannot pause that process because an appeal is ongoing, nor can it use the appeal as an annual review. The Council failed to review Mr Z’s EHC Plan in 2024 and 2025, which was fault. This caused Mr X further frustration and meant he had no way to seek changes to the provision in Mr Z’s Plan.

Special educational provision

21. Following the Tribunal, the Council should have arranged for Mr Z to receive the special educational provision in his new EHC Plan by mid-October 2024.

Equipment

22. The Council issued Mr Z his laptop and headphones and it was ready to use in mid-December. This was a two-month delay, which was fault.

Tuition

23. Mr Z started his tuition in early January 2025. The Council delayed arranging Mr Z’s tuition by two and a half months. This was fault.

Speech and language therapy

24. The Council contacted a SALT provider in January 2025, to ask about availability to deliver the provision in Mr Z’s EHC Plan.
25. The Council arranged for Mr Z to have his first SALT session in mid-March 2025. However, Mr Z did not attend.
26. Following a period when the speech and language therapist was on leave, the Council arranged for Mr Z to have a further appointment in early April 2025. Mr Z began receiving regular SALT in late May.
27. The Council was at fault for delay arranging Mr Z’s SALT. The regular sessions did not begin until late-May, well after the date they should have started in mid-October. Mr Z’s failure to attend the March session and the therapist’s annual leave contributed to the delay, but most of the delay was caused by the Council’s fault.

Occupational therapy

28. The Council began looking for an occupational therapist in late January 2025. It asked more providers if they had availability in early February and late April, May and July. Mr Z had an initial appointment with an OT provider in early December 2025. The Council says further sessions will be arranged after that.
29. The Council says it is being affected by a nationwide shortage of occupational therapists. The Ombudsman is aware demand on occupational therapists is high and I accept the shortage contributed to its failure to find a provider for Mr Z. However, it was not the only reason Mr Z was without an OT for the entire period I have investigated; the 2024/2025 school year. The Council delayed consulting with OT providers until late January 2025. It then failed to contact other providers often enough to see if they had availability. This was fault. It is positive the Council has now identified a provider who will be able to support Mr Z.
30. To address the occupational therapist shortage, the Council is implementing a new approach towards therapies for children. The approach will allow education settings to commission therapy directly. The Council will coordinate the therapies, which will charge a fixed rate. The Council says it will also increase the number of therapy suppliers it uses. The Council is taking appropriate action to resolve the shortage so I have not made a further recommendation.

Leisure centre membership

31. At the end of January 2025, the Council told Mr X it would contact him the following week to arrange a visit at home. This was so he could complete the direct payment (DP) agreement and receive the payment for the leisure centre membership.
32. Mr X was not keen on the Council coming to his home, so he suggested he and Mr Z could come to its offices. Shortly after, in early February, the Council told Mr X it would send him the agreement paperwork to sign and return.
33. At the end of the month, once the Council had sent Mr X the paperwork, he asked it why Mr Z could not sign the agreement, given he was over 18 years old. In mid-May the Council asked Mr X if he would prefer it send Mr Z the DP agreement. Mr X agreed.
34. The Council then contacted Mr X twice about signing the direct payment forms. Mr X asked why it had contacted him, when he wanted Mr Z to sign the agreement.
35. In early June 2024, the Council sent Mr Z the direct payment agreement paperwork.
36. The Council contacted Mr Z several more times in June and July to ask him to return the completed agreement. As of December 2025, Mr Z has not signed the agreement.
37. The Council was at fault for delay arranging Mr Z’s direct payment for the leisure centre membership until June 2025, when it sent Mr Z the agreement to sign. Mr X’s concerns about officers coming to his home and the time it took him to tell the Council to send the agreement to Mr Z contributed in a small way towards the delay, but the majority of delay was the fault of the Council.
38. I cannot say, even on balance of probabilities, that if the Council had not been at fault, Mr Z would have had the benefit of the leisure centre membership. This is because when Mr Z did have the agreement to sign in June 2024, he did not do so.
39. The Council was not at fault for not arranging the direct payment since June 2025, because Mr Z has not signed the agreement. The Council told me it would continue to offer the direct payment and if Mr Z preferred to come into its office to sign the agreement, it would be happy for him to do that. It is open to Mr Z to accept the Council’s offer, or to return the signed paperwork himself.

Special educational provision: injustice

40. The faults set out in paragraphs 22-37 caused Mr X frustration. The faults from paragraphs 22-29 meant Mr Z missed out on special educational provision he should have had. I have recommended actions to remedy this injustice to Mr Z and Mr X below.
41. Following a recent Ombudsman decision, the Council agreed to decide what it needs to do, to:
• Ensure its staff are clear about the Council’s duty to secure the special educational provision in a child or young person’s EHC Plan; and
• Check the special educational provision is in place when it issues a new or substantially different EHC Plan, and to properly investigate complaints or concerns that provision is not in place at any time.
42. The Council carried out those actions by June 2025, shortly before the end of the period I have investigated. There is no need for a further recommendation as the Council’s practice should have improved as a result of our recent decision.

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Action

43. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mr X for the frustration he felt because of the faults set out in this decision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Apologise to Mr Z for the impact the lost special educational provision had on him.
3. Pay Mr X £3200. £2950 is to recognise the impact of the lost provision on Mr Z. The remaining £250 is to recognise Mr X’s frustration caused by the delay issuing Mr Z’s EHCP and Council’s failure to carry out annual reviews when it should have.
4. Share this decision with staff who carry out EHC Plan annual reviews. The Council should highlight that an appeal to the SEND Tribunal does not relieve the Council of its duties to carry out an annual review.
44. The Council will provide us with evidence it has complied with the above actions.

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Decision

45. I find fault causing injustice. The Council has agreed actions to remedy that injustice and prevent fault in future.

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Investigator's decision on behalf of the Ombudsman