Summary: Miss X complained the Council failed to secure special educational provision in her son Y’s Education, Health and Care Plan, took too long to review the plan, and had poor communication and complaint responses. We find the Council at fault because it failed to secure some of the provision, missed statutory deadlines and for poor communication. The fault meant Y missed some education and caused distress, uncertainty and frustration. The Council has agreed to make a symbolic payment and apologise to remedy the injustice.

The complaint

1. Miss X complains about how the Council handled her son Y’s special educational needs. In particular she complains the Council failed to:
1. Provide Y the speech and language therapy (SALT) and occupational therapy (OT) recorded in his Education, Health and Care (EHC) Plan.
2. Complete the annual review of Y’s EHC Plan within the statutory timescales.
3. Adequately respond to her contact and complaints.
2. Miss X said the failings negatively affected Y’s development, meant she had to secure private occupational therapy to support him, and caused her stress and anxiety.

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The Ombudsman’s role and powers

3. 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)
4. 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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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)

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What I have and have not investigated

9. I have investigated from July 2024 when Y’s school held a review meeting for his EHC Plan. I have investigated until April 2025 when the Council sent Miss X an amended final EHC Plan and explained her rights of appeal to the Tribunal.
10. I have not investigated any matters before June 2024. This is because it was more than 12 months before Miss X complained to us and I have decided there is no good reason Miss X did not complain to us sooner about earlier matters.
11. I have not investigated after April 2025 because Miss X has appealed to the Tribunal and I have decided investigating her complaint after that date would overlap with it.

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How I considered this complaint

12. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
13. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
14. 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 found

Law and Guidance

EHC Plans and special educational provision

15. 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. 
16. The EHC Plan is set out in sections which include Section F: The special educational provision needed by the child or the young person. 
17. 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)  

Reviewing EHC Plans

18. 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) 
19. 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.

Appeal rights

20. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;

21. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
22. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
23. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example delays in the process before an appeal right started;

What happened

24. This is a summary of key events. It is not a detailed chronology of everything that happened.
25. Y has special educational needs. He attends a specialist school. He had an EHC Plan that was issued in 2023.
26. On 10 July 2024 Y’s school held an annual review meeting for his EHC Plan. Miss X attended. The Council did not attend. Miss X’s written contribution to the review included specific concerns that Y was not receiving the SALT and OT provision specified in his EHC Plan. She said the school did not have an Occupational Therapist at that point and there was a backlog and delays with the healthcare organisation that delivered SALT.
27. The school sent the Council the review meeting documents, including Miss X’s concerns, nine days later.
28. Miss X said she contacted the Council between August and November and chased updates about the review several times, but received no response.
29. The school said it had an Occupational Therapist from November.
30. Miss X complained to the Council in December. It was a stage one complaint. She complained the Council had not secured the full OT and SALT provision in section F of Y’s EHC Plan and gave specific examples. She also complained the Council had not met the statutory timescales for reviewing Y’s EHC Plan.
31. The Council responded to Miss X’s stage one complaint in early January 2025. It said there had been significant gaps in Y’s provision, especially OT. It also said it had not met the statutory deadlines when reviewing Y’s EHC Plan and accepted poor communication. It said it would engage with Y’s school regarding the provision and provide a definitive timescale for sending an amended draft EHC Plan. It apologised.
32. Miss X escalated her complaint to stage two later in January.
33. On 17 February the Council notified Miss X it intended to amend Y’s EHC Plan. It sent a draft amended EHC Plan to her.
34. The Council responded to Miss X’s stage two complaint in March. It apologised for the delayed response. It agreed it had not secured some of Y’s provision between September 2023 and January 2025. It offered Miss X £1,800 to remedy the loss of provision.
35. At the beginning of April the Council told Miss X it had decided to withdraw the offer of £1,800. It said there was evidence Y’s school had provided the OT and the healthcare organisation had provided the SALT.
36. The Council completed Y’s amended final EHC Plan and issued it to Miss X on 23 April. It sent a cover letter explaining her right of appeal to the Tribunal.
37. Miss X complained to us in June 2025. She also appealed to the Tribunal because she disagreed with some of the Council’s amendments to the EHC Plan including changes to the special educational provision in Section F.

Analysis

38. I address each part of Miss X’s complaint in turn below.

a) Complaint the Council failed to provide speech and language therapy and occupational therapy recorded in Y’s EHC Plan.

39. The Council initially accepted there were gaps in Y’s special educational provision and offered compensation. It later said Y’s school had provided evidence the OT had been delivered. It also said that Y was registered with the healthcare organisation the delivered SALT. The Council decided to withdraw its offer of compensation because it considered it had delivered Y’s EHC Plan adequately
40. I have considered the SALT and OT provision based on an ordinary interpretation of how it is worded in Section F of Y’s EHC Plan. I have not made findings on some of the provision because the wording is vague. Where wording is vague it is not for us to speculate about what may have been intended, the remedy is to appeal to the Tribunal to re-write the Plan and properly specify and quantify provision.
41. 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. 

42. The records show Miss X raised clear written concerns about failures to secure all the SALT and OT via the written advice she submitted to the review meeting on 10 July 2024. Y’s school sent the concerns to the Council shortly after.
43. Regarding SALT, Miss X wrote Y had not received: “2 reviews a year as outlined, due to backlog (at the healthcare organisation). No additional intervention sessions as outlined”.
44. Section F of Y’s EHC Plan contained provision regarding SALT, in summary:

• Access to the specialist pathway for SALT to include two face to face assessments a year with a Speech and Language Therapist. Either one-to-one or class-based, and
• Access to additional intervention SALT sessions which may be used to support their communication needs, support parents and complete observations.

45. The Council did not check the provision at least annually or quickly investigate and act on Miss X’s concerns about SALT and therefore did not meet our expectations of appropriate oversight. However, I have decided there is not enough evidence to find, even on the balance of probabilities, that the Council failed to secure the SALT provision for the period I have investigated.
46. This is because there is evidence Y was registered with the healthcare organisation and I have decided I cannot not say whether two SALT assessments happened outside the period of my investigation but within a year. It is also because I have decided the wording of the provision about additional sessions is too vague to make a finding in this case.
47. Regarding OT, Miss X wrote Y had not received: “any OT support since August (2023)”, “As a result of no formal OT reviews, we have had to employ a Private OT”. The review paperwork shows an OT report was involved in the review. Miss X told the Council the school did not have an Occupational Therapist for a significant period of 2024.
48. Section F of Y’s EHC Plan contained provision regarding OT, in summary:

• The Occupational Therapist will provide a block of four one-hour sessions to devise a sensory circuit and sensory diet programme; a one-hour session to devise a programme for toileting; and a one-hour session to devise a fine motor skills programme.
• Y to complete sensory circuits devised by the Occupational Therapist three times a day. This will be completed by a member of staff adequately trained by the Occupational Therapist in Y’s specific profile of sensory need.
• Y requires termly occupational therapy reviews and plan/goal updates to support his developmental trajectory.
• An Occupational Therapist should be involved in his annual EHCP reviews and planning.

49. The Council did not check the provision at least annually or quickly investigate and act on Miss X’s concerns about OT and therefore did not meet our expectations of appropriate oversight.
50. I note Y’s school had an Occupational Therapist from November 2024. It told the Council in 2025 that it considered it had provided Y provision over and above that which was set out in his plan.
51. However, I have seen no evidence an Occupational Therapist was involved in the relevant programmes, sensory circuit, termly reviews and involvement in the EHC Plan review in 2024. In my view these were clear and measurable elements of Section F. I have seen no evidence an Occupational Therapist devised any programmes for Y until March 2025, when there is a record of an assessment regarding one of the programmes.
52. I find the evidence shows, on balance, the Council did not secure the OT provision summarised above between July 2024 and March 2025. This was fault which caused Y injustice because he did not receive special educational provision the Council had a legal duty to secure for him.
53. Where fault has resulted in a loss of OT, we will usually recommend a remedy payment to acknowledge the harm caused by that loss. I have referred to our Guidance on Remedies and decided to recommend the Council apologise and make a remedy payment of £300 per term for the Autumn and Spring terms in the period I investigated. This is a total of £600 for the loss of OT.
54. I have decided not to recommend the Council reimburses Miss X the costs of the private OT report. This is because I have decided it is linked to Miss X’s appeal and I cannot consider reimbursement of privately-obtained advice where it is not separable from the matters before the Tribunal.

b) Complaint the Council failed to complete the annual review of Y’s EHC Plan within the statutory timescales.

55. To meet the statutory timescales for amending Y’s EHC Plan following the review on 10 July 2024, the Council should have notified Miss X of its intention to amend and provided her a draft amended EHC Plan within four weeks. It should have then finalised the process by issuing an amended final EHC Plan no later than 12 weeks from the review meeting.
56. In this case, the Council took nearly 28 weeks to provide a draft amended EHC Plan, and 41 weeks to finalise the process by providing an amended final EHC Plan. This meant it missed the statutory timescale by a significant margin. This was fault.
57. The fault delayed Miss X a right to appeal to the Tribunal, a right she subsequently exercised. The delay caused significant injustice in the form of distress, uncertainty and frustration. This injustice is separate from that caused by the missed special educational provision. I recommend the Council apologise and make a further payment of £250 to remedy the injustice.

c) Complaint the Council failed to adequately respond to contact and complaints.

58. The Council acknowledged delays and gaps in communication in its stage one complaint response, and a delay in responding at stage two. It apologised for the lack of communication and subsequent delay.
59. I agree the Council was at fault. It caused distress to Miss X. I would ordinarily have recommended the Council apologise for the distress caused. However, the Council has already made a satisfactory apology which meets the standards we would expect.
60. Miss X also complained about how the Council communicated its decision to withdraw its initial offer of compensation. I have considered the letter and a subsequent email it sent to Miss X explaining its decision. I acknowledge Miss X was unhappy with the decision. However I find no fault with the way the Council communicated the decision to Miss X because it provided a suitable level of information that explained its reasons.
61. I have considered whether to recommend any service improvements to prevent future injustice to others. I have decided not to because we have recently recommended relevant service improvements following a similar complaint.

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Action

62. Within four weeks of the final decision the Council should:
1. Apologise to Miss X. We publish guidance on remedies which 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.
2. Make a symbolic payment of £850 to Miss X to acknowledge the injustice caused by the missed educational provision and delays in the EHC review process. I recommend Miss X use the element of the payment regarding missed provision for Y’s educational benefit.
63. The Council should provide us with evidence it has complied with the above actions.

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Decision

64. I find fault causing injustice for parts a) and b) of Miss X’s complaint for the reasons in the analysis section. I uphold her complaint. The Council has agreed actions to remedy the injustice and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman