Summary: Mrs X complained about the Council’s failure to deliver Occupational Therapy included in her son’s (Y) Education Health and Care Plan. She also said the Council had failed to arrange extra education for Y when he was on a part-time timetable and had failed to reassess Y’s needs. We found fault with the Council for not securing delivery of Occupational Therapy for Y and for the delay when reassessing Y’s needs. The lack of Occupational Therapy caused injustice to Y and Mrs X. The Council has agreed to apologise, arrange therapy provision for Y and make a payment to recognise Y’s loss of provision. The Council has also agreed to improve its services.

The complaint

1. Mrs X complains about the Council’s failure to secure delivery of the Occupational Therapy (OT) provision included in her son’s (Y) Education, Health and Care (EHC) Plan. She also says the Council failed to arrange extra education for Y when he was on a part-time timetable at school and refused to carry out a reassessment of Y’s needs.
2. Mrs X says the Council’s failings meant Y lost provision and they impacted his ability to engage with education. Mrs X’s work and health, she says, were also affected.

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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 has done. (Local Government Act 1974, sections 26B and 34D, 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. 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)
7. 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

8. I have decided not to investigate anything that happened when Y attended his school in 2023/2024. As pointed out in paragraph four we normally investigate events which happened within 12 months from when the complainant came to us. Mrs X brought her complaint to us in mid-June 2025. I cannot see any good reasons to investigate the Council’s actions when Y attended school on a part-time timetable in the last year of his primary school. If Mrs X was unhappy about the Council’s actions, she should have complained at the time.

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How I considered this complaint

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

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What I found

Law and guidance

Delivery of special educational provision

11. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
12. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

EOTAS

13. A council may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school. (Children and Families Act 2014 section 61(1))

Reassessment of child’s EHC needs

14. Councils must secure reassessment of the child’s educational, health care and social care needs if requested by their parent unless:
• it has carried out an assessment or reassessment within the period of six months prior to that request, or
• it is not necessary for the authority to make a further assessment. (Children and Families Act 2014 section 44(2), Special Educational Needs and Disability Regulations 2014 regulation 24)
15. The local authority must aim to complete the reassessment process as soon as practicable. The maximum timescale for a reassessment is 14 weeks from the decision to reassess to the issuing of the final EHC Plan. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.192)

What happened

Background

16. In 2023/2024 Y was in Year 6 of his primary school.
17. In autumn 2023 the Council reviewed Y’s EHC Plan. At the beginning of February 2024 the Council issued Y’s final amended EHC Plan. Section F of the EHC Plan included provision for 13 hours of direct and indirect OT. When attending his school in 2023/2024 Y received OT from a service commissioned by the Council (Provider 1).

From mid-June 2024 to July 2025

18. An Annual Review meeting for Y took place in mid-July 2024. During this meeting Mrs X asked the Council to reassess Y’s needs. She explained that the statutory Educational Psychology (EP) advice was prepared for Y in 2020 and it no longer reflected Y’s presentation. Besides Y’s EP assessment was only virtual. The school recommended amending Y’s EHC Plan to reflect his transfer from a mainstream school to the EOTAS package.
19. In mid-August 2024 the Council wrote to Mrs X with the Council’s decision to carry out a reassessment of Y’s needs. SEND officer explained that following the review of his plan the Council would issue Y’s final EHC Plan to reflect the change in the Council’s position regarding Y’s placement. After a
20. reassessment of Y’s needs the Council would re-issue the plan with appropriate amendments. In further correspondence with Mrs X the Council reiterated it would not be making any further amendments to Y’s EHC Plan before the reassessment of his needs.
21. In mid-September 2024 the Council issued Y’s final amended EHC Plan. Section I was left blank. Section F included a tailored educational programme of up to nine hours per week of individual tutoring and 13 hours of the OT provision.
22. In October 2024 an EP assessed Y and prepared his advice.
23. At the end of December 2024 the Council issued Y’s final EHC Plan. The EHC Plan included the annual OT provision for 23.5 hours. The OT provision was based on the OT report prepared in June 2024 by Provider 1.
24. In the third week of March 2025 Provider 1 told Mrs X that Y’s therapist would not be returning to work for some time. Provider 1 was looking for a local independent therapist to continue supporting Y.
25. On the same day Mrs X told the Council Y had not been receiving OT since July 2024. A few weeks earlier somebody came to assess Y but no OT sessions followed.
26. The Council contacted Provider 1 asking whether they had managed to find a suitably qualified OT to replace Y’s therapist who was unavailable.

Complaint

27. At the end of May 2025 Mrs X complained.
28. The Council responded in mid-June. It apologised for not securing OT for Y. The Council offered Mrs X £1,281.25 as an equivalent of missed OT hours.
29. Mrs X brought her complaint to us in mid-June 2025.
30. At the beginning of December 2025 Mrs X told me Y was still waiting for his OT.

Analysis

Delivery of special educational provision

31. The Council has a duty to ensure children get provision included in Section F of their EHC Plans.
32. Y received OT when he was attending school in 2023/2024. Once he started EOTAS in September 2024, he stopped receiving OT. This situation continued, despite the Council’s awareness of the lack of provision.
33. The Council’s failure to ensure delivery of OT to Y is fault. It caused injustice to:
• Y as he did not receive support he needed. As set up in his EHC Plan sensory needs are prominent among Y’s special educational needs. They must have increased in 2024 as in June 2024 Y’s OT recommended to increase hours of Y’s therapy provision from 13 hours a year to 23.5 hours a year. For these reasons the lack of OT support must have had a significant negative impact on Y and his ability to engage with education;
• Mrs X as she was frustrated and distressed by the prolonged lack of OT support for Y. She was uncertain how much Y could have progressed with his education if not for the Council’s failure to secure OT support for him. Mrs X spent time contacting the Council and asking it to arrange Y’s provision in line with his EHC Plan.

Reassessment of Y’s EHC needs

34. After agreeing to reassess Y’s EHC needs in mid-August 2024 the Council should have completed the process and issue Y’s final amended EHC Plan by the end of third week of November 2024. This happened a month later.
35. The delay of a month is fault. This fault, however, did not cause injustice to Y as the main change in Section F was to increase his OT hours. He did not have any OT at the time and this situation continued after his amended final EHC Plan was issued in December 2024, so the delay did not affect him. The delay was not long enough to cause significant injustice to Mrs X.

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Action

36. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X and Y for the injustice caused to them by the fault identified. 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 I have recommended;
• make arrangements to deliver the OT provision to Y as described in Section F of his EHC Plan;
• pay Mrs X £1,700 to recognise the Council’s failure to secure OT provision for Y from the beginning of September 2024 to mid-February 2026.

The Council will provide the evidence that this has happened.

37. We also recommend the Council within three months of the final decision send us details of the process the Council follows to ensure children who have OT provision specified in Section F of their EHC Plan receive it, even when the Council’s main commissioned therapy provider does not have availability to deliver the services required.

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Decision

38. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman