Summary: Mr X complained about the Council’s handling of his child, Y’s education. The Council was at fault for failing to maintain oversight and secure therapy provision as set out in Y’s final Education, Health and Care (EHC) Plan between April and September 2025 after a SEND tribunal order. The Council agreed to apologise and make a payment to acknowledge Y’s loss of provision and for the injustice caused to both Mr X and Y.

The complaint

1. Mr X complained about the Council’s handling of his child, Y’s education. He said the Council failed to:
1. ignored independent reports to include SaLT, OT and Psychotherapy provision in Y’s final EHC Plan;
2. secure OT, SALT and Psychotherapy provisions following a SEND tribunal order in March 2025;
3. provide Y’s school with an adequate budget to secure the provisions within the EHC Plan; and
4. complete a carers assessment following a recommendation from the SEND tribunal.
2. He said these failures caused avoidable distress, financial hardship, and disrupted Y’s education.

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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. 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.
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
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. 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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What I have and have not investigated

9. I have investigated the delays in completing Y’s final, amended EHC Plan following the Tribunal order in late March 2025 and whether the Council met its duty to secure the provisions set out in Y’s Plan up to the end of June 2025 when it issued its final complaint response to Mr X.
10. I have considered the Council’s delay in securing Y’s provisions set out in their final amended EHC Plan after Mr X complained to us until September 2025 because I consider they are matters of continuing fault and injustice, and I have sufficient evidence to reach a sound and balanced decision.
11. I have not investigated events between April 2024 until April 2025 because Mr X used his right of appeal to the SEND tribunal against the content in Sections B, F and I of Y’s EHC Plan which was issued in March 2024. This includes Mr X’s complaint about the Council’s failure to follow advice contained within his independent specialist reports and include therapy provision in the EHC Plan. In line with paragraphs 18 to 24 below this puts the above period outside of our jurisdiction.
12. Part of Mr X’s complaint is that the Council failed to carry out a carer’s assessment for Mr X as suggested by the Tribunal. We are not satisfied the Council knows about this part of Mr X’s complaint and has had an opportunity to investigate and reply. In line with paragraph 6 we therefore cannot investigate this part of Mr X’s complaint as it was not unreasonable for him to notify the Council of the complaint and give it an opportunity to investigate and reply.

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How I considered this complaint

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

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What I found

Relevant law and guidance

EHC Plan 

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. 

Content of an EHC Plan

16. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section H: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. (Where relevant this includes adult social care provision to meet eligible needs under the Care Act 2014).
• Section I: The name and/or type of educational placement 

Duty to arrange provisions set out in an EHC Plan

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)  

SEND tribunal

18. 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.
19. 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;

How 26(6)(a) applies when appeal rights have been engaged and relevant caselaw

20. 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)
21. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
23. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

Injustice we cannot remedy because a right to appeal to Tribunal was or could have been used 

24. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

What happened

25. Mr X has a child, Y, who has special educational needs and challenging behaviour.
26. The Council issued an EHC Plan for Y in March 2024 following an EHC needs assessment. Mr X appealed the sections B, F and I of the Plan to the SEND Tribunal. He said the Council failed to consider independent reports and include various provision such as OT, SALT and psychotherapy in the Plan.
27. In November 2024 the Council agreed to amend Section F and include therapy provision during the tribunal process. Mr X believed the Council should have secured the agreed therapy provisions from this point onwards.
28. In late March 2025 the Tribunal process concluded and it ordered the Council to amend Y’s EHC Plan. The Council issued Y’s final EHC Plan in April 2025 following the Tribunal. The final amended Plan included the following therapy sessions:
• Occupational Therapy (OT) – 4.5 hours direct per term
• Speech and Language Therapy (SaLT) - 60 minutes of direct 1:1 sessions weekly and:
• Psychotherapy - 45 minutes weekly
29. In May 2025, Mr X complained to the Council that it had failed to secure the therapy provision outlined above since November 2024. At the same time Mr X’s solicitor notified the Council about Mr X’s intention to pursue legal action as a result.
30. In response to Mr X’s legal letter, the Council said it contacted Y’s school requesting an update. The Council said the school informed them of a funding issue and if the school had made the Council aware of this sooner, it could have intervened sooner.
31. The Council said once aware it acted to secure Y’s provisions. Mr X told us the Council arranged Y’s provisions as follows:
• OT from mid to late June 2025;
• SaLT from September 2025; and
• Psychotherapy from November 2025 (Mr X said he funded these sessions privately up to this point)
32. In June 2025 Mr X complained to us.

My findings

Issuing Y’s final, amended EHC Plan following Tribunal

33. The Tribunal ordered the Council on 28 March 2025 to amend Section B of the Plan and issue Y’s final amended Plan. The Council issued Y’s final amended Plan on 25 April 2025. This was within the five week timescale set out in the law and therefore not fault.

Lack of provisions

34. Although the Council agreed to include the therapy provision during the tribunal process in November 2024 it had no legal duty to secure those provisions before the Tribunal’s order. That legal duty began when it issued Y’s amended Plan in late April 2025. The evidence shows:
• Y did not receive any OT provision in line with their Plan between April 2025 and June 2025;
• Y did not receive any SALT provision in line with their Plan between April 2025 and September 2025; and
• the Council failed to fund Y’s psychotherapy until November 2025, although Y did receive this provision from May 2025 onwards.

The delay in securing those provisions was fault.

35. The Council said the school had not made it aware of funding issues. However, the duty to secure provision in an EHC Plan is non-delegable. It is the Council that retains the overarching duty. The lack of action and oversight from the Council between April 2025 and May 2025 was fault.
36. The delays in securing those provisions impacted on Y’s education and social development and has caused Mr X distress and uncertainty.
37. Y did receive psychotherapy sessions between April and November 2025 however these were funded privately by Mr X. Therefore, there was no injustice to Y but I have included a recommendation below to ensure the Council reimburses Mr X for these sessions.
38. There is evidence the Council acted to secure psychotherapy provisions from May 2025 onwards but it did not start funding the sessions before November 2025 This seven-months delay was fault. However, Y did receive psychotherapy throughout this period and as a result the Council’s delay in setting up the funding for the sessions did not cause Y an injustice.

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Actions

39. Within one month of the final decision the Council agreed to take the following action:
1. Apologise and make a payment of £1200 to Y and Mr X in recognition of the uncertainty and distress caused by the Council’s failure between April and May 2025 to maintain oversight of securing Y’s provision set out in their final EHC Plan following the Tribunal order and for the two and five-months delays in arranging Y’s OT and SaLT provisions. 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.
2. Upon production of relevant invoices reimburse Mr X for the privately funded psychotherapy sessions he paid for between May and November 2025 when that provision was not in place.
3. Implement staff training to ensure officers are aware of the Council’s duty to maintain oversight of securing provisions set out in EHC plans.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. I have found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman