Summary: Ms D complained the Council failed to ensure her son received the therapy set out in his Education, Health, and Care plan in his school. She said this impacted his education and caused distress. We found the Council at fault as it had a duty to ensure the provision was in place and delivered. It agreed to apologise to Ms D and make a symbolic payment to acknowledge the loss of provision and distress this caused them.

The complaint

1. The complainant, Ms D, complained the Council failed to ensure her son (X) received physiotherapy as set out in his Education, Health, and Care plan.
2. Ms D said, as a result, X had a loss of provision which impacted his education and health. She also said this caused her distress.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 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.
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)

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What I have and have not investigated

8. I have investigated Ms D’s complaint about the Council’s failure to provide physiotherapy provision for X from March 2025 until September 2025.
9. I have not investigated Ms D’s concerns about the special educational needs provision X received prior to March 2025. This is because the content of the provision was part of what was being appealed to the SEND Tribunal.

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How I considered this complaint

10. I considered evidence provided by Ms D and the Council as well as relevant law, policy and guidance.
11. Ms D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. 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

Education, Health, and Care plans

13. 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. 
14. 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)
15. 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.
16. 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)
17. 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.
18. 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.

What happened

19. Ms D has a child (X) who has an EHC plan which sets out his special educational needs and the support he should receive in school.
20. In March 2025 the SEND Tribunal considered Ms D’s appeal against the EHC plan the Council had issued for X, and set out the provision he should receive. A new school placement (school Y) was also agreed during the appeal.
21. In its consultation response to the Council, school Y had said it cannot accommodate the physiotherapy provision in school, it was therefore the Council's responsibility to source, provide, and deliver the agreed provision.
22. Two weeks after the SEND Tribunal order, the Council issued X’s final amended EHC plan. This included for a physiotherapist to work with X and train delegated school staff to support him with his physical difficulties within the educational setting. Each academic year should have four sessions in the first half term, followed by half-termly review sessions. An additional session should be provided when X started a new school.
23. In Summer 2025 Ms D complained to the Council as X was not receiving the physiotherapy and related programme from trained staff in school. She said it was the Council’s responsibility as school Y had made it clear it could not provide this for the outset. She also issued a letter before action.
24. The Council responded to Ms D’s complaint outside the complaints process as she had issued a letter before action. It said would therefore not provide a separate complaint response. The Council explained it had expected school Y would provide the physiotherapy provision for X, but was unable to do so. The Council would therefore source this and said it had started the process.
25. Ms D asked the Ombudsman to consider her complaint. She confirmed no legal action has commenced. She also said she was not happy with the Council’s decision not to escalate her complaint following its response to her letter before action.
26. In response to our enquiries the Council and Ms D confirmed physiotherapy provision started for X in September 2025.

Analysis and findings

27. X was entitled to receive physiotherapy as set out in his EHC plan issued in March 2025. It was the Council’s duty to ensure this was in place, although it was entitled to delegate the delivery of the provision to X’s school.
28. I understand X’s placement at school Y was costly, X attended his education, and the Council believes it was reasonable to expect the school to arrange the physiotherapy for X. However, I have found fault by the Council for its failure to ensure this provision was in place and delivered to X from March 2025. This is because:
• school Y made it clear in its consultation response to the Council it could not source, deliver, or accommodate the physiotherapy provision;
• the Council should have been aware and started arrangements of the provision without delay following the SEND Tribunal order in March 2025;
• no action was taken to source and deliver the physiotherapy provision for X until Ms D complained to the Council; and
• it took until September 2025 for the Council to put X’s physiotherapy provision in place.
29. X therefore had a loss of physiotherapy provision from March to September 2025, which would have been six sessions. The purpose of this provision was to enable him to access and be able to engage with his educational with appropriate support to mitigate the impact his physical challenges had on him.
30. I am therefore satisfied X’s loss of physiotherapy provision has impacted his ability to receive his education. In line with our Guidance on Remedies, I have found a symbolic payment of £1,500 to be appropriate. In reaching my view I also had regard to the loss of provision is likely to have had some impact on his general education in school. This also takes into account the distress and frustration Ms D experienced.
31. I have not found fault in the Council’s handling of Ms D’s complaint. This is because I would not expect the Council to provide a response to both her complaint and her letter before action. It also correctly informed her of her right to complain to the Ombudsman.

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Action

32. To remedy the injustice the Council caused to Ms D and X, the Council should, within one month of the final decision:
1. apologise in writing to Ms D to acknowledge the injustice its faults caused her and 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. pay Ms D £1,500 to acknowledge the impact X’s loss of special educational needs provision had on him, including the distress it caused her between March to September 2025.
2. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I found fault causing injustice. The Council should apologise and make a symbolic payment to acknowledge the impact its fault had on X and Ms D.

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Investigator's decision on behalf of the Ombudsman