Summary: There was fault by the Council. It failed to check whether Miss X’s son was receiving occupational therapy when he moved to a new school in November 2024. The Council also failed to make alternative provision or attempt to deliver her son’s Education Health and Care Plan when he had no school place between June and November 2024. The Council’s failings meant that Miss X’s son missed out on education and occupational therapy and it caused Miss X and her family uncertainty and distress. The Council has agreed to apologise to Miss X and her son, and make a payment to recognise the impact on them.

The complaint

1. The Council failed to ensure that Miss X’s son received occupational therapy (OT) in accordance with his Education Health and Care Plan.
2. Miss X says that as a result, her son found it very difficult to make progress in regulating his emotions and behaviour. She says this resulted in severely risky and harmful behaviour, and also caused her and her family significant distress.

Back to top

What I have and have not investigated

3. 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)
4. Miss X complains about matters going back to before September 2023. She complained to the Ombudsman in June 2025 and so we would usually investigate matters from June 2024 (12 months earlier). However I have exercised discretion to investigate the Council’s actions from September 2023. This is because:
• it was difficult for Miss X to complain sooner due to her own disability and significant caring responsibilities; and because
• her son changed schools in September 2023 and it said it would reassess his occupational therapy needs, and this reassured her that the provision might improve and so she may have had less reason to complain at that stage.
5. I have not exercised discretion to investigate the OT provision before September 2023 because Miss X could have complained about that before June 2024.
6. 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)
7. 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. Miss X says that comments from the Council discouraged her from appealing in case the Tribunal took away provision. However, the Tribunal is the way to set out by parliament to challenge the contents of an EHC Plan, and so it is reasonable to expect Miss X to use that right. This means that I have not investigated whether the Council assessed K’s OT needs for his EHC Plans properly, nor whether the OT included in the Plans was sufficient to meet his needs.

Back to top

The Ombudsman’s role and powers

8. 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)
9. 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)
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

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

Back to top

What I found

The law and guidance

EHC 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 the 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 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. 

Alternative educational provision

16. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.
17. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this, and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
18. If the council decides it must arrange alternative provision, it needs to arrange provision based on the child’s individual needs. It should also have a review process to ensure the provision remains in the child’s best interests. Councils can decide a child cannot cope with full-time provision, especially where the reason for their non-attendance is medical. When this happens, the Council should provide reasons for the amount of provision it arranges.
19. If a child has an EHC Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.

What happened

20. Miss X’s son, K, is disabled. He has physical health needs and special educational needs. K has an EHC Plan and this includes OT. K started a new school in September 2023. K’s EHC Plan at the time said that K should receive 30 Minutes direct OT per week, and a short daily program to follow at school.
21. The school held a meeting to review how K’s EHC Plan was working in October. The review did not mention any issues with K’s OT. As a disabled child, K is deemed a ‘child in need’. This means that the Council holds regular meetings to make sure his needs are met. The November 2023 and January 2024 meetings did not report any issues with the school. However, Miss X tells me that she had been raising with the school and the Council that K had not received his OT at the previous school.
22. The Council issued a new final EHC Plan in January 2024. In terms of OT, the 2024 EHC Plan said that K will follow a short daily program with activities to regulate K’s sensory system (this is known as a sensory diet). He can try a weighted blanket and also use music and sport, with built in OT to support his regulation.
23. However, the school thought that K needed an updated OT assessment as his last assessment had been done in 2019. The school commissioned the assessment in March 2024. The assessment was not completed until May 2024 because the occupational therapists needed to build rapport with K over a number of visits to the classroom.
24. The May 2024 OT assessment addressed K’s sensory needs. It recommended that K trials a program in school with a focus on movement to help him regulate. It also recommended a further assessment around K’s foundational movement skills.
25. However, by late May 2024, K had stopped going to school. In June, the school told the Council that although it could meet K’s needs, Miss X was concerned that it was not the right environment for him.
26. Later that month, in a meeting with Miss X, the school and the Council, Miss X said that K needed OT input but this had not happened. The school confirmed it had spoken to its occupational therapist who could work with K directly, but overall the school could not meet his needs. Miss X says she asked the Council what plans it had to deliver K’s OT while he was not in school, but did not receive a firm plan.
27. At the end of the school year, the school served notice on the Council to end K’s placement with it. The Council started consulting other schools to find K a place that could deliver his EHC Plan. Miss X had mentioned that she might home educate K and so the Council gave her information about this.
28. However, by the end of August, K’s behaviour had deteriorated and a safeguarding enquiry was started.
29. Throughout September 2024, Miss X chased the Council about a school place for K. She told the Council that the school had not provided OT. She said that the situation was having a detrimental effect on K; he was dysregulated; and his behaviour was affecting the whole family. The Council asked Miss X whether she would like K to have some alternative provision while he was without a school place. Miss X agreed but suggested this should be outside the home.
30. At the end of September, the K’s social worker told the Council that his family was in crisis due to K being out of school without any provision. The Council explained that it had consulted with many schools but all had said they could not meet K’s needs, or they were full. However, a potential school was intending to visit K at home to decide whether it could offer him a place. The Council said that in the meantime, it could provide K with tutoring. The social worker agreed they would talk to Miss X about tutoring.
31. In mid-October, the Council, Miss X and the new school met to discuss K starting there. K started at the new school in mid-November, on a reduced timetable in the hope that this would increase as he settled into the new school.
32. That month, the Council issued a new EHC Plan in December 2024. In terms of OT, this said K would have a short daily program at school, a sensory diet through the day and other activities to help his regulation. The intention was that K would increase school hours in the coming months. In the meantime the school would arrange a further OT assessment around his sensory needs.
33. The new OT assessment of K’s sensory needs was completed in March 2025. This said that K was using movement to attempt to regulate himself but it was only working for short periods. It suggested a structured programme of physical exercises as well as the OT already set out in K’s EHC Plan.
34. Miss X also complained to the Council in March 2025. She said that the Council had not acted on her numerous requests for OT for K. Miss X said that OT assessment in 2021 established that K has difficulties with sensory processing, and his EHC Plan says he needs OT to support his regulation, a short daily programme and a sensory diet. Miss X said that the schools had not provided this and this meant that K could not manage his emotions, sometimes with serious consequences. Miss X explained that the impact on K meant that she could not work, and had placed a severe strain on family relations.
35. The Council responded to Miss X’s complaint. It said that the new school had arranged a new OT assessment because many years had passed since this had last been completed. The Council will amend the EHC Plan to take account of the recommendations of the OT assessment. The Council said that the school had not made the OT provision of K’s EHC Plan due to him moving school, but it would now implement the new recommendations.
36. Miss X asked the Council to consider her complaint at stage two of its process. She said that although there was now an up-to-date OT assessment, the Council’s complaint response had not mentioned her numerous requests for an updated assessment during meetings and via emails.
37. The Council considered the issues further. It told Miss X that K that the first school had provided a range of activities to support K to regulate his emotions, and to improve his muscle development, spatial awareness and dexterity. The new school had arranged the reassessment and would implement this. The Council said that to date, K had received OT in line with his EHC Plan.
38. In May 2025, the Council checked with the school that it was implementing K’s OT in line with the EHC Plan and the new sensory needs assessment. The school explained that it had tried to deliver OT both directly and indirectly by involving K in jobs around the school or in activities with his peers, but K had been reluctant. It said it would continue to try different approaches.
39. By this time, K was again struggling to attend his reduced timetable and the Council funded alternative educational provision. Information from the provider, suggested that K did not attend all sessions but was able to access some of these.
40. The Council held an interim review meeting towards the end of June. The meeting heard that now K would not attempt academic work and there were worsening concerns about criminal activities. The Council said it would look at a package of education outside of school.

Was there fault by the Council causing K and his family injustice?

41. Miss X has explained that K’s occupational therapy is vital to him being able to access education and also to his mental health. Without intervention, K becomes dysregulated and his behaviour can be destructive. Miss X has described that this had a significant impact on her family.
42. K was at the first school from September 2023 to late May 2024. Miss X did not raise any concerns about OT at the October 2023 review, but I accept that it might have been too early in K’s time at the school to do so, and that she may have raised these elsewhere.
43. It seemed that K needed a new OT assessment and this was arranged in March 2024, and completed in May 2024. The Council has explained that this took longer than expected as the therapist needed to build a rapport with K. This is a reasonable explanation. K had a new EHC Plan in January 2024. If Miss X was not satisfied with the OT set out in that Plan, she had the right to appeal to a tribunal about this. And so although it was clear that K was having difficulty getting to school by the time of the new OT assessment, I cannot say that the Council should have arranged for this to happen sooner.
44. Miss X says the first school was not providing the OT set out in K’s EHC Plan, but this is not clear. The school has explained that it provided many movement-based activities that K could access and these broadly met the requirements of the EHC Plan and of the May 2024 OT assessment. The school offered several different outdoor and indoor activities as part of the curriculum throughout the week as well as sports before and after school, and walking the school dog. These appear to broadly cover the types of exercise set out in the Plan. In addition, there was no clear indication that K was not getting OT in line with his Plan.
45. I am not satisfied that the Council did enough to check what OT he was getting at the new school between November 2024 and March 2025 when it updated the plan with the new OT. Given that he had been out of school, and that Mis X had raised concerns about OT provision, it should have made sure that the provision was being made. I cannot see that the Council completed an annual review of the EHC Plan before January 2025. This would have allowed it to check that plans were in place to deliver the OT. This was fault by the Council and leaves Miss X uncertain as to what OT had been delivered during that time.
46. The new OT assessment was started in March 2025 and completed in May 2025. The case notes show that the Council checked how the school could deliver the new recommendations.
47. Having reviewed Miss X’s correspondence with the Council, it seems that at the heart of this complaint is that the OT in the EHC Plans was not sufficient and was not doing enough to help K regulate so that he could stay in school or manage various situations, and sometimes this had very serious consequences. However, if Miss X thought the OT in the Plan was not sufficient, or should have been geared differently towards K’s sensory needs, she had the right to appeal this to the Tribunal. There is no good reason why Miss X did not appeal and so I have not investigated any complaints about the content of the EHC Plans.

Alternative educational provision and EHC Plan provision while K had no school place

48. K was out of school and without any educational provision that he could access from June 2024 for the remainder of the school year, and then from September to mid-November 2024. This totals around 12 weeks. The Council says that K remained on the roll of the first school until the last day of the summer term. However in late June, at a meeting between Miss X, the school and the Council, the school said it could not meet K’s needs.
49. The Council case notes indicate that, from July, it considered whether to make alternative educational provision, and that Miss X agreed to this. In response to my investigation, the Council has said that it had to focus on finding a new school for K, and on supporting him to transition to the new school. However, it is not clear whether the Council decided that it had a duty to provide this, nor whether it explored what provision it could make. This is fault by the Council.
50. In addition, the Council had a duty to make sure that K received his EHC Plan provision even while he is not able to attend school, as far as this is possible. The Council says that K had direct payments from social care that could fund activities and he had access to the leisure centre. However, it is not clear that these payments were to implement the EHC Plan, nor that the Council properly considered how K might receive any of his EHC Plan while he was out of school. This too was fault by the Council.
51. I am mindful that the new school planned to visit K and from September 2024, the Council believed that this would be imminent. However, K had no school place from September to mid-November. Had the Council properly considered its duty to make alternative educational provision and to deliver the EHC Plan where possible, including the OT, it is likely that K would have received some provision during this time.
52. The Council’s shortcomings meant that K missed out on alternative educational provision and OT from late June to mid-November. This also caused him and his family distress and uncertainty.

Back to top

Action

53. The Council should within one month of the date of this decision:
• Apologise to Miss X and if she feels appropriate separately to K. 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.
• Pay to Miss X £1,200 in recognition of the missed educational provision and EHC Plan provision from late June to mid-November 2024.
• Pay to Miss X £150 in recognition of the distress and uncertainty it caused her when it failed to check whether K was receiving OT in accordance with his EHC Plan from mid-November 2024 to May 2025.
54. The Council should provide us with evidence it has complied with the above actions.

Back to top

Investigator's decision on behalf of the Ombudsman