Summary: Mrs X complained the Council delayed providing physiotherapy and music therapy as required by section F of her son’s Education Health and Care Plan. The Council failed to commission any physiotherapy for approximately seven months and missed one term of music therapy. An appropriate remedy for the missed physiotherapy which includes a symbolic payment and catch up sessions, is agreed. The Council has already provided a remedy for the missed music therapy.

The complaint

1. Mrs X complained the Council delayed providing physiotherapy and music therapy as required by section F of her son’s EHC Plan.
2. Mrs X says that her son has a life limiting medical condition so his education and health needs are complex. The delay in providing the required provision has affected his ability to attend school and caused distress for the whole family.

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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. 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)
5. 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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How I considered this complaint

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

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What I found

EHC Plan 

8. 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. 

Reviewing EHC Plans

9. 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. Following the review meeting the council must issue a decision to either 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) 
10. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
11. 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.

Maintaining the EHC Plan

12. 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)  

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Key facts

13. This section sets out the key events in this case and is not intended to be a detailed chronology.
14. Mrs X’s son, Z, has a life limiting medical condition so his educational and health needs are complex and he cannot attend school unless suitable support is in place. The annual review meeting for Z’s EHC Plan took place on 4 November 2024. The Council wrote to Mrs X on 18 December notifying her of its intention to amend the EHC Plan. The final EHC Plan was issued on 24 March 2025.
15. In April 2025, Mrs X provided the Council with information from an independent physiotherapist. The Council agreed to review the EHC Plan and issued an amended EHC Plan on 7 May to include physiotherapy sessions.
16. Mrs X complained to the Council on 30 May regarding delays in the EHC Plan review process and failure to implement provision. The Council accepted it did not complete the annual review within the statutory 12-week timescale and apologised. It also accepted it then issued a final amended EHC Plan including physiotherapy provision without giving Mrs X an opportunity to comment on a draft version. It said it was a final version but that it was willing to re-open the EHC Plan to allow Mrs X to comment if she wished. It said it would start the tendering process for the physiotherapy provision and that once a provider was identified it would consider Mrs X’s request for catch up provision.
17. The music therapy provision began in January 2025 and continued until January 2026. The Council says that it restructured its special educational needs service in January 2026 and this resulted in a commissioning gap. It took action in March 2026 to recommission the provision and sessions restarted on 13 April. I am aware the Council has paid Mrs X £600 to recognise the lack of music therapy for three months.
18. In respect of the physiotherapy provision, the Council issued a tender in July 2025 but did not receive any positive responses. It says it then carried out direct consultations with providers but again received no positive responses. In November Z’s headteacher contacted the Council saying there was a physiotherapist that could work with Z in the interim. She suggested the school could pay for it from its own budget until the Council could take over the payments. The physiotherapy arranged by the school began in December 2025. The Council is working with the school to refund the money it has paid for this therapy. The Council has still not commissioned the physiotherapy going forward.

Analysis

19. Councils are required to review EHC Plans at least annually. The annual review of Z’s EHC Plan started in November 2024 and the final amended EHC Plan was issued in March. This took longer than the statutory 12-week timeframe and so is fault.
20. The Council then reviewed the EHC Plan after Mrs X submitted new information. It did not give Mrs X an opportunity to comment on the further proposed changes, which is should have done, however it included the physiotherapy sessions that Mrs X wanted. After issuing the final amended EHC Plan on 7 May, appeal rights engaged and so if Mrs X disagreed with the stated provision she could have appealed. There is no evidence Mrs X appealed and so I can only assume she agreed with the provision stated. So while there was fault in the Council not giving Mrs X an opportunity to comment, I am not persuaded this resulted in an injustice significant enough to warrant further action.
21. Mrs X has complained about the failure to deliver all the provision set out in Section F of Z’s EHC Plan. The Council has acknowledged the music therapy ended in January 2026 and was not promptly recommissioned. Z missed out on a term of music therapy but this is now reinstated and the Council has made a payment to Mrs X to recognise this. I note this payment is higher than amounts the Ombudsman would normally recommend.
22. However, the Council has failed to commission the physiotherapy since including it in the EHC Plan on 7 May 2025. The Council accepted an offer made by the school which meant Z started to receive physiotherapy in December 2025. This means Z missed out on physiotherapy provision from May to November 2025. This is fault. However, the Council has not yet commissioned the provision and so a level of uncertainty remains.

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Action

23. To remedy the injustice caused as a result of the fault identified above the Council will, within one month of my final decision, take the following action:
• Apologise to Mrs X for the fault identified. 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;
• Make a symbolic payment of £200 to recognise the distress caused as a result of the failure to deliver the physiotherapy and delay in issuing the EHC Plan;
• Meet with Mrs X to explain the situation regarding the provision of physiotherapy, the actions taken so far to commission the provision and what it will now do to ensure it is delivered; and
• When commissioning the physiotherapy, and if appropriate for Z’s needs, include extra sessions to cover the seven month period when no provision was provided. If this is not possible, make a symbolic payment of £500 to recognise the lost provision.
24. The Council should provide us with evidence it has complied with the above actions.

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Decision

25. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman