Summary: We find the Council failed to ensure that Miss X’s child, Y, received the occupational therapy provision set out in their Education, Health and Care Plan following a Tribunal decision. As a result, Y was without this provision for a significant period. This also caused Miss X distress, frustration and uncertainty. The Council will apologise, make a financial payment to Miss X to recognise the loss of provision, reconsider Miss X’s personal budget request and issue a clear written decision on that request. It should also remind staff of the requirement to provide written decisions on personal budget requests.

The complaint

1. Miss X complains the Council is failing to deliver the Occupational Therapy (OT) as listed in her child, Y’s Education Health and Care Plan (EHC) following a Tribunal decision. She also says it did not consider her personal budget request.
2. Miss X says this has caused significant stress and impacted her mental wellbeing. She also says this has had a financial impact.

Back to top

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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
5. 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)

Back to top

How I considered this complaint

6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. 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

Legislation and guidance

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 council can do this.

Content of an EHC Plan

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

• Section B: Special educational needs.  
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision needed by the child or the young person. 

Personal Budgets

10. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
11. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
12. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
13. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.
14. The council’s (and health commissioning body’s where relevant) duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.

Maintaining the EHC Plan

15. 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)  
16. 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. 

What happened

17. Y has an Education, Health and Care (EHC) Plan. Following Tribunal proceedings, the Council issued an amended final EHC Plan in January 2025. The amended plan included occupational therapy (OT) provision within Section F.
18. In July 2025, Miss X complained to the Council that the OT provision had still not been arranged following the amended EHC Plan. She said Y was not receiving the provision they were entitled to.
19. In August, Miss X made a further complaint and requested a personal budget and a payment for the missed therapy sessions.
20. In September, the Council’s commissioned occupational therapy provider, told Miss X there was a national shortage of occupational therapists. It said repeated recruitment attempts and engagement with agencies had not resolved staff shortages. It told Miss X it hoped capacity would improve by early 2026.
21. In mid-September, the Council responded to Miss X’s complaint. It said she should have received a recent communication from the therapy provider and shared a copy of this. It said the Council was aware of the shortages and was actively recruiting and aimed to restore capacity by January 2026.
22. In September, Miss X complained to us.
23. In October, Miss X contacted the Council and stated she had identified an independent OT provider and asked if this could be funded through a personal budget arrangement.
24. In November, the Council told Miss X the therapist had declined to undertake the specific training requirements and therefore could not be commissioned. It also made a financial remedy payment of £1,437.50 to recognise the missed OT provision during the 2024/25 academic year. It signposted Miss X to us, if she was unhappy with it is complaint response.
25. In February, Miss X submitted an invoice for an OT assessment for another independent provider she had sourced. She requested the Council pay for this invoice.

Enquiries during my investigation

26. The Council said it remained aware of its duty under section 42 of the Children and Families Act 2014 to secure provision in Y’s EHC Plan. It said OT services had been significantly affected by national shortages.
27. The Council confirmed no OT was currently allocated to Y. It also said it had not agreed to fund a sensory assessment requested by Miss X because this was not part of provision specified in Section F of Y’s EHC Plan.
28. The Council provided evidence of internal discussion that stated it would not provide a personal budget as it expected the shortage would end by Spring 2026.
29. The Council explained it had calculated missed provision as 17 missed sessions during the 2024/25 academic year and a further 36 missed hours during 2025/26. It calculated the cost of the session by the amount of sessions missed, which is how it reached the remedy provided.
30. The Council acknowledged it would need to make a further payment for the ongoing loss of provision. It has told us it would pay £1,875 for the further missed sessions.

My findings

EHC Plan

31. Councils have a duty under section 42 of the Children and Families Act 2014 to secure the special educational provision specified in Section F of an EHC Plan. This duty is non-delegable. Where a council commissions another organisation to arrange or deliver provision on its behalf, the council remains legally responsible for ensuring the provision is delivered.
32. The Council accepts this provision has not been fully delivered. The Council says this was due to a national shortage of occupational therapists. However, staffing shortages do not remove the Council’s statutory duty to secure the provision in Y’s EHC Plan. I therefore find fault by the Council.
33. Although the Council explored commissioning alternative providers and later made financial remedy payments to recognise some missed provision, this did not remedy the ongoing failure to secure the provision specified in Y’s EHC Plan.
34. As a result of this fault, Y has been without the OT provision specified in their EHC Plan as necessary to meet their needs, since the amended final EHC Plan was issued following Tribunal proceedings in January 2025. This is a significant injustice. This also caused Miss X distress and uncertainty throughout this period.

Personal budget

35. Where a request for a personal budget is made, the Council is required to consider it and provide a clear written decision. The evidence suggests a discussion took place between Miss X and the Council after she identified an independent Occupational Therapist. In these circumstances, the Council should have provided a written decision on Miss X’s personal budget request, setting out its conclusion and reasons.
36. However, I have not seen a clear written decision setting out whether Miss X’s personal budget request was considered, and the reasons for any refusal. Miss X was also not informed of her right to request a review of any such decision. This was fault. Given the ongoing lack of provision, this lack of clarity caused further frustration and uncertainty for Miss X.
37. The Council has already made financial payments to Miss X and offered a further payment to recognise the ongoing missed OT provision. I consider the level of financial remedy offered is in line with what we may recommend for missed therapeutic provision. However, financial payments alone do not remedy the underlying fault as the provision remains absent, and so I have also included a service improvement.

Back to top

Action

38. To remedy the injustice from the above fault, within four weeks of my final decision, the Council will:
• Apologise to Miss X for the failure to secure OT provision for Y, in line with our guidance on Making an effective apology.
• Pay Miss X £1,875 in respect of missed occupational therapy provision during the 2025/26 academic year (as previously calculated and offered).
• Continue to make payments to Miss X at the same rate for any further missed occupational therapy provision until such time as the provision set out in Section F of Y’s EHC Plan is in place (for a maximum of six months).
• Reconsider Miss X’s request for a personal budget and issue a formal written decision, including clear reasons for its conclusion and information on any right to request a review or challenge the decision.
• Remind all staff that all personal budget decisions should be recorded in writing, including reasons for the decision and information about the right to request a review or challenge.
39. Within three months, the Council will:
• Review its arrangements for securing occupational therapy provision for children with EHC Plans and, in light of its stated expectation that the current shortage will be resolved by Spring 2026, provide an update on whether this has been achieved. If the shortage has not been resolved, the Council should set out an action plan detailing how it will address the ongoing shortage.
40. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

41. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Back to top

Investigator's decision on behalf of the Ombudsman