Summary: The Council has acknowledged it was at fault, because it did not secure elements of an education, health and care plan, as the law requires. It has already offered a remedy to the complainant for this, but has increased this offer upon our recommendation.

The complaint

1. I will refer to the complainant as Mrs T.
2. Mrs T complains the Council did not secure the occupational therapy (OT) elements of the specialist provision, set out in section F of her daughter, C’s, education, health and care (EHC) plan. As a result, she says C’s academic progress has been hindered.

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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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)

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What I have and have not investigated

5. The law says a person should approach us within 12 months of becoming aware of the issue they wish to complain about. In her complaint to the Council, Mrs T said there had been problems with C’s OT provision since the issue of her first EHC plan in January 2024. However, she did not make a complaint to the Ombudsman about this until October 2025, meaning anything that predates October 2024 is late, and has not formed part of my investigation.

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How I considered this complaint

6. I considered evidence provided by Mrs T and the Council as well as relevant law, policy and guidance.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. C has learning difficulties and attends a mainstream primary school. Since January 2024 she has been subject to an EHC plan, which sets out a range of specialist provision, some of which requires the input of an occupational therapist.
9. In April 2025 Mrs T submitted a stage 1 complaint to the Council. She said C was not receiving the OT provision set out in her EHCP, and that, if a council therapist was not available, it should commission a private therapist instead.
10. The Council responded in May. It said, after issuing C’s EHC plan in January 2024, it had referred her case to its OT team, which had a significant waiting list. The Council said it was unable to commission a private therapist because of the open referral to its own OT team. However, it said it had now been informed the team had closed the referral because it had been outstanding for more than 12 months, for which it apologised.
11. The Council said it would now ask the school to provide a cost estimate for a private therapist, and that it would discuss the provision C had missed with the therapist.
12. Mrs T submitted a stage 2 complaint a few days later. She said the Council had a legal duty to ensure the delivery of the OT provision in C’s EHC plan, and that she believed the lack of implementation showed a mainstream school could not meet C’s needs. Mrs T asked the Council to arrange a private therapist with a fixed date.
13. The Council responded in July. It noted C’s EHC plan had been reviewed and reissued in December 2024. The Council said C’s school had made efforts to implement the OT provision in the plan, but that it had done this without input from a qualified therapist, having been unable to secure the services of a private OT. The Council acknowledged this did not meet the requirements of the EHC plan.
14. The Council explained it could not practically supervise the day-to-day implementation of an EHC plan, but accepted it had a duty to monitor how a school was implementing the plan at certain times, including during a review, or when specific concerns were raised. It said it had engaged with the school during the annual review of C’s plan in October 2024, which it said showed “some oversight was in place”. However, it conceded it had not taken effective action to secure the OT provision afterwards.
15. The Council said C’s school had attempted to make a referral to its Specialist Teacher Advisory Service in January 2024, but it had replied to say it could only accept referrals from the Council’s SEN Service. The SEN Service had acknowledged this in February, but did not make the referral until April. The Council accepted it was at fault for this. It also accepted it had failed to respond to an email from Mrs T in April 2025, in which she raised concerns about the lack of OT provision.
16. While the Council noted the school was implementing most of the OT provision (albeit without input from a therapist), it noted that one particular element of provision had been missed for approximately eight weeks. The Council recognised the school had made efforts to deliver the provision, but said the legal duty to secure the provision was its own, and agreed it had not met this duty.
17. The Council’s report recommended it apologise to Mrs T and offer her £200 to reflect C’s missed provision; support a private OT in delivering the outstanding elements of provision in September; and remind relevant SEN staff that the duty to secure provision set out in an EHC plan was non-delegable.
18. Mrs T referred her complaint to the Ombudsman in October. She said the OT provision was still not in place, and reiterated her view the school could not meet C’s needs. Mrs T said C’s progress was being hindered by the missed provision, and said she wished the Council to name a different school, and provide a financial remedy.

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Legislative background

19. A child or young person with special educational needs may have an 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.
20. 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; and
• section I: the name and/or type of educational placement.

21. 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)  
22. 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.

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Analysis

23. As the Council has acknowledged, once it issued an EHC plan for C, it had a non-delegable legal duty to ensure the provision it set out was implemented properly. Although we recognise it is not practical for a council to monitor implementation on a day-to-day basis, it should be prepared to act when it becomes aware a school may not be delivering a plan properly.
24. In this case, there are aspects of the relevant evidence that appear contradictory. For example, in the report it submitted to the Council following the annual review of October 2024, the school said:

“Recommendations from the OT assessment are being implemented in school both in a small group, 1:1 and as part of the whole class routine. This is also true of supporting [C]’s fine motor skills development.”

(The ‘OT assessment’ referred to by the school was a report completed by a private therapist, which Mrs T had commissioned and paid for in September 2024.)

25. But the school went on to say that:

“[The private] report details that [C] would require an initial block of 10 Ayres' Sensory Integration session to develop sensory perceptual skills. This needs to be delivered by an Occupational Therapist with the necessary post graduate qualifications to deliver the ASI intervention. I believe that this requires specialist OT support which we cannot currently access under Children's Therapy Services… We would need support in being able to access sensory processing training by a qualified Occupational Therapist and deliver this to staff. Please could the SEND Team advise of any links they have to specialist OT support.”

26. This contradiction appears to speak to the problem later described by the Council in its stage 2 response – that while the school had tried to implement the OT provision in the plan, it had done so without the input of an actual therapist, because there was none available.
27. But this is further contradicted by Mrs T, who told me the school later informed her it had not implemented any OT provision at all until March 2026. However, this is anecdotal evidence, which limits the weight I can place on it.
28. Ultimately I do not consider I can come to an accurate understanding of what OT provision was implemented, and when, on the strength of the evidence I have available here. The records are simply not clear enough.
29. But, whatever the exact facts, it appears clear the OT provision, as required by C’s EHC plan, was not properly implemented during much or all of the period covered by my investigation. Whether the school did, as the Council has said, make efforts to implement the plan anyway, without the input of an OT, this cannot be said to have met its requirements. I note this is something the Council has acknowledged itself.
30. In the interests of fairness, I should recognise that the fault here seems, at least in part, to be a matter of service failure, rather than one of simple administrative failure. This is because a lack of available private OTs was a contributory factor, and this is not something the Council has any control over. But, even in such circumstances, I must still find fault.
31. This all being so, I am not satisfied the Council’s offered remedy of £200 is adequate to address the injustice here. The stage 2 response says this figure was calculated with reference to our published guidance on remedies; but, for what appears to be a full academic year without key elements of an EHC plan, I consider a higher remedy is warranted.
32. I should note that the specific tariff set out in the guidance, of £900 to £2400, is intended for situations where a child has missed general education, not an element of specialist support. For this reason, I consider a figure of £200 for each of the spring and summer terms, plus £100 for the second half of the autumn term (the first half of the terms falls outside the period I have investigated) represents a more appropriate remedy for a missed element of provision. This makes a total of £500.
33. Mrs T has confirmed she has already accepted the £200 offered by the Council, which should therefore be discounted from the total. I therefore recommend the Council offer Mrs T £300.
34. In her complaint to the Ombudsman, Mrs T said the Council should name a different school for C, to ensure she was in a placement that could meet her needs. However, the dispute over placement formed part of an appeal Mrs T made to the SEND Tribunal (and, as I understand it, the Tribunal has now decided C should remain at her named school), and this means it falls outside our jurisdiction.

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Action

35. Within one month of the date of my final decision, the Council has agreed to offer Mrs T £300, to reflect its failure to secure the OT elements of the provision set out in C’s EHC plan.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman