The Ombudsman's final decision
Summary: The Council was at fault for failing to provide all of Mrs X’s child’s special educational needs and for delays handling her complaint. This meant her child missed provision they needed, and the delays caused Mrs X frustration and cost time and trouble. We are satisfied the Council apologised and offered an appropriate and proportionate financial remedy. We have not upheld the rest of Mrs X’s complaint.
The complaint
Mrs X complained about the way the Council handled a review of her child’s Education, Health and Care (EHC) plan, and her complaint. Specifically, she complained the Council: failed to attend an annual review of her child’s EHC plan; failed to send the proposed amendments to the EHC plan within the statutory timeframes; repeatedly sent documents to her in a way it knows she cannot access, and which it previously agreed not to do; failed to provide her child with the provision set out in their EHC plan; and, delayed handling her complaint.
Mrs X said this caused frustration and distress, and meant her child missed out on necessary provision. Mrs X said she paid for solicitors to get the Council to put provision in place.
The Ombudsman’s role and powers
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) 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) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated As I have said above, we cannot investigate late complaints unless we decide there are good reasons.
Mrs X had a complaint with us in 2024 about events in 2023. We issued our decision on that complaint in July 2025. Mrs X made this complaint to us in September 2025.
I have found no good reasons to exercise our discretion and look back further than 12 months before Mrs X complained to us in September 2025. Therefore, I have investigated the Council’s actions between September 2024 and September 2025.
How I considered this complaint
I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies.
What I found
What should have happened Special educational provision A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This plan sets out the child’s needs and what arrangements should be made to meet them.
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) Annual reviews The council must arrange for the EHC plan to be reviewed at least once a year to make sure it is up to date. 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) 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. The parent then must be given at least 15 calendar days to comment and make representations on the proposed changes.
Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
Councils can delegate holding an annual review meeting to the child’s school. The Regulations do not say councils must attend annual review meetings.
Complaint handling The Council’s complaints procedure says it will respond to complaints at the first stage (stage one) within ten working days. It says this can be extended up to 40 working days.
The procedure says the Council will respond at the second and final stage (stage two) within 20 working days.
What happened Mrs X’s child, B, has an Education, Health and Care (EHC) plan.
In April 2024, there was a review of B’s EHC plan. In May, the Council told Mrs X it would amend B’s EHC plan. It sent Mrs X its proposed amendments to the plan in June, and issued the final plan in July.
In September, B was due to start occupational therapy, in line with their EHC plan. In October, Mrs X asked the Council when B’s occupational therapy would start.
In March 2025, Mrs X complained about the delay sending the proposed amendments to the EHC plan and the delay starting occupational therapy. She also complained the Council sent her documents via a secure online provider which it had agreed it would not do.
The Council sent its complaint response in August. It apologised for the delay sending its response. The Council accepted it had not sent the proposed amendments to B’s EHC plan within four weeks of the review meeting. However, it said this did not cause Mrs X an injustice because the Council issued the plan within the statutory timeframes.
The Council accepted that B’s occupational therapy started late (in November rather than September). It said B missed nine sessions.
The Council said it had agreed with Mrs X in June 2024 that it would not send documents via the secure online provider. It said it would send her documents by recorded post. The Council said it told Mrs X at that time that it could not guarantee this for every document because of staff changes. It said Mrs X had verbally confirmed that she understood this. The Council said there was a note on B’s file not to send documents via the secure online provider, and instead should be sent by recorded post.
The Council offered Mrs X £650: £450 to remedy B’s missed occupational therapy sessions; and, £200 for Mrs X’s frustration and her time and trouble due to the delay sending the complaint response.
In September, Mrs X complained to the Ombudsman.
Analysis The annual review Mrs X complained the Council failed to attend the annual review of her child’s EHC plan (part a of the complaint).
As I have said above, councils do not have to attend annual review meetings. Therefore, I do not find the Council at fault.
Proposed amendments Mrs X complained the Council failed to send the proposed amendments to the EHC plan within the statutory timeframes (part b of the complaint).
I find the Council sent the proposed amendments to B’s plan two weeks late. However, the Council issued the final EHC plan within 12 weeks of the review meeting, as it should have done. And the time between the Council sending the proposed amendments and issuing the final plan was more than the 15 days Mrs X should have been given to comment.
I find that the delay of two weeks sending the proposed amendments is not significant enough to constitute fault. Further to this, I do not find the delay caused Mrs X injustice. This is because she had more than the minimum time to comment on the proposed amendments before the Council issued the final plan.
For these reasons, I do not find the Council at fault.
Sending documents Mrs X complained the Council repeatedly sent documents to her in a way it knows she cannot access, namely via the secure online provider. Mrs X complained the Council previously agreed it would not send documents this way (part c of the complaint).
I have seen the Council’s record of documents it sent between September 2024 and September 2025. Out of six occasions, one document was sent via the secure online provider.
The Council accepted it sent other documents (which were related to Mrs X’s appeal of B’s EHC plan to the SEND Tribunal) via the secure online provider. We cannot investigate councils’ conduct during an appeal to the Tribunal. (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) For this reason, I cannot investigate how the Council sent Mrs X documents related to her appeal. I note that the Council said sending these documents via that secure provider was outside its control.
I find that, for the most part, the Council sent Mrs X documents in the way she asked. I do not consider one incident of sending Mrs X documents via the secure online provider is significant enough to be fault.
For this reason, I do not find the Council at fault.
Special educational provision Mrs X complained the Council failed to provide B with the provision set out in their EHC plan (part d of the complaint).
The Council accepted that B did not receive all of the occupational therapy provision, in line with their EHC plan. The Council’s complaint response accepted B did not get nine sessions. Mrs X said this was not accurate. She said B did not get 12 sessions.
B did not get all the occupational therapy provision they were entitled to. This is fault. This caused B injustice because they missed out on sessions they were entitled to receive.
I note here that our investigation of Mrs X’s previous complaint found the Council had failed to put B’s occupational therapy provision in place. There appears to be an emerging pattern of failing to provide B’s occupational therapy provision.
In this case, the Council offered Mrs X £450 to remedy the injustice caused by these missed sessions. Mrs X said she did not accept the Council’s offer because the Council failed to take into account the trauma that the missed sessions caused B. Mrs X said B could not attend their classes because they did not get the occupational therapy which would have regulated them and helped B to stay in school.
I have considered that B missed up to 12 out of 38 sessions of occupational therapy. I have considered B’s age, the provision they did receive, and the impact of B not getting these sessions. I also considered our published guidance on remedies.
Taking all of that into account, I find that the Council’s offer of £450 to remedy the injustice caused by the missed occupational therapy sessions is appropriate and proportionate. For this reason, I will not propose a different remedy.
The Council’s offer of an appropriate and proportionate financial remedy, in line with our guidance on remedies, shows good complaint handling practice.
It is Mrs X’s choice whether to accept the Council’s offer or not. The Council should keep this offer open to Mrs X.
Legal fees Mrs X paid for a solicitor to send the Council a letter before taking legal action about the delay starting B’s occupational therapy. Mrs X wants the Council to reimburse these legal fees because she said instructing a solicitor was her only choice to get the Council to put the occupational therapy in place without further delay.
I have considered Mrs X’s request and our guidance on remedies.
Mrs X felt is was not reasonable for her to have waited for the Council to complete its complaints process then come to the Ombudsman.
I have considered whether it was reasonable for Mrs X to have engaged legal help with this. I do not consider this was reasonable. Mrs X could have complained to the Council and brought her complaint to us. She did this after she instructed the solicitor, paid legal fees, and the occupational therapy was in place.
I have also considered that this was not a complex matter: it was simply a case of the Council putting the occupational therapy in place. Miss X said it was a complex issue. I do not agree.
I find it was Mrs X’s choice to pay these legal fees rather than wait for the complaints process to run its course. While this choice may be understandable, I do not consider it a reason for the Council to reimburse these fees. For this reason, I have not recommended the Council reimburses Mrs X’s legal fees.
Complaint handling Mrs X complained the Council delayed handling her complaint (part e of the complaint).
Mrs X complained in March 2025. The Council sent its complaint response in August 2025.
After the Council’s complaint response, Mrs X asked if it was the Council’s final complaint response. The Council told Mrs X the next step was to complain to the Ombudsman. This indicates the Council’s complaint response was a stage two response.
The Council’s complaints procedure says the Council will respond at stage two within 20 working days. I find the Council’s complaint response was five months late. This is fault. I find this fault caused Mrs X injustice because it caused frustration and cost her time and trouble.
The Council’s complaint response accepted it was late and apologised. It also offered Mrs X £200 to remedy the injustice caused. Mrs X has not accepted this offer.
I find the Council’s apology and offer of £200 are in line with our guidance on remedies. I find the Council’s offer is suitable, appropriate and proportionate to the level of injustice caused. For this reason, I will not propose a different remedy.
The Council’s offer of an appropriate and proportionate financial remedy, in line with our guidance on remedies, shows good complaint handling practice.
It is Mrs X’s choice whether to accept the Council’s offer or not. The Council should keep this offer open to Mrs X.
Decision I find fault causing injustice. The Council has offered an appropriate remedy for the injustice caused. Therefore, I have not proposed a different remedy. It is Mrs X’s choice whether or not to accept it.
Investigator's decision on behalf of the Ombudsman