Summary: Mrs X complained the Council failed to deliver provision outlined in her child, B’s Education Health and Care Plan. She also complained about delay in reviewing the plan. The Council was at fault. B missed therapies for two years. It is likely the missed therapies had a significant impact on B’s education. The Council will apologise to Mrs X and make a symbolic payment to her.

The complaint

1. Mrs X complained the Council failed to deliver occupational therapy (OT) to her child, B, for two years, from July 2023. She also complained the Council only delivered part of the speech and language therapy (SALT) B should have received.
2. Mrs X complained about the delay in reviewing B’s Education, Health and Care (EHC) Plan in 2024, and 2025.
3. Mrs X said the Council failed to communicate with her properly and in a timely manner.

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The Ombudsman’s role and powers

4. 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)
5. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
9. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended).
10. 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(i), as amended)

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What I have and have not investigated

11. Mrs X complained to us in January 2025.
12. Mrs X said she first understood the therapies B needed were not being delivered in September 2023. At points during the 16 months that followed some provision was delivered. She said the Council also repeatedly reassured her that outstanding provision was imminent and then let her down. Having considered this, and reviewed the current evidence available, I have decided to start my investigation in July 2023.
13. The matters complained about are continuing. Therefore, I have decided to investigate until July 2025, despite this being after Mrs X complained to the Ombudsman. Matters after this time will not be considered.

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How I considered this complaint

14. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
15. 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

Law and guidance

16. 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. 
17. 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. 
• Section I: The name and/or type of educational placement 

18. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• 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;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

19. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
20. 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. The process is only complete when the council issues its decision to amend, maintain or discontinue 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) 
21. 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.

What happened here

22. This is a summary of key events relevant to this investigation. It is not a list of everything that happened.
23. B is a Disabled child. B is diagnosed with autism and global developmental delay and has a wide range of associated health needs. B also has a range of special educational needs. B lives at home with her parents, Mrs and Mr X.
24. The period complained about covers B moving from primary to secondary education. B goes to a specialist school for pupils with profound and multiple learning difficulties.
25. Prior to the period investigated, in June 2023, Mrs X attended a Tribunal hearing about sections B, I and F of B’s plan. The final hearing took place, and a consent order was granted.

2023

26. The SALT listed in B’s EHC Plan was integral to her learning. The plan said she needed weekly one to one intervention. It was essential for her to communicate with peers and staff. The plan said the therapist should have experience of working with children with B’s conditions. The therapist was responsible for termly review of B’s support, with Mrs and Mr X, and providing training and support to school staff.
27. The OT B’s EHC Plan said she needed, was slightly less than the SALT. The plan specified B should receive 5 one to one sessions per term. However, the provision was also integral to supporting B in school. School staff were expected to receive training from the occupational therapist. The plan said the therapist should be knowledgeable about B’s conditions and be experienced in their profession.
28. Mrs X expected the OT and SALT to be implemented in school from September 2023 onwards.
29. In September 2023 the Council were notified by the clinical team already working with B, that the newly agreed SALT outlined in B’s EHC Plan was far greater than what had been delivered previously. It asked the Council questions about funding.
30. Later that month, when Mrs X realised SALT was not being delivered to B she complained to the Council. Mrs X complained the SALT was not in place for B to start in September 2023, at the start of the new school year.
31. At the end of September, the Council made its response to Mrs X’s complaint at stage one of its procedure. It apologised. It said the Tribunals team did not hand over properly to the Casework team. It upheld the complaint. It said the caseworker would now organise the provision. It told Mrs X it would fund a private therapist to deliver SALT if it needed to.
32. The Council contacted school in October 2023 to ask about the provision being delivered. The Council asked the school what was in place for B.
33. The clinicians working with B told the Council they could not deliver what was in her EHC Plan.
34. A speech and language assessment took place in October for B. Three sessions were delivered to B and to school staff. The plan was to hand over to a private provider who had capacity to deliver provision B needed.

2024

35. At the start of March 2024, the EHC Plan annual review took place. The school sent the Council its comments three days after the meeting.
36. Mrs X complained to the Council towards the end of April 2024 because she had not received any communication from the Council following the EHC Plan annual review meeting. She also complained about the lack of OT in place for B.
37. In May the Council made its response to Mrs X at stage one of its complaint procedure.
38. It referred to the national shortage of therapists to deliver OT. It said this was the reason it had not been able to deliver OT provision to B. It said it failed to communicate the decision about whether to amend the EHC Plan, to Mrs X. It apologised to Mrs X and told her:
• the Council were having discussions with an OT provider,
• a draft amended plan had been created in April, but not shared with Mrs X,
• the draft EHC Plan would be sent to Mrs X by a date in May,
• it recognised its failure to adhere to the required annual review timeframes,
• compensation would be considered at the next stage of the complaint,
• it had reviewed its internal procedures, commissioning arrangements, and delivered staff training, and
• apologised to Mrs X.
39. Mrs X asked for her complaint to be escalated to stage two of the Councils complaint procedure.
40. In June the Council made its response to Mrs X at stage two of its complaint procedure.
41. It said:
• it recognised the continuing delay in progressing the EHC Plan for B, and apologised,
• further work had taken place to learn from the failings in Mrs X’s complaint, including work around commissioning,
• the Council’s ability to provide specialist therapies to children and young people was limited because of widespread demand for therapists,
• provided a new deadline for the draft amended EHC Plan to be sent to Mrs X, and
• it upheld Mrs X’s complaint and signposted her to the Ombudsman.
42. The Council sent Mrs X a draft amended EHC Plan.
43. The next day, Mrs X returned her comments to the Council.
44. The Council issued the final EHC Plan at the start of July.
45. B received some SALT in 2024; however, the provision did not carry on in September.
46. Mrs X sought support from a specialist advocacy service in December.

2025

47. In January, the Council contacted two different providers to ask about occupational therapy.
48. At the end of January, the EHC Plan annual review took place.
49. At the end of February, the Council contacted two different providers to ask about SALT.
50. In March a SALT provider was identified. An OT assessment took place.
51. In July a SALT assessment began. However, provision was not put in place for B for the rest of the school year.
52. When Mrs X asked for an update, in May, about the OT, the Council did not know why the provision had not properly started.
53. In June some OT was delivered to B. It was minimal.

My findings

EHC Plan Annual Review

54. In 2024 the EHC Plan annual review meeting took place at the start of March. Within four weeks of the meeting in March the Council should have informed Mrs X about its intention to either amend, maintain or discontinue the plan. It is unclear whether this decision was formally shared with Mrs X. I have not reviewed a decision letter being sent to Mrs X.
55. The draft amended plan was not sent to Mrs X until the end of June, nearly 12 weeks later than it should have been. This was despite the Council considering it at stage one and stage two of its complaint procedure.
56. The final EHC Plan was issued at the start of July 2024, nearly five weeks later than it should have been.
57. In 2025 the EHC Plan annual review meeting took place at the end of January. Four weeks later Mrs X should have received a letter explaining the Councils intention to either amend, maintain or discontinue the plan. She did not.
58. When responding to my formal enquiries, in July, the Council said it did not receive the review paperwork from the school until May 2025. This is not a reason for delay on the Councils part. I have not reviewed a decision letter being sent to Mrs X outlining the Councils intention to amend the plan, or not. It is the responsibility of the Council to ensure reviews take place in a timely manner and that decisions are communicated properly. The Council should have active oversight of the process.
59. The Council acknowledged its failure to meet the expected timeframes for the 2025 review. Mid-August 2025, the Council sent Mrs X a draft amended plan. The final plan was issued at the end of August.
60. I find the Council at fault for failing to review B’s EHC Plans, in 2024 and 2025, within the required statutory timeframes. I also find fault with the Council for failing to properly communicate its decisions with Mrs X. This fault caused Mrs X unnecessary distress, time and trouble.

Failure to deliver B’s Occupational Therapy and Speech and Language Therapy

61. In July 2023, failure to hand over the necessary information, from the Tribunal team to the Casework team impacted the provision being organised in a timely manner. The Council did not act. The therapists already working with B and the school were unclear about who would deliver the therapy to B from September 2023 onwards. This was fault by the Council and created the first stage of delay for B.
62. Several failings on the Councils part contributed to B not receiving the necessary therapy as outlined in her EHC Plan. In response to my formal enquiries about the complaint, the Council said service failure was the reason it failed to deliver the provision B needed. It said there was a shortage of occupational therapists and speech and language therapists nationally and this impacted delivery of the provision in the Council area.
63. While this may well have contributed to the failure to provide the necessary support to B, the Council could have taken more proactive, and dynamic action to attempt to source provision. Its actions added to the significant delay experienced by B, at an important transitional period in her education.

Occupational Therapy

64. The clinical team already working with B, in September 2023, told the Council B was not known to its OT department. It told the Council it was not commissioned to provide OT to B.
65. I reviewed email correspondence, as part of this investigation, that showed an Occupational Therapist was available to start working with B as early as December 2023. There was confusion between a provider and the Council. The Council appeared to be waiting for costs to be provided. The therapist, in February 2024, explained they had taken on another client, as they were still waiting for costs to be confirmed.
66. The issue about costs drifted for an 8-week period through December to February, during which time the therapist had taken on other work. The evidence showed the Council making attempts to follow this up via email. However, it did not show the Council taking decisive action to organise the provision, ensuring costings were agreed or making follow up contact in a timely manner.
67. Failure to provide prompt, and timely information to providers, was fault by the Council. This fault led to B missing an opportunity to work with an occupational therapist and contributed to the overall delay in her receiving important provision.
68. During Spring 2024 the evidence showed the Council being assured by providers that an occupational therapist was available, and ready to start working with B. Only a few weeks later, the provider told the Council the therapist was no longer free and that it would keep looking. This evidence corroborated Mrs X’s accounts of being informed provision was imminent and then being repeatedly let down by the Council.
69. I find fault with the Council for failing to provide OT to B for two years. This fault was largely due to service failure. The Council said it did not deliver the provision because of a national shortage of therapists.
70. While this would have been out of the Councils control, the Council did not widen the search to try to find providers elsewhere until 2025. The evidence I have reviewed is of the Council contacting only one provider, asking it to find a therapist, and not making other enquiries of its own to source therapists elsewhere.
71. The Council contacted the same provider for over 18 months, with no results. This showed an administrative failure by the Council. It was not until January 2025, shortly after Mrs X had support from a specialist advocate, the Council decided to widen the search and contact a different occupational therapy provider.

Speech and Language Therapy

72. The Council said it made referrals to other providers, when it realised the clinical team already working with B could not provide support she needed. An assessment took place late 2023 with minimal support being delivered. The Council commissioned private SALT for B from February – July 2024.
73. I find fault with the Council for failing to provide SALT to B for most of the two-year period investigated. This fault was largely due to service failure. The Council said it did not deliver the provision because of a national shortage of therapists.
74. However, the Council let the matter drift. There was a lack of proactive and decisive action on the part of the Council. When the Council contacted alternative providers, in early 2025, it was successful within a matter of a few weeks. When the usual providers are unavailable, we would expect the Council to take decision and timely action to try to source provision elsewhere.
75. Failure to make proactive, and direct attempts to source SALT for B, was fault by the Council. This fault has contributed to B missing out on important therapy. This therapy was, and is, integral to B’s success and development at school.
76. Not only did the loss of therapies impact B at school. The OT and SALT was designed to support B to engage with school staff, and socially with her peers. The impact of the loss, at an important transitional stage for B, will likely have been profound.

Communication

77. During the period complained about the Council acknowledged there was several changes in staffing. The evidence showed no less than 5 changes in case worker for B. Most of those changes were either not communicated with Mrs X, or communicated poorly, and not in a timely manner. The Council recognised this.
78. The evidence showed Mrs X maintained consistent, patient, and courteous contact with the Council during the period complained of. The Council committed to providing a weekly update to Mrs X, in early 2025, when the delay had been ongoing for 18 months. The weekly updates were not maintained despite this assurance.
79. The Council was at fault for repeatedly failing to communicate with Mrs X in a consistent, and timely manner. The Council acknowledged this fault. This fault only exasperated an already frustrating and distressing time for Mrs X and she suffered undue time and trouble trying to get a consistent response.

Remedy

80. In response to my formal enquiries, the Council offered to make a symbolic payment of £2,000 to recognise the loss of OT and SALT, for B.
81. The offer is not in line with our guidance on remedies. I have recommended a symbolic payment to reflect the loss of provision on B, for the two-year period investigated, in the following section. The recommendation is in line with our guidance, and is reflective of the injustice suffered by B.

Injustice to others

82. As part of this investigation the Council shared with me its SEND Sufficiency Delivery Strategy, 2022/2023 – 2026/27.
83. The Council told us it could not source the therapy B needed because of a national shortage of trained professionals.
84. Rather than issuing service improvement recommendations as part of this investigation I have decided to make formal enquiries of the Council under Section 26D of the Local Government Act 1974. I have requested data from the Council about the wider impact of the shortage of therapists in its area. This is so I can decide whether there is any indication of potential widespread injustice to members of the public served by this Council.
85. I will consider the Councils strategy in line with analysis of data provided by it as part of a separate investigation.

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Action

86. To remedy the injustice suffered by B, and Mrs X, due to fault by the Council, within four weeks of receiving a final decision, the Council will:
• apologise to Mrs X in line with our guidance on Making an Effective Apology. 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,
• in collaboration with Mrs X, consider whether B needs extra therapies to address the shortfall in OT and SALT provision, and
• make a symbolic payment to Mrs X of £4,200. This payment recognises the two-year period B was without the therapies she should have received to aid her education.
87. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman