Summary: Mrs X complained the Council failed to provide the provision set out in her child’s Education Health and Care Plan. We found fault by the Council which caused Mrs X’s child to miss provision set out in their Plan. The Council agreed to apologise to Mrs X and make a payment to remedy the injustice caused.

The complaint

1. Mrs X complained the Council failed to provide the Speech and Language Therapy (SALT) provision in her child’s Education, Health and Care (EHC) Plan during academic years 2023/2024 and 2024/2025. Mrs X also complained the Council failed to provide the specialist provision specified in a decision by the SEND Tribunal in January 2025.
2. Mrs X stated the Council’s failings have resulted in her child missing provision she is entitled to. It has also caused her frustration and put her to the avoidable time and trouble of pursuing this matter.

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The Ombudsman’s role and powers

3. 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)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. 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)
6. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
7. 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).
8. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
9. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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(1), as amended).
11. 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

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

What I have and have not investigated

14. I have not investigated the period from 15 February 2024 to 22 January 2025. This is because of the restrictions explained in paragraphs 3-6.
15. I have investigated Mrs X concerns about Y missing provision due to the delays in completing the Education, Health and Care Needs Assessment and providing the provision set out in the EHC Plan issued following the Tribunal’s decision.

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What I found

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.
17. The EHC Plan is set out in sections which include: 
• 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. 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). 

SEND Tribunal

19. There is a right of appeal to the Tribunal against a council’s:
• 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;
20. Once the Tribunal issues a decision, the Council must carry out the order within a fixed period. When the Tribunal requires the Council to make and maintain an EHC Plan the council should:
• issue a draft EHC Plan within five weeks of the order being made; and
• send a copy of the finalised EHC Plan to the child’s parent or young person within 11 weeks of the order being made.

Key events

21. Mrs X’s child, Y, has special educational needs.
22. In April 2023 Mrs X asked the Council to carry out an Education, Health and Care Needs Assessment (EHCNA). The Council decided to assess Y and subsequently decided to issue an EHC Plan.
23. The Council should have issued Y with a final EHC Plan in October 2023 but did not do so.
24. Mrs X complained to the Council about the delay. In response the Council said if there was any special educational provision included in the final Plan that was missed due to the delay in issuing a final Plan, it would arrange catch up provision or provide a financial payment.
25. In February 2024 the Council issued Y with a final EHC Plan.
26. Mrs X was unhappy with part of the Plan and in March the Council issued an amended final EHC Plan for Y. Section F of the Plan included the following provision:
• Y requires an identified member of educational setting staff to work on current speech and language targets at least 3 times per week for minimum of 15 minutes per session.
• four SALT visits per term to her educational setting, if the strategies set out in the Plan cannot be embedded throughout the day.
• six sessions of Occupational Therapy (OT) lasting 45 minutes per academic year.

Section I of the Plan stated Y would attend a mainstream provider from September 2024. Y would receive provision at home in the interim period following the breakdown of her current placement.

27. Mrs X was unhappy with the Sections F and I of Y’s Plan and she appealed to the SEND Tribunal.
28. Meanwhile Mrs X complained to the Council because Y was not receiving the provision detailed paragraph 26. She also complained Y had not received the backdated provision promised in October 2023 and that communication from the Council was poor.
29. The Council’s response to Mrs X’s complaint found OT provision for Y remained outstanding but it had until the next annual review to provide this. It said Y’s caseworker was liaising with the NHS to arrange the SALT provision.
30. In September the Council’s Education Governance Board (EGB) agreed to fund 6 hours of OT per academic year via a local provider. The agreement did not specify if the provision would include the backdated provision.
31. In January 2025 the Tribunal decided Mrs X’s appeal. It ordered the Council to amend Y’s EHC Plan to provide the following provision:
• 1 hour per week of SALT with a suitably qualified therapist.
• 1 hour per week of OT with a suitably qualified therapist.
• 1 hour per week of music therapy.
• 1 hour of physical learning per week, such as swimming or attending a gym.
• 2 hours of Forest School per week.

It also ordered Section I to be left blank. Y’s provision would be provided via an Education Other Than At School (EOTAS) package.

32. Also in January Mrs X complained to the Council again. She said Y had not received the OT and SALT provision in her Plan since April 2024.
33. The Council replied to the complaint. It said:
• the quote from its OT provider did not include backdated sessions for Y. This has been resolved, and payment has been made. It apologised for the delay and made Mrs X a payment of £500 for the time and trouble caused to her.
• Y was seen by the SALT team in November 2024 and remains under the SLT service.
34. Unhappy Mrs X escalated her complaint about Y not receiving the SALT provision in her Plan. The Council’s complaint response stated that there is no direct SALT provision in Section F of Y’s Plan and so the Council would not be expected to provide this or backdated sessions.
35. In March Mrs X made a further complaint to the Council about its failure to provide the provision (detailed in paragraph 31) of Y’s Plan.
36. The Council replied saying issues regarding OT and SALT provision were addressed in its replies to Mrs X’s previous complaint and so it would not revisit these matters now. The reply also said:
• Y’s Plan says she will access 1 hour of physical education a week through activities like swimming or attending the gym. The Council is looking to secure this provision but Mrs X’s preferred option of private swimming lessons is expensive and so it is exploring other options.
• Forest school has been agreed and if possible, it will arrange catch up sessions or backdated provision.
37. In June Mrs X escalated her complaint as Y was still not receiving the provision in her Plan. The Council replied in July it said:
• it was unable to source suitable forest school provision for Y and so alternative provision has been agreed in the form of a farm and National Trust passes. It acknowledged funding for the alternative provision was yet to be made available. It will provide any update on this within 10 working days.
• Within 10 working days of its reply the SEND service will consider if a symbolic payment in recognition of the frustration and uncertainty caused by the delays in warranted. It will also consider if a payment should be made in recognition of Y’s missed educational following the Tribunal decision.
38. Unhappy with the Council’s actions Mrs X complained to the Ombudsman. Her grounds of complaint remained the same.
39. We made enquires of the Council. It told us:
• in April 2025 it agreed OT and music provision for Y. It also agreed SALT provision.
• in May it agreed provision for swimming and play based tutoring.
• in July it agreed to provide farm and National Trust memberships instead of forest school as a provider could not be found. Funding was not agreed for the passes to be in place for the summer break.
• SALT provision could not be provided until the Tribunal order as the previous EHC Plan required the provision to be delivered in an educational setting.

Mrs X advised SALT and music provision was put in place in early May 2025 and that swimming and play based tutoring was put in place in early June 2025.

Finding

Missed provision due to delay during EHCNA

40. The EHCNA for Y began in April 2023. The Council decided to issue Y with an EHC Plan and, it should have issued a final plan in October 2023. Failure to do so is fault.
41. The Council did not issue a final EHC Plan until February 2024. The delay caused Mrs X frustration and uncertainty. It also frustrated Mrs X’s appeal rights to the SEND Tribunal. This is injustice.
42. The Plan issued to Y in February 2024 included OT and SALT provision which Y was not receiving prior to the Plan being issued. I am satisfied on balance Y missed out on this education provision because of the identified delay. This is injustice to Y.
43. The Council has provided backdated OT provision covering the period from October 2023 to February 2024. It has also made a symbolic payment in recognition of the delay in arranging this and so I consider it has taken suitable action to address the injustice caused to Mrs X and Y.
44. The Council has not provided backdated SALT provision for the same period and so Y has missed out on this provision.
45. In the Council’s reply to our enquires it said Y did not receive SALT provision because she was not in an educational setting. The Council has a duty to provide the provision in Y’s Plan and so it should have done so irrespective of whether she was in an educational setting.

Missed provision following the Tribunal’s decision

46. The Council had five weeks to issue Y with a final EHC Plan following the Tribunal issuing its order. The provision specified in the Plan must be in place by the time the Plan is issued.
47. The Council did not put in place OT until early April 2025. It did not provide SALT and music provision until early May 2025. This is a delay of around 2 months. This is fault which meant Y missed out on provision she is entitled to. This is injustice.
48. The Council did not put in place swimming and play based tutoring play provision until early June 2025. This is a delay of 3 months. This is fault which meant Y missed out on provision she is entitled to. This is injustice.
49. The Council has been unable to source the forest school provision in Y’s plan. I am satisfied the Council tried to find a forest school provider but had trouble doing so because of Y’s age. This is service failure by the Council.
50. I note the Council agreed to provide passes to outdoor venues in place of the forest school provision however the provision was not put in place. I have seen no evidence that either the forest school or alternative provision has been provided to Y and so she has missed eight months of provision. This is injustice.

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Agreed Action

51. Within one month of my final decision the Council will:
• Apologise to Mrs X for failing to provide the provision Y has missed. 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.
• Pay Mrs X £1500 to recognise the special educational provision Y has missed due to the identified fault. This figure is in keeping with our guidance on remedies.
• Pay Mrs X £200 to recognise the frustration and time and trouble caused to her in pursuing this matter with the Council. I have considered our guidance on remedies and the symbolic payment already made by the Council in recognition of the time and trouble caused to her.
52. The Council should provide us with evidence it has complied with the above actions.

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Decision

53. I find fault causing injustice. The Council has agreed to remedy injustice caused to Mrs X and Y.

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Investigator's decision on behalf of the Ombudsman