Summary: Mrs X complained the Council failed to provide her child, Y with provision as outlined in their Education, Health and Care (EHC) Plan. She also complained about annual review delays. The Council failed to ensure Y received Speech and Language Therapy provision from September 2023 to June 2025 and has not issued an amended Plan following an annual review in 2023. As a result, Y has lost out on Speech and Language Therapy for over one and a half years. The Council agreed to make payments to acknowledge the impact on Y’s education and the distress and uncertainty caused to Mrs X. It also agreed to issue Y’s amended EHC Plan without further delay and carry out service improvements.

The complaint

1. Mrs X complained about how the Council has handled her child, Y’s education and their Education, Health and Care (EHC) Plan since 2022. Specifically, she complained:
1. the Council has failed to ensure Y received Speech and Language Therapy (SaLT) provision as outlined in the EHC Plan since August 2022, and
2. failed to issue an amended EHC Plan or decision letter following an annual review in November 2023 and has not held one since.
2. Mrs X said Y has missed out on SaLT for nearly 2.5 years and their EHC Plan is now significantly out of date. This has impacted on Y’s education and development and has caused her distress and uncertainty.

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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 suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
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(i), as amended)
6. 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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What I have and have not investigated

7. 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)
8. I have not investigated Mrs X’s complaint about the Council’s failure to commission SaLT between August 2022 and August 2023 because the complaint about this period is late. Mrs X was aware of the issues during that period, and it would have been reasonable for her to raise the complaint with us much earlier. As there is no good reason for the delay, we are not considering that part of the complaint.
9. Mrs X complained to us in December 2024 however, I have used discretion to investigate Y’s lost SaLT and ‘Wellies on’ provision from September 2023 to date as there is continuing injustice.

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How I considered this complaint

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

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What I found

Relevant law and guidance

EHC Plans and EHC needs assessments

12. 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.

Maintaining the EHC Plan and reviews

13. 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)
14. 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  

15. 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.
16. 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

17. Mrs X has a child, Y who has special educational needs (SEN). In February 2022 the Council issued Y with an EHC Plan naming a mainstream school in Section I. Mrs X did not agree with the Council’s decision to name a mainstream school and so she appealed the decision to the SEND Tribunal.
18. Following the hearing, the Tribunal ordered the Council to amend the plan, and it issued an amended final EHC Plan in August 2022. This plan listed education other than at school (EOTAS) for Y.
19. The Plan set out Y the provision Y would receive. This included 10.5 hrs of direct SaLT per school year initially and school staff would continue to deliver this therapy in weekly social skills groups following training. The Council also allocated six hrs of indirect SaLT to feed into Y’s annual reviews and reports. However, since Y received education outside of school, they were unable to attend the weekly social skills group meetings outlined in their plan. The Plan also outlined Y would receive weekly ‘Wellies On’ provision which is a therapeutic alternative education provider which improves self-esteem and social skills.
20. By October 2023 Y was not receiving any of the SaLT or ‘Wellies on’ provision.
21. In November 2023, the Council held an Annual Review (AR) of Y’s plan. 
22. Records of the review show, Mrs X told the Council SaLT provision was not in place. She also indicated the existing SaLT provision was unsuitable since Y was not attending school. Additionally, the Occupational Therapist (OT) requested an increase in the number of occupational therapy hours allocated to Y.
23. There is no evidence the Council issued a decision letter confirming whether it intended to amend Y’s plan following the review, nor did it issue an amended plan.
24. Mrs X contacted the Council asking for an update on the missing SaLT provisions in June 2024 and then again in January 2025.
25. Mrs X complained to the Council in February 2025 about the lack of SaLT and ‘Wellies On’ provision. She believed Y needed more OT and further specialist therapy provision. She also complained the Council had failed to issue Y’s amended EHC Plan following the November 2023 review meeting.
26. In February 2025, the Council responded to Mrs X’s formal complaint apologising to Mrs X. It accepted:
• It failed to commission SaLT provision for Y.
• It failed to commission ‘Wellies On’ provision.
• It failed to issue a decision letter and amended Plan following the annual review in November 2023.
27. Mrs X remained unhappy and complained to us.
28. Since complaining to us the Council commissioned SaLT for Y in January 2025 however this stopped again during March 2025 and only restarted in June 2025. There is no evidence any ‘Wellies on’ provision has been commissioned to date.
29. The Council held another annual review meeting in April 2025 and records show it again plans to amend Y’s Plan.

My findings

Complaint a

30. Following a Tribunal hearing, the Council issued an amended final EHC Plan listing SaLT and ‘Wellies on’ provision in Section F. While the Council commissioned all other provisions as set out in the plan, it accepted it failed to commission SaLT and ‘Wellies On’ provision. Mrs X contacted the Council on several occasions asking about the missed provisions. Only when she complained about it in January 2025, did the Council action and commissioned SaLT with immediate effect starting from 15 January 2025. However, sessions ceased again after nine weeks and resumed again in June 2025 resulting in a further fourteen-week gap in SaLT sessions.
31. With the continuing injustice in the first half of this year, Y has missed out on nearly two full school years (five terms) of SaLT and (six terms) of ‘Wellies On’ provision from September 2023 onwards. The loss of provision impacted on Y’s education and development especially for social interactions.

Complaint b

32. The Council carried out an annual review in November 2023. The Council failed to issue a decision letter following the review and to date has not issued an amended Plan. This is a delay of over 18 months and fault which means Y has not had their EHC Plan updated for nearly two years. It has also denied Mrs X a right of appeal to the SEND tribunal and caused distress and uncertainty.
33. The Council held another annual review meeting in April 2025 and intends to amend Y’s Plan. The 12-week deadline to do so is at the end of June. I have made a recommendation below to ensure the Council does so within statutory timescales to prevent further delays.
34. The Council currently has an ongoing SEND improvement plan which includes actions around annual reviews and for ensuring EOTAS packages are implemented. We are continuing to monitor compliance through our casework. Given this I have not made further service improvements around its annual review processes.

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Agreed action

35. Within one month of the final decision the Council agreed to take the following action:
1. apologise to Mrs X and pay her £500 to acknowledge the distress and uncertainty caused by the annual review delays and its failure to ensure Y received the SaLT and ‘Wellies On’ provision between September 2023 and to date. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. pay Mrs X £5000 to recognise the impact on Y caused by the loss of SALT and ‘Wellies On’ provision in line with their EHC Plan between September 2023 and June 2025.
3. issue Y’s amended EHC Plan following the April 2025 annual review ensuring Mrs X receives her SEND tribunal appeal rights.
36. Within two months of the final decision the Council agreed to:
1. ensure that both SaLT and 'Wellies On' provision — or an appropriate alternative therapeutic provision in line with Y’s latest EHC Plan — are commissioned and fully in place by the start of the 2025/26 academic year.
2. review its commissioning arrangements for Speech and Language Therapists to ensure it has sufficient therapists to deliver Speech and Language therapy provision outlined in EHC Plans. If this is already part of the Council’s SEND improvement plan it should provide us with an update on its progress.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. I have found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman