Summary: Miss X said the Council had not delivered the speech and language therapy set out in her child’s Education, Health and Care Plan. We found there was fault by the Council and Miss X’s child had missed about eight months of therapy sessions. To address the impact on the child’s education and the distress caused to Miss X, the Council had apologised and taken corrective action. The Council also agreed to increase its offered symbolic payment to suitably address the injustice caused by its fault.

The complaint

1. Miss X said the Council failed to provide the speech and language therapy set out in her child’s (C) Education, Health and Care Plan (EHC Plan) when she moved school in September 2024. Miss X said the lack of therapy adversely affected C’s educational development. Miss X wanted the Council immediately to secure and or fund a qualified speech and language therapist to provide the therapy in C’s EHC Plan and to address the missed provision. Miss X also sought a placement at a specialist school as the added developmental delay caused by the lack of therapy meant it was now impossible for C to continue in a mainstream school.

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The Ombudsman’s role and powers

2. 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)
3. Service failure can happen when a council 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 a council to say service failure (fault) has occurred. (Local Government Act 1974, section 26(1), as amended)
4. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(1), 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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How I considered this complaint

7. I considered evidence provided by Miss X and the Council and relevant law, policy and guidance. This included the Special Educational Needs and Disability Regulations 2014 (the SEND Regulations). It also included the Government’s statutory guidance, the ‘special educational needs and disability code of practice: 0 to 25 years’ (the Code). I also gave Miss X and the Council an opportunity to comment on my draft decision and considered any comments received before making a final decision.

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What I found

Background

8. A child 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 the child’s needs, education, or the name of the educational placement. Only the council or the First-tier Tribunal (Special Educational Needs and Disability) can do this. We refer to this tribunal as ‘the Tribunal’ in this decision statement. The Tribunal considers appeals against many council decisions about special educational needs.
9. The council must arrange for an EHC Plan to be reviewed at least once a year to make sure it is up to date. (Regulations 18 to 20 of the SEND Regulations and paragraphs 9.166 to 9.183 of the Code)
10. The council must also review and amend an EHC Plan in enough time before a child moves between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfers include: 

• early years provider to school;  
• infant school to junior school; and
• primary school to secondary school.  

11. A review is only complete when the council issues its decision to amend, maintain or cease to maintain an EHC Plan. If the council does not amend the EHC Plan, it must tell the child’s parents of their right to appeal that decision to the Tribunal.
12. The council has a duty to make sure the child receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act 2014). The Courts have said this duty is owed personally to the child and is non-delegable. This means if the council asks another body to make the provision but it 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)  
13. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the section F special educational provision in every pupil’s EHC Plan. We consider councils should demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have procedures in place to: 

• check the provision is in place when issuing a new or amended EHC Plan or on changing the child’s educational placement; 
• check the provision at least yearly when reviewing the EHC Plan; and 
• quickly investigate and act on complaints or concerns about provision not being in place. 

What happened

14. C had an EHC Plan that included provision for speech and language therapy (SALT). The National Health Service (NHS) was delivering C’s SALT.
15. In early 2024, the Council reviewed C’s EHC Plan, making no changes, knowing C was changing school in September, which move later took place. In preparing for C’s move, the Council also recommended the NHS reassess C’s SALT for September 2024.
16. In late 2024, an NHS speech and language therapist reassessed C’s needs. The NHS prepared a report (the Report) on the reassessment and discharged C from its SALT service. The Report recommended an increase in C’s SALT sessions for each academic year.
17. The Council received the Report in 2025 and about two months after the NHS reassessment. Around the same time, Miss X contacted the Council about C not receiving SALT.
18. The following month, the Council started to review C’s EHC Plan and Miss X complained about C not receiving any SALT since September 2024. In summary, Miss X said C’s reassessment had been delayed and so the Council should backdate the increase in SALT sessions. Miss X also asked for weekly SALT sessions to try to make up for the missed provision. Miss X also said, missing SALT, had adversely impacted C’s education and development meaning a mainstream school was no longer suitable. Miss X therefore asked that C move to a specialist school from September 2025.
19. The Council considered Miss X’s complaint under its two stage complaints procedure. In summary, the Council accepted it failed to meet its legal duty to secure C’s SALT provision, and apologised. It also engaged a private therapist to deliver SALT for C to start during the Summer term 2025. The Council told Miss X the therapist, over the next two school terms, would deliver weekly SALT for C to make up for the missed provision. The Council also said it would amend C’s EHC Plan to include the increased SALT sessions recommended in the Report. The Council said it faced difficulties securing therapists due to increasing demand for SALT and was working with the NHS to address the problem. The Council offered Miss X £300, which she refused, to recognise the stress caused by what happened.
20. A month later, C started to receive weekly SALT sessions. The Council then issued an amended EHC Plan for C that included the increased SALT sessions in line with the Report. The amended EHC Plan also named a specialist school for C’s placement from September 2025.

What the Council told us

21. The Council said, normally, the local NHS trust delivered SALT set out in EHC Plans. And when this was not possible, it either appointed, or funded the relevant school to appoint, a private therapist. Here, it became aware C was not receiving SALT in early 2025 and then contacted the NHS. The NHS said it had discharged C from its speech and language service and so was no longer delivering any SALT. The Council said it then sought a private sector therapist for C. But, given the high demand for SALT, it had taken about two months to appoint the therapist and by then Miss X had complained. It also took another two months for the private therapist to start delivering SALT for C.
22. The Council said C was now receiving the SALT set out in the amended EHC Plan and had received added SALT to compensate for the missed provision. It had considered C’s needs and the extent of the missed provision in deciding extra SALT sessions would be appropriate. This was also in line with Miss X’s views (see paragraph 18 of this statement). However, in future it would seek advice from a therapist in deciding how to respond to a child’s missed SALT provision.
23. The Council did not accept that C’s September 2025 move to a specialist school arose because of the missed SALT provision. Miss X shared many reasons for seeking a move from a mainstream to a specialist school including smaller class sizes, the added experience of teaching staff, and access to third party specialists. Having considered C’s needs and Miss X’s request, it found a specialist setting appropriate and secured a place for C from September 2025.
24. The Council said it monitored delivery of SALT when carrying out yearly EHC Plan reviews. And, when made aware of concerns between reviews, it acted, as in C’s case, by seeking information from the relevant school and SALT provider.
25. The Council pointed to the national shortage of speech and language therapists and said addressing this problem was beyond its direct control. However, it was working with the local NHS trust to respond to the challenge and acting to address increasing demand for SALT. This included increasing the budget for SALT and commissioning added NHS and private therapist support. It was also improving its contract management to help both in forecasting demand for SALT and ensuring its delivery or early notice of missed delivery.

Consideration

26. The Council had a legal duty to ensure C received the SALT set out in their EHC Plan. In practice, C’s SALT was being delivered by the NHS (see paragraphs 12 and 14). The Council reviewed the Plan, making no changes to the SALT provision, in readiness for C’s move to a new school in September 2024 (see paragraph 15). I saw no evidence the Council had any reason to foresee the delivery of SALT would not continue over the following year, including when C moved school. However C did not receive any SALT on starting at the new school. And I saw no evidence the Council, or Miss X, were told that delivery of C’s SALT had stopped following the September 2024 school move.
27. When, nearly five months later, Miss X became aware C was not receiving SALT, she contacted the Council. The evidence showed the Council responded quickly, contacting the NHS, which confirmed it was no longer delivering SALT (see paragraph 21). It then took the Council over three months to secure a new therapist and for SALT to again be delivered to C. The Council accepted it was at fault as C did not receive the SALT set out in their EHC Plan. I agreed this was fault. However, I recognised demand for speech and language services often exceeded the availability of therapists to deliver those services. I therefore found the fault here to be a service failure (see paragraph 3).   
28. The fault I identified at paragraph 27 arose in a year when C moved between school phases and so concerned a key and important stage in C’s education (see paragraph 10). I found the failure to deliver SALT in line with C’s EHC Plan likely had an adverse impact on C’s education and development. The fault I identified also likely caused Miss X avoidable distress and frustration. I therefore found the Council’s fault caused significant personal injustice.   

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Action

29. As I found fault causing injustice, I considered our guidance on remedies. The Council, having secured a new therapist to deliver SALT for C, had taken further corrective action. C’s speech and language needs were reassessed and the EHC Plan reviewed and amended to increase SALT provision. And, in line with Miss X’s requests, added therapy sessions were delivered to try to compensate for the SALT C had missed. C had also moved to a specialist school in September 2025. The Council had apologised and offered Miss X £300 for the time and stress caused by what happened. I therefore considered whether the Council’s actions and the offered £300 suitably addressed the injustice to Miss X caused by the Council’s fault.  
30. A move between school phases (see paragraph 10) marks a key stage in a child’s education. And, regardless of the reasons, C had moved to a new school in both September 2024 and September 2025. I found that to address the injustice caused by fault in a proportionate, appropriate and reasonable manner the Council should increase the proposed symbolic payment. The Council agreed my recommendation to (within 30 working days of this statement):

• make a symbolic payment of £500 to Miss X in recognition of the avoidable distress caused by its fault related to the shortage of speech and language therapists.

31. The Council also agreed to send us evidence it had complied with the actions set out at paragraph 30.
32. I considered what the Council said about its partnership working with the local NHS trust and proposals to improve contract (see paragraph 25). I was satisfied the Council was acting to improve its EHC Plan service to minimise the likelihood of future similar problems in delivering SALT. I therefore decided that, at this point, there was no need to make added service improvement recommendations.

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Decision

33. I found fault causing injustice. The Council agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman