Summary: Mrs X complained the Council failed to provide SALT and OT as required by an Education, Health and Care Plan and when a remedy was offered this was not delivered as her daughter, Z, was out of school. Mrs X also complained the Council failed to provide alternative education provision when her daughter was out of school for a term. There was fault by the Council in respect of missing SALT provision which impacted on Z’s mental health but the Council has already provided a suitable remedy.

The complaint

1. Mrs X complains the Council failed to provide SALT and OT as required by an EHC Plan and when a remedy was offered this was not delivered as her daughter was out of school. Mrs X also complains the Council failed to provide alternative education provision when her daughter was out of school for a term.
2. Mrs X says the SALT was vital for her daughter’s education and the lack of provision affected her mental health and meant she was unable to attend school.

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The Ombudsman’s role and powers

3. 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)
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. 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)

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What I have and have not investigated

6. Mrs X complained to the Ombudsman in March 2025 about the lack of SALT provision saying it had not been provided since March 2023. Mrs X did not complain to the Ombudsman about the lack of provision within 12 months of first becoming aware of the situation and so this is a late complaint. There is nothing to suggest Mrs X could not have complained sooner than she did. Therefore, it is appropriate for me to consider the lack of SALT provision from March 2024. However, I will reconsider this position if Mrs X provides evidence to show it was not possible for her to have complained to the Ombudsman sooner than she actually did.

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. 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

EHC Plan 

9. 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. 

Maintaining the EHC Plan

10. 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)  

Key facts

11. This section sets out the key events in this case and is not intended to be a detailed chronology.
12. Mrs X’s daughter, Z, should have received SALT as part of her EHC Plan. There was a staff vacancy at her school and so the provision set out in her EHC Plan was not made. Mrs X made complaints about this to the Council which resulted in it commissioning a service from January 2025. This provision would be for one hour per week, double the weekly amount set out in the EHC Plan, in order to make up for the missed provision.
13. Sessions were arranged to start in January 2025 but Z was not in attendance at the school. It is my understanding that Z’s mental health deteriorated meaning she stopped attending school. The Council took the view it would not be appropriate or possible to deliver the sessions outside the school. The Council subsequently made a payment to Mrs X of £3,500 to acknowledge the missing SALT since April 2023 and the lost education provision for one term in 2025.
14. While Z was unable to attend school, it provided her with work to complete at home. It also set up facetime sessions to ensure the OT was able to continue. Mrs X expressed a preference for Z to move to another school and the Council sent a consultation at the beginning of February. An offer from that school was received at the beginning of March and the placement started approximately one month later.

Analysis

15. The Council has accepted it was at fault for not providing the SALT provision set out in the EHC Plan. It made attempts to resolve this by commissioning an independent therapist to visit the school and provide sessions for Z. However, the provision could not be delivered as arranged but this was not as a result of fault by the Council.
16. After acknowledging the re-arranged provision could not be delivered, the Council offered Mrs X a financial remedy. It says this remedy was for the lost SALT and the lack of education provision for the term Z was not attending school.
17. I note that Mrs X complained to the Ombudsman before the Council arranged a placement at a new school for Z and before it made the financial offer to recognise the provision it had failed to deliver. I therefore have considered whether this amounts to a suitable remedy.
18. The Ombudsman produces a document called Guidance on Remedies which sets out the basis for reaching a suitable remedy. This document states where fault has resulted in a loss of education provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. It also says a remedy may be required for injustice caused by fault in other provision such as missing OT and SALT. It says the level of financial remedy is likely to be lower than that for loss of educational provision and will depend on the level of provision missed and the impact of this on the child.
19. The Council has made Mrs X a payment of £3,500 to acknowledge the missed provision. I am satisfied this payment is in line with the Ombudsman’s guidance on remedies and so will not make any further recommendations.

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Decision

20. I will not pursue the complaint further as a suitable remedy has already been provided by the Council.

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Investigator's decision on behalf of the Ombudsman