Summary: Mr X complains the Council failed to provide the salt and language therapy provision in his daughter Y’s Education, Health and Care Plan for several years. And the Council failed to arrange suitable full-time education for Y when she stopped attending school in January 2024 impacting on Y’s education and wellbeing and causing stress to Mr X. Based on current evidence, we found fault by the Council as it did not make the salt and language therapy provision in 2024. The Council has accepted it was at fault and offered a suitable remedy. We found fault by the Council as it failed to respond to Mr X’s concerns about Y not attending school, but this did not cause a significant injustice to Mr X and Y. So, we have completed our investigation.

The complaint

1. Mr X complains about the way the Council has dealt with his daughter Y’s education. In particular Mr X says the Council has:
• Failed to ensure the Speech and Language Therapy (SALT) provision in Y’s Education Health and Care Plan (EHC Plan) has been made since 2023.
• Failed to arrange suitable full-time education from January 2024 when Y’s attendance at school dropped.
• Failed to obtain SALT reports for Y during an EHC needs assessment review in 2024.
2. Mr X says this has caused a negative impact onto Y’s education and wellbeing. And placed an unreasonable burden onto Mr X including financial hardship causing distress.

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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 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. While the Local Government Act 1974 sets out what we can investigate it also explains what we may not consider.
6. 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)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. 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

10. I have not investigated Mr X’s concerns about a lack of SALT provision before January 2024. This is because it was open to Mr X to have raised a complaint with us before now about these matters. So, his complaints about matters in 2023 are late and there are no good reasons for us to exercise discretion to consider the issue now.
11. I have investigated Mr X’s complaints the Council failed to provide Y with alternative provision during 2024 and SALT provision from January 2024 to February 2025. I have not investigated Mr X’s concerns about SALT reports for the EHC needs reassessment in 2024. This is because the Council issued a final amended EHC Plan on 10 February 2025 and Mr X appealed to the SEND Tribunal on 10 February 2025. Mr X’s appeal includes his concerns about the reports the Council obtained so we cannot investigate this part of Mr X’s complaint or any concerns he has raised after that date as paragraph six explains.

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How I considered this complaint

12. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
13. Mr 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

Legal background and statutory guidance

EHC Plan

14. 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

15. 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)
16. 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.

Reviewing EHC Plans

17. 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)
18. 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.

Alternative provision

19. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

What happened in this case

20. What follows is a brief chronology of key events. It does not include all the information I reviewed during my investigation.
21. Y has an EHC Plan and attends a mainstream secondary school. The Council held an annual review of Y’s EHC Plan in November 2023. The annual review meeting noted Y’s attendance for the previous year was recorded at 88% and the levels of educational attainment indicated Y was making steady progress. The Council says there were no concerns expressed about Y and no recorded discussions of concerns about her attendance. The Council issued a final Amended EHC Plan for Y on 8 January 2024. The plan referred to SALT provision in section F (Special Educational Provision) including indirect monthly SALT provision and support for “in school” provision
22. In February 2024 the Council also commissioned an ‘expert tutor’ (tutor) from a tuition provider to support Y due to a reference to a fall in attendance to 78% in correspondence. The tutor support was commissioned by a senior officer who no longer works for the Council, so it has limited information about the decision. But the tutor was appointed to support Y and provide liaison with Council and education services to reduce demands on Mr X as Y’s parent.
23. During February 2024 to July 2024 the school recorded an increase in Y’s attendance to 84% with 12% of absences due to illness and 5% were unknown as Mr X did not provide an explanation. The Council says the involvement of the expert tutor appeared to support attendance.
24. Y had been subject to a Child in Need (CIN) planning since May 2024 following a social work assessment due to needs within the family and Y’s health conditions. The Council holds the CIN meetings every 8 to 12 weeks. The Council also provided other support to the family. The support included a comprehensive social work assessment of Y’s individual needs and how best to support her at both school and home.
25. The Council and school carried out an annual review of Y’s EHC Plan in October 2024. The senior officer attended the review for the Council. It has limited information about whether Y’s attendance was discussed due to the officer leaving the Council and the school not sending in the annual review paperwork. But Mr X requested a reassessment of Y’s SEN in October 2024, and the senior officer agreed to the request. Mr X was asked which professionals he considered should be approached for information, but the Council received no reply. In commenting on the draft decision Mr X provided evidence he emailed the Council in response in November 2024 with suggested professionals to contact.
26. The Council sought advice from the school and other professionals in November 2024 for the needs reassessment. The school had crossed through the SALT provision from 2024 during the annual review and the Council queried the proposed removal. The school said it considered Y no longer required the input and it had discussed removing it with Mr X. The school referred to a SALT review report dated 22 July 2023 which stated all of Y’s communication and interaction outcomes had been achieved.
27. A social worker visited Mr X at home in December 2024 to begin the comprehensive assessment on Y. During the assessment Mr X advised the social worker Y’s school attendance had reduced to 78%. Mr X also raised concerns about Y’s attendance on 6 February 2025 by email saying it had dropped to lower levels causing him concerns. The Council says unfortunately these reports were not received by the Family Services team responsible for Y’s education. In addition, the school did not advise the Council of the reduced attendance either and so the Family Services team for education were not aware of this until a CIN meeting on 7 March 2025.
28. The Council received an additional report from an educational psychologist (EP) in January 2025 which identified Y’s additional needs and provision but noted she did not require SALT sessions. The Council included information from the EP’s report in a draft EHC Plan which it issued in January 2025. Mr X disagreed with the draft EHC Plan and lack of SALT provision.
29. The Council issued a revised draft EHC Plan in early February 2025. Mr X did not agree with the draft and asked the Council to issue a final EHC Plan so he could start the appeal process. The Council finalised and issued the final EHC Plan on 10 February 2025. Mr X appealed to the SEND Tribunal the same day.
30. Mr X complained to the Council there had been a lack of SALT provision for Y during 2024. The Council responded and acknowledged the Final EHC Plan issued in January 2024 outlined some SALT provision for her. So, due to this and despite the 2023 SALT report saying Y’s outcomes had been achieved, there had been a lack of therapy provision as outlined in Y’s EHC Plan. The Council apologised and offered Mr X a remedy payment of £1,485 in recognition of the lost provision. This was based on the cost of one hour session a month for 12 months and the cost of one hour’s support to Y each week for 39 weeks. It also offered Mr X an additional remedy of £500 for associated distress in line with our guidance on remedies, making a total payment of £1,985.
31. The Council confirms it was satisfied that before March 2025 Y’s SEN provision was being delivered by the school and she had full access to the national curriculum. It considered the school was providing education with Y attending approximately 80% of the time. The remaining time the absences were recorded as illness, medical or exceptional circumstances. The EP report in December 2024 stated the school setting had put in place many strategies and adjustments to help Y’s inclusion and support her progress.
32. The Council says it was unaware of any concerns about Y’s attendance after the tutor was appointed in February 2024. It says at no point did Mr X or the tutor commissioned to support Y tell the Council there were any concerns about attendance as this had increased during 2024. Once the Council became aware of attendance issues in March 2025 as Y’s recorded attendance fell to 60% it arranged a reintegration package for Y supported by the tutor. The package was for alternative provision including an additional tutor to help catch up with missed work, off site support at a farm centre and SALT provision interventions.
33. The Council investigated the reported absences with the school. It challenged the school recording of some absences as authorised and questioned why the developing attendance issues were not highlighted to it sooner by the school.

My assessment

34. The Council confirms it is satisfied that from January 2024 to March 2025 the school was making the provision set out in Y’s EHC Plan and she was receiving education.
35. The Council has acknowledged there was no annual review documentation in October 2024. And it has limited information about whether Y’s attendance was discussed. This is fault by the Council as we would expect it to ensure it has documentation to show how it reached decisions. But I consider the injustice caused to Mr X and Y is limited and not significant enough to justify our involvement. This is because the Council had commissioned a tutor to support Y from February 2024 following a reference to a small fall in attendance. Although we have limited information about the decision to commission a tutor it is clear the Council had already acted on a brief fall in Y’s attendance and taken action to support her to attend school.
36. The evidence shows Y’s attendance increased from February 2024 following the appointment of the expert tutor. The Council says no further concerns were raised about Y’s attendance until March 2025. But a Council response to a complaint by Mr X in March 2025 shows he raised concerns about Y’s attendance in December 2024 during a social work assessment and sent an email in February 2025 as Y’s attendance had dropped further. The Council accepted in the complaint response the reports about attendance in December 2024, and email in February 2025 were not sent to family services dealing with Y’s education. The Council confirms it took prompt action to ensure that Y received the specific provision listed in her EHC Plan as soon as it was aware in March 2025 her attendance had dropped. This support continued and increased once Y’s attendance ceased almost entirely in the summer term of 2025.
37. We consider the Council a corporate body and it was clear Mr X raised concerns about Y’s attendance. So, we would expect this to be raised with education services. I consider the failure to do so was fault by the Council. But this failure caused limited injustice to Y and Mr X. This is because the Council had already taken steps to provide support in terms of the expert tutor over and above the SEN funding in the EHC Plan. So, I consider on the balance of probabilities it is unlikely the Council would have done any more at that stage or put any alternative provision in place until the CIN review in March 2025. The Council was also aware of the strategies and adjustments the school put in place for Y.
38. The Council has accepted it failed to make the SALT provision available for Y during 2024. I consider the Council’s proposed remedy offer for the missed SALT provision is suitable as it has explained its reasoning and it is in line with our Guidance on Remedies. So, I do not consider we could add to any previous investigation by the Council, or that further investigation would lead to a different outcome.

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Decision

39. I find fault not causing injustice over the attendance at school and the Council has offered a suitable remedy for SALT provision, so I am completing my investigation.

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Investigator's decision on behalf of the Ombudsman