Summary: We found the Council delayed in securing the therapeutic provision included in child Y’s Education, Health and Care Plan. This caused Y lost provision which the Council agreed an increased payment to remedy.

The complaint

1. Mrs X complained the Council failed to secure most of the therapeutic provision included in her child’s Education and Health Care (EHC) Plan and, when it admitted this fault, did not offer a suitable remedy. Mrs X also complained the Council did not respond properly to her when she contacted it between September 2024 and March 2025 and delayed in responding to her formal complaint.
2. She said the Council’s faults caused her child, Y, educational and emotional harm. She wanted the Council to provide a suitable remedy.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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.
6. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
7. 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)
8. 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

9. Mrs X complained that the Council didn’t respond properly to her between September 24 and March 25, including her requests for:
• clarification on which secondary schools were being consulted,
• therapeutic provision to begin,
• clarification on the working document for the SEND Tribunal, and
• information about who had taken over after the caseworker went on maternity leave.
10. Mrs X said the Council’s failure to communicate forced unnecessary escalation to the SEND Tribunal.
11. During my investigation, the Council provided me with evidence that, other than communication about therapeutic provision, that I have investigated, all communication during this period was intrinsically linked to Mrs X’s appeal to the SEND Tribunal.
12. 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)
13. 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)
14. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
15. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
16. I cannot investigate this aspect of Mrs X’s complaint.

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How I considered this complaint

17. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. I discussed the complaint with Mrs X on the telephone.
18. 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

Law, policy and guidance

EHC Plan 

19. 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 SEND Tribunal or the council can do this. 

Maintaining the EHC Plan

20. 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)  
21. 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. 

The Council’s complaints policy

22. The Council’s corporate complaints policy says that the service being complained about will provide a written response to customer complaints at stage 1 of the complaints process. It will do this within 20 working days. If the customer is not satisfied with the outcome at stage 1, they can ask for an independent review of their complaint. This will be carried out by a central team who will independently review the stage 1 response and provide a response at stage 2. The Council also aims to provide this response within 20 working days.

What happened

23. This section sets out the key events in this case and is not intended to be a detailed chronology.
24. The Council issued a final EHC Plan for Y in September 2024. This Plan named a mainstream school as the educational setting and included provision in the form of additional support within the classroom, occupational therapy (OT) and speech and language therapy (SALT). Mrs X appealed to the SEND Tribunal about Y’s needs and the named setting. She did not appeal Y’s OT and SALT provision.
25. In February 2025, Mrs X complained to the Council that Y had not received any OT or SALT provision.
26. In June 2025, the SEND Tribunal ruled and ordered the Council to name Mrs X’s preferred school. Y started at the new school that month. Mrs X told me that the therapeutic provision included in Y’s EHC Plan was immediately put in place by the school.
27. The Council responded at stage 1 of its complaints process in mid-June. It apologised for the delay in responding to Mrs X. It upheld her complaint about the lack of therapeutic provision, acknowledging that it had (since she had complained) delivered a quarter of the OT provision set out in Y’s EHC Plan, and around 10% of the SALT provision. It said no more sessions were scheduled that school year and that it would resolve the matter when Y transferred to their new secondary school placement in September 2025.
28. Mrs X asked the Council to escalate her complaint to stage 2 of its process. The Council responded in late July, offering a symbolic payment of £500 in recognition of the shortfall in therapeutic provision during the 2024-25 school year.
29. In response to my enquiries, the Council told me it was not aware it had not secured therapeutic provision in this case until Mrs X complained in February 2025. The Council contacted the commissioned provider (the NHS) which explained it had not realised an EHC Plan had been issued. Provision was then made (in the form of visits to Y’s school to carry out reviews) in March and April. The Council told me that, through investigating this complaint, it had identified opportunities to improve reporting and escalation processes and was committed to working with the NHS to implement these.

Therapeutic provision affecting others

30. In response to my enquiries, the Council explained the process it follows when it writes SALT or OT into a Plan to ensure it can secure the provision and meet its Section 42 duty:
• The Council’s SEND team checks whether the included provision meets the eligibility criteria for the NHS therapy service.
• The NHS Trust then undertakes the EHC needs assessment, determines the required therapy provision, and allocates resources so that provision can commence.
• The Council holds monthly contract monitoring meetings with the NHS Trust, during which it reviews compliance with statutory requirements. In addition, the commissioned therapy service provides the Council with regular reports on complaints.
• Where the required provision is outside the criteria for the NHS service, the Council’s SEND team notifies the commissioning team. That team makes a spot purchase of therapy hours from an approved provider list to secure the necessary support.
• If at any point the NHS is unable to deliver the agreed provision, it should escalate this to the Council which can address the matter through the formal contract monitoring arrangements.
31. The Council told me that it was working with partners across health, education, social care, early help, and the voluntary sector to implement an early identification and intervention strategy to meet the challenge caused by increasing demand for therapy provision. This approach aims to ensure that lower-level interventions are delivered by a range of professionals, enabling the specialist SALT service to focus its capacity on children and young people with the highest levels of need

Analysis

32. In its complaint responses the Council admitted it had not secured all the provision included in Y’s EHC Plan during the 2024/25 school year. This was fault, that caused Y the injustice of lost therapeutic provision. By way of remedy, the Council offered a symbolic payment of £500 at stage 2 of the complaint process. I consider there is outstanding injustice remaining and so have recommended a higher remedy.
33. The Council took four months to respond to Mrs X’s stage 1 complaint, three months longer than stated in the Council’s own complaints policy. This delay was fault, that put Mrs X to time and trouble in pursuing her complaint. However, the Council had acted on Mrs X’s complaint before writing to her, by arranging OT and SALT reviews for Y in March and April. This action reduced the injustice caused by the fault of the delayed complaint response.
34. The Council was also at fault in that its responses to Mrs X’s complaints offered no explanation for the delay in securing provision. This caused Mrs X uncertainty. The Council has now remedied this injustice by providing the explanation set out at paragraph 29.

Therapeutic provision affecting others

35. I am satisfied that the Council’s explanation of the reason for the delay in securing therapeutic provision in Y’s specific case (set out at paragraph 29) does not point to a systemic failing. I am also satisfied with the Council’s explanations about the way in which therapeutic provision is usually secured for children with EHC Plans, and the action it is currently taking to ensure this provision is targeted where it is most needed. And so, I have not made any service improvement recommendations.

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Action

36. Within one month of my final decision, the Council has agreed to make Mrs X a payment of £750, for Y’s benefit, in recognition of lost therapeutic provision. I recommend this payment having considered the Ombudsman’s guidance on remedies.
37. This payment is recommended instead of, not in addition to, the payment of £500 the Council has already offered.
38. The Council should provide us with evidence it has complied with the above action.

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Decision

39. I find fault causing injustice. The Council agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman