Summary: Mr X complained the Council failed to provide speech and language therapy for his child, Y, between May 2024 and April 2025. We have discontinued our investigation into Mr X’s complaint. The matters in his complaint were part of his appeal to the Special Educational Needs and Disabilities (SEND) Tribunal or are too closely linked to the appeal.

The complaint

1. Mr X’s child, Y has special educational needs (SEN). The Council maintains an Education, Health and Care Plan (EHC Plan) for Y which sets out the support they must receive to meet their educational needs. Mr X complained the Council failed to:
• provide Speech and Language Therapy (SLT) to Y, between May 2024 and April 2025, as set out in their EHC Plan;
• provide a remedy for the missed SLT provision; and
• provided misleading information to the Tribunal.
2. Mr X said the Council’s failure prevented Y’s educational development and affected their emotional well-being. It also caused him distress, frustration, uncertainty, time and trouble.
3. Mr X wanted the Council to provide:
• a financial and/or catch-up package for Y;
• an apology and acknowledgment it misled the Tribunal; and
• a robust action plan for the future, to include, monitoring of Y’s EHC Plan, procedures for missed provision and communications with families.

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The Ombudsman’s role and powers

4. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. 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)
8. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments. 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). 

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How I considered this complaint

9. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
11. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

EHC Plans

12. An Education, Health and Care (EHC) Plan is a legal document which sets out a description of a child's special educational needs (SEN). It says what needs to be done to meet those needs by education, health and social care.
13. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement. 

14. 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) 
15. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan or amendment to these elements of an EHC Plan.
16. Once the council issues the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the Plan. The local health care provider will have the duty to deliver the health care provision.

What happened

17. The Council maintains an EHC Plan for Y. Section F of Y’s Plan details the SEN provision required to meet their needs, this includes speech and language therapy (SLT).
18. The Council issued an amended EHC Plan in May 2024 following an annual review, Mr X lodged an appeal to the SEND Tribunal in June 2024 against sections, B, F and I of Y’s EHC Plan. This related to:
• the suitability of the named school in Section I;
• the Council’s failure to include recent, relevant professional advice;
• the ability of sections B and F to adequately meet Y’s cognitive and learning needs; and
• Y’s need for continued regular sessions with a speech and language therapist.
19. Prior to the hearing in February 2025, the Council accepted the requested changes to section I and named the specialist provision preferred by Mr X for Y.
20. In early February 2025 the SEND Tribunal issued its decision. It said that it had to focus on Y’s present needs and the information available to it, this included speech and language reports. It recognised there had been ‘gaps in provision’ and Y’s SEN had ‘not been addressed to date’.
21. The Tribunal directed that ‘it was important that oversight and co-ordination of Y’s speech and language was done so by a qualified Speech and Language (SaL) Therapist’. Further, six-monthly reviews by a SaL Therapist were necessary to ensure Y’s progress was monitored and activities tailored to meet their needs.
22. After receiving the Tribunal decision, Mr X complained to the Council, he said:
• the Council had failed to commission the necessary SLT and reviews for Y,
• the Council had told the Tribunal there was to be a speech and language assessment for Y in March that neither he nor Y’s school were aware of, and
• the Council had a duty to secure provision included in section F of Y’s EHC Plan and how did it plan to compensate for the lost SLT provision and intend to monitor this going forward.
23. In its response the Council upheld Mr X’s complaint and said:
• Y received six recommended SLT sessions by the National Health Service (NHS), between May 2023 and May 2024 and recognised no further reviews had been completed due to capacity issues;
• the information provided to the Tribunal was accurate at the time, but the review had needed to be rescheduled for April 2025; and
• Y’s new school had now been allocated a therapist which would ensure ongoing support as required.
24. Mr X remained unhappy with the Council’s responses and asked the Ombudsman to investigate the matter. He said he had ongoing concerns, that despite a marked improvement in Y’s education in their new school, sessions had already been missed, and he was worried at Y’s next EHC Plan review the Council would look to remove Y’s SLT provision.

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Analysis

25. We have no discretion to investigate any issues which were part of an appeal. The courts have found we cannot investigate any matter closely linked to the matters under appeal.
26. The SLT provision included in Y’s EHC Plan, within section F, was the subject of the SEND Tribunal’s considerations, as was the missed provision, which occurred after the date the right of appeal was engaged.
27. The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699 (‘Tribunal Procedure Rules’) give the Tribunal extensive case management powers. While the Tribunal recognised Y’s SEN provision had not met need, it did not make any recommendation to remedy this, instead it made decisions relating to appropriately tailored activities and regular reviews for Y going forward. I cannot investigate the delivery of the SLT package as it is too closely linked to the issues looked at during the appeal.
28. Mr X could have raised his concerns about the Council providing misleading information to the Tribunal, which was the appropriate mechanism to consider the matter. I therefore cannot investigate that element of Mr X’s complaint.
29. I understand Mr X’s concerns regarding Y’s SLT provision after the Tribunal, however these matters would be subject of a new complaint.

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Decision

30. I have ended my investigation into Mr X’s complaint. This is because I cannot investigate matters which were part of, connected to, or could have been part of, of an appeal to the SEND Tribunal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman