Summary: The Council failed to provide the occupational therapy and speech and language therapy set out in Y’s Education, Health and Care Plan for eight months. This caused Ms X and Y distress and uncertainty and meant Y did not have the required support for two terms. The Council has agreed to apologise, make a payment to Ms X and create an action plan to ensure it can secure speech and language therapy and occupational therapy provision for future Education, Health and Care Plans and address the shortage of therapists.

The complaint

1. Ms X complained the Council failed to provide the occupational therapy (OT) and speech and language therapy (SaLT) set out in Y’s Education, Health and Care (EHC) Plan. Ms X said this meant Y could not cope with their anxiety and obsessive-compulsive disorder (OCD). Ms X wants the Council to provide the OT and SaLT immediately and pay for the two terms of support Y missed.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended).
4. 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).
5. 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

6. I considered evidence provided by Ms X and the Council, as well as relevant law, policy and guidance.
7. Ms X and the Council have 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

The Law

Education, Health and Care (EHC) Plans

8. 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. 
9. 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).
10. 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. 

Background

11. Y had an EHC Plan. The SEN provision in Y’s EHC Plan included:
• a language development programme as part of Y’s educational package to be devised by a speech and language therapist. This included staff working with Y to support them to repair any breakdowns in communication.
• an occupational therapy programme as part of Y’s educational package to be devised by an occupational therapist that included annual reviews to determine progress and updating of goals. This also included access to arts and crafts, engaging in written tasks and activities relating to health and fitness.
12. The Council said it requested SaLT and OT assessments to be completed in January 2023 in preparation for Y’s transition from post-19 education to an Education Otherwise Than at School (EOTAS) package in September 2023. The results of the assessments were that the Council recommended 12 hours OT provision per year and 12 hours SaLT provision per year.
13. Ms X previously complained to the Ombudsman about the Council in November 2023. We found the Council was at fault for failing to secure the therapy provision in Y’s EHC Plan for the first term of the 2023/24 academic year. We also found the Council was at fault for some of its communication with Ms X and a delay in responding to Y’s emergency review. We found that the fault caused injustice to Ms X. Following our investigation, the Council said it would review its arrangements to ensure it could meet the timescales for needs assessments and provision of SaLT and OT, once an EHC Plan was finalised for Y.

What happened

14. The Council held an annual review of Y’s EHC Plan in September 2024. During the annual review meeting, Ms X said she was concerned about the number of OT and SaLT hours that were being used for indirect and administrative tasks, rather than working directly with Y. The Council said Ms X said she would look for alternative providers but that the current providers could continue in the meantime.
15. In October 2024, the Council told the therapy provider about Ms X’s concerns. The provider responded that it used both universal and targeted approaches to achieve the desired outcomes.
16. In November 2024, the therapy provider said it was withdrawing provision for Y as it did not have Ms X’s consent to use its model of delivering therapy. In December 2024, the Council asked the provider to reconsider its decision to withdraw provision, but it said it could not continue the interventions without Ms X’s consent.
17. At the end of January 2025, the Council told Ms X it had contacted all its quality-assured OT and SaLT providers, but only one was available to deliver the provision to Y.
18. Ms X complained to the Council in February 2025. She said the Council had failed to deliver the SaLT and OT provision set out in Y’s EHC Plan. Ms X said the Council was failing to secure the provision in Y’s EHC Plan.
19. The Council responded to Ms X’s complaint in March 2025. It said that although it had worked to secure a provider since the previous provider withdrew provision in November 2024, it had not delivered any SaLT or OT provision so far that academic year. It therefore upheld her complaint. The Council said it had spoken with potential providers and health colleagues to try and resolve the matter and deliver all the recommend hours of provision to Y before the end of the academic year. The Council said it had found providers who had capacity and it was speaking with health colleagues to approve the costs.
20. At the end of March 2025, Ms X told the Council she wanted to escalate the complaint to stage two, as nearly ten days had passed since the stage one response and Y’s therapy provision had not yet started. Ms X also complained about the Council’s poor communication.
21. At the beginning of May 2025, the Council responded to Ms X’s stage 2 complaint and confirmed it had secured SaLT and OT providers but it was still working with health colleagues to approve the costs to provide the full provision for the academic year. The Council said both providers had confirmed in April 2025 that they still had capacity to deliver the provision. The Council apologised for not communicating with Ms X between the stage one and stage two complaint responses and said it would provide her with weekly updates from the beginning of May 2025.
22. The Council said Y’s EHC Plan was due to end on 31 March 2025, but it would fund the education package until 31 July 2025. Ms X told the Ombudsman the Council did provide both therapies for the last month of Y’s EHC Plan. The sessions took place between July and August 2025.

My findings

23. The provision in Y’s EHC Plan was to secure12 hours of SaLT and 12 hours of OT provision a year following Y’s transition to an EOTAS setting in September 2023.
24. While the Council worked to find suitable SaLT and OT providers, it has accepted it did not secure this until May 2025. This was fault and left Y without the required provision between September 2024 and May 2025. It also caused Ms X frustration and uncertainty as to when the Council would secure the provision for Y.
25. In March 2024 the Council agreed to review its arrangements for commissioning Y’s SaLT and OT. It is clear this did not address the issue. I have made a service improvement recommendation to ensure the Council updates us with its progress in this area.

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Action

26. Within one month of the final decision, the Council has agreed to:
1. Apologise to Ms X for failing to secure the provision set out in Y’s EHC Plan between September 2024 and May 2025 and for not providing her with updates or communications between the stage one and stage two complaint responses. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
2. Pay Ms X £600 for failing to secure the SaLT and OT provision in Y’s EHC Plan between September 2024 and May 2025. This is £300 a term for the two terms of missed provision. It is in line with our guidance on remedies and reflects that Y is outside of compulsory school age.
27. Within three months of the final decision, the Council has agreed to create an action plan to ensure it can secure the SaLT and OT provision in EHC Plans where relevant and for how it will address the shortage of therapists named in future EHC Plans. The Council has said the action plan will include discussions about improved and clearer referral processes and it will also review the service delivery model.
28. The Council should provide us with evidence it has complied with the above actions.

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Decision

29. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman