Summary: The Council failed to provide Speech and Language and Occupational Therapies along with specialist equipment for Mrs X’s child, Y. This should have been provided as it was set out in Y’s Education, Health and Care Plan. The Council has accepted fault, apologised and paid Mrs X a suitable financial remedy.

The complaint

1. Mrs X complained the Council failed to:
• Provide Y with the Occupational Therapy (OT) and Speech and Language Therapy (SALT) in their Education, Health and Care (EHC) Plan.
• Provide Y with the specialist equipment they should have received following a SEND tribunal.
• Delayed paying Mrs X back for the specialist equipment she paid for herself.
2. Mrs X said this has caused them distress, frustration and financial uncertainty.

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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. 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)
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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What I have and have not investigated

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. Mrs X complained the Council failed to implement the OT provision in Y’s EHC Plan from September 2023 but she did not complain to us about this until May 2025.
8. Mrs X’s complaint about events between September 2023 and April 2024 is now late, as Mrs X could have complained to us about these matters sooner and it was reasonable for her to do so.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. 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

Relevant law and guidance

11. 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. Section F sets out the special educational provision needed by the child or young person.
12. 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)  
13. 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.
14. Where the Tribunal has ordered the Council to amend the special educational provision specified in the EHC Plan, the Council must issue the amended EHC Plan within five weeks of the order being made.

Education Other Than at School (EOTAS)

15. For some children and young people, education in any setting would be inappropriate due to their special educational needs. This is referred to as EOTAS.
16. If the Council agrees it would be inappropriate for any required special educational provision to be delivered in a school, it can agree to arrange for it to be delivered somewhere else, for example at home. The Council must arrange and pay for that provision.

The Council’s complaints policy

17. The Council’s complaints policy says it will provide a response to stage one complaints within 10 working days and a response to stage two complaints within 20 working days.

What happened

18. Mrs X has a child, Y, with special educational needs, an EHC Plan and an EOTAS package in place. From May 2024 until the end of term, Y should have received two 30-minute sessions of OT.
19. Eight months prior to this, Mrs X had appealed the most recent Plan to the SEND tribunal. Following her appeal, in July 2024, the tribunal ordered the Council to amend the EHC Plan within five weeks.
20. The Council amended the Plan in August 2024 to include:
• 12 OT sessions for a duration of 60 minutes each time
• 19 SALT sessions for a duration of 30 minutes each time
• Specialist equipment for Y to use for school work
21. In October 2024, Mrs X raised a stage one complaint that the Council had not provided the specialist equipment it had agreed to. Mrs X also said the Council had not responded to her query about whether she can purchase the equipment and the Council reimburse her for this.
22. In November 2024, Mrs X purchased the equipment. The Council responded to the stage one complaint in February 2025. It apologised for the delay in providing Y with the equipment they needed and responding to her complaint. It agreed to reimburse Mrs X for equipment. It asked Mrs X to provide the invoice for this.
23. Mrs X remained dissatisfied with this and requested her complaint to be considered at stage two. The Council upheld this at stage two in March 2025.
24. The same month the Council said it received the invoice and reimbursed it.
25. In May 2025, Mrs X also complained to the Council that Y had not received the OT and SALT provision set out in paragraph 18 and 20. In June 2025, the Council upheld the complaint, apologised and offered a financial remedy.
26. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us.

Council’s response to our enquiries

27. The Council attributed the fault to a lack of training around implementing EOTAS packages and a lack of OT and SALT availability.
28. The Council has taken the following action to remedy the injustice caused by the fault:
• Reimbursed Mrs X £1,000 for the specialist equipment that she paid for;
• Added £2,730 to Y’s personal budget for the missed OT and SALT provision;
• Paid Mrs X £555 to recognise the distress, frustration and uncertainty caused.

My findings

Specialist provision

29. Y has an EHC Plan in place and the Council has a non-delegable duty to secure the special educational provision set out in the Plan. The Council failed to ensure Y received the two 30-minute OT sessions he was entitled to between May and July 2024 which was fault.
30. Then following the tribunal order in July 2024, the Council should have ensured that the OT, SALT and specialist equipment listed in paragraph 20 was in place for the start of the next school year in September 2024. The Council did not do this which was fault. As a result, Y missed out on a school year of OT and SALT provision. It also meant Y went two months without the specialist equipment they required.
31. The Council accepted it was at fault and has issued a remedy which I am satisfied is sufficient to remedy the injustice this caused to Y and Mrs X.
32. We found fault with the Council on similar cases in relation to special educational provision. Following these cases, the Council agreed to review its process for securing SALT and OT to ensure there is a system in place to secure provision and funding without delay. It also agreed to work with its partners in the OT service to analyse why it was unable to deliver the provision in EHC Plans and address any problems identified. Therefore, a further service improvement is not required.

Complaint handling

33. Mrs X raised a stage one complaint in late October 2024. The Council should have provided a response within 10 working days and by early November 2024 at the latest. The Council did not provide a response until February 2025 which was a delay of three months and was fault. This resulted in a missed opportunity to reimburse Mrs X for the specialist equipment sooner. This caused Mrs X distress, frustration and uncertainty.
34. The Council accepted it was at fault and has issued a remedy which I am satisfied is sufficient to remedy the injustice this caused to Ms X.

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Decision

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

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Investigator's decision on behalf of the Ombudsman