Summary: Mr X complains on behalf of his son Y that the Council failed to provide the salt and language therapy provision in Y’s Education Health and Care Plan for several years impacting on Y’s progress with communication and education and causing stress to Mr X. We found fault by the Council as it did not make the salt and language therapy provision between September 2024 to March 2025, 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 on behalf of his son Y that there were failings in the way the Council has provided the Speech and Language Therapy (SALT) provision, both direct and indirect, in Y’s Education Health and Care Plan (EHC Plan) since 2023. Mr X says the Council failed to adapt the approach to make the provision accessible to Y. Mr X says this has had a detrimental impact onto Y’s progress with communication and education and placed an unreasonable burden onto Mr X.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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.
4. While the Local Government Act 1974 sets out what we can investigate it also explains what we may not consider.
5. 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)
6. 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)
7. 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.
8. 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 s34H(1), as amended)
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 investigated Mr X’s concerns from the date of the annual review of Y’s EHC Plan in February 2024 to April 2025 when the Council held an annual review of Y’s EHC Plan.
11. I have not investigated Mr X’s concerns about a lack of SALT provision before February 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.

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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 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 the EHC Plan

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 cease to maintain 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. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
19. 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.
20. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

What happened in this case

21. What follows is a brief chronology of key events. It does not include all the information I reviewed during my investigation. I have included events from 2023 for context only.
22. Y has an EHC Plan and receives Education Other Than at School (EOTAS). The EHC Plan in place in 2023 specified SALT provision for Y including direct therapy input from a qualified SAL therapist four times a term for an hour. It also included a SAL therapist providing guidance, advice and resources to support Y’s tutor and adults involved with him, liaison with any other professionals at least every half a term and a reassessment of Y’s needs for the annual review each year. Staff working with Y were to deliver the communication programme as instructed by the SAL therapist embedded in daily activities across the week.
23. The SAL therapist set up the termly session during 2023. Y did not attend the five sessions arranged for January to March 2023 due to being unwell or refusing to attend. The SAL therapist had to contact Y’s tutor to find out why Y had not attended. Y attended four sessions between May and September 2023.
24. Y did not attend a session in October 2023 with no reason given as neither Mr X nor Y’s tutor contacted the SAL therapist. Y did not attend a session in November 2023 or session later that month where Y was due to meet a new SAL therapist.
25. In December 2023 the SAL therapist sent Mr X and Y’s tutor a list of the SALT sessions for January to March 2024. Y attended a session in December 2023 which included a handover to the new SAL therapist.
26. The Council held a review meeting in December 2023 with the SAL therapist, Mr X, Y’s tutor and an expert tutor commissioned by the Council to provide support to Y and Mr X. The meeting acknowledged Y had made good progress with his engagement over the year. It was agreed the SAL therapist would draft targets for consideration at Y’s annual review due in February 2024.
27. Y did not attend the first SALT session arranged for January 2024. The SAL therapist contacted Y’s tutor who advised Y was not yet out of bed. In commenting on the draft decision Mr X says this was due to Y facing some mental health challenges at that time.
28. The SAL therapist prepared a summary of SALT for Y during 2023 for the annual review. It reported Y was not attending many direct therapy sessions. But SALT were providing support to the tutors working with him as required by the EHC plan via the telephone or emails. Y’s tutor submitted a report for the annual review which said there had been lots of SALT support.
29. The Council held the annual review of Y’s EHC Plan in February 2024. It identified the SALT provision needed to be indirect through the adults working with Y. And Y would continue to receive four SALT sessions each term.
30. The SAL therapist emailed Y’s tutor in February 2024 about the direct therapy session times due to Y’s poor attendance. Y did not attend a session in March 2024. The SAL therapist contacted Y’s tutor who advised Y had not got out of bed.
31. The Council issued a final amended EHC Plan on 7 March 2024 following the annual review. The Council advised Mr X of his right of appeal to the SEND Tribunal if he did not agree with EHC Plan.
32. The SAL therapist cancelled the next SALT session in March 2024 due to being unwell. But sent the next term’s session dates to Y’s tutor and copied Mr X into the email.
33. Mr X appealed to the SEND Tribunal on 22 April 2024 on the basis the EHC Plan did not reflect Y’s needs or the provision required to meet those needs.
34. The SAL therapist contacted Y’s tutor in April 2024 about Y’s sessions and lack of attendance. The SAL therapist copied Mr X into the emails. The tutor responded Mr X did not feel it was the right time for SALT as there was a need for a greater focus in other areas and Y was refusing to attend. The SAL therapist sent the tutor and Mr X an email in May 2024 seeking confirmation there would be no more SALT session that term in response to the tutor’s email. The SAL therapist cancelled the session for May 2024. The SAL therapist sent a further email later in May 2024 asking for confirmation about the SALT sessions as it was not clear if the sessions should be cancelled. The Council says it did not receive a response from Mr X or the tutor.
35. Y did not attend the session booked for May 2024. The SAL therapist sent an email to Mr X and the tutor advising they were still planning SALT sessions and gave dates but needed Mr X to confirm what he and Y wanted to do about SALT. Y did not attend sessions booked for June and July 2024 with no contact or reasons given by Mr X or the tutor. The SAL therapist sent a further email to Mr X and the tutor to confirm whether the SALT sessions should be cancelled. The Council says it did not receive a response to any of the emails.
36. The SAL therapist contacted the Council in July 2024 being the end of the school year to advise they had not seen Y since December 2023 when he attended a handover session. The therapist reported Y had either not been up or refused to leave home to come to sessions. And Y’s tutor said several times Mr X did not consider SALT a current focus for Y. The therapist said they had emailed Mr X for confirmation of this and plan a break from SALT but received no reply.
37. The SAL therapist contacted the expert tutor in February 2025 as they had not received a response from either Mr X or the tutor about implementing the SALT sessions for Y and the EHC Plan was due for an annual review. The SAL therapist received a response from the expert tutor saying Y was ‘thriving right now’. The expert tutor did not make any reference to lack of SALT sessions or raise concerns about it.
38. Y’s annual review was due on 7 February 2025 but was rescheduled to 10 April 2025 as the SEND Tribunal hearing for Mr X’s appeal from April 2024 took place during March 2025.
39. The Council says as part of the appeal process in March 2025 it attempted to work with Mr X to change some of Y’s SALT provision. But Mr X refused to agree to any changes to SALT, and it was not pursued through the appeal proceedings. The Council however addressed the issue two weeks later in the annual review. The Council comments that Mr X did not use the Tribunal to improve provision in section F to enable Y to access SALT. And Mr X did not raise concerns at the hearing he believed the SALT provision was not in place.
40. The Council carried out the annual review in April 2025 and suggested changing the SALT provision to indirect therapy. The SAL therapist was unable to provide a report to the annual review as Y had not attended any sessions during 2024. But the SAL therapist attended the annual review meeting so any barriers to accessing future provision could be discussed. The Council agreed for SALT to carry out an assessment on Y to inform the draft amended plan and ensure section B and section F was updated and accurate.
41. Mr X complained to the Council in April 2025 it had failed to put the SALT provision in place for several years and it had not provided a SALT report for the annual review in April 2025. Mr X did not consider Y’s difficulties in engaging with sessions a valid reason for the lack of direct provision. And he raised concerns the lack of regular oversight by the SAL therapist meant other indirect provision would have been compromised such as advice to the tutors. Mr X wanted the Council to apologise to him and Y, make a payment for damage caused to Y’s education, carry out a reassessment of Y’s SALT needs and to catch up on missed provision. Mr X also requested the Council made him a payment for the stress caused. Mr X submitted a complaint to us on the same date.
42. The Council tried to arrange a SALT assessment as agreed but received no response from Mr X and Y’s tutor. The Council chased for a response and was able to carry out the assessment in June 2025. The Council issued a final amended EHC Plan in June 2025. Mr X appealed to the SEND Tribunal as he did not agree with the EHC Plan and SEN provision.

My assessment

43. The Council says Mr X could have included any concerns about the SALT provision when he appealed to the SEND Tribunal in April 2024 as it issued a final amended EHC Plan in March 2024. Section 42 of Children and Families Act 2014 requires councils to secure the special educational provision in Section F of the EHC Plan. Councils must also secure social care provision in Section H1 of the EHC Plan. However, Mr X’s appeal focused on the social care aspect in the EHC Plan and did not refer to the SALT. So, the Council’s provision of SALT was not dependent on the appeal, and the Tribunal did not change the SALT provision element. Therefore, while Mr X exercised his right of appeal in April 2024 there is no evidence he was challenging the SALT provision at that time. Because of this it is open to us to investigate Mr X’s concerns about SALT provision during 2024. These were about the way the Council chose to arrange and deliver it which is a matter we can consider.
44. The documents provided show the Council arranged the direct provision for sessions with Y from February 2024 and advised Mr X and Y’s tutors of the dates. The SAL therapist raised concerns with the tutor when Y did not attend. The tutor responded Mr X felt it was not the right time for Y to have SALT due to the greater need to focus on other areas. The SAL therapist contacted Mr X for confirmation whether the SALT sessions would continue but received no response. The SAL therapist continued to book and offer the SALT sessions until July 2024, the end of the school year.
45. I am satisfied from the evidence provided the Council carried out its duty to arrange the direct SALT provision, but Y did not engage. So, there is no fault by the Council up to July 2024 in arranging the direct SALT provision. Y’s tutors had also previously reported they received support from the SALT service as required and the SAL therapist wrote a SALT report for the 2024 annual review. There is therefore no evidence of fault by the Council between February 2024 to July 2024 (the end of the academic year) as it ensured the SALT provision was available to Y as required in the EHC Plan. And there is no evidence Mr X or Y’s tutors raised any concerns about Y not being able to engage in the sessions.
46. However, from September 2024, (the start of the new academic year) until February 2025 when the SAL therapist contacted Y’s expert tutor there is no evidence to show the Council contacted Mr X or Y’s tutors to confirm the situation again or to try to arrange further SALT sessions. This failure was fault by the Council as it has a legal duty to arrange the educational provision in section F (despite the lack of contact from Mr X or Y’s tutor). But, given the lack of engagement by Y and the family between May 2024 and February 2025 I consider on the balance of probabilities that even if the Council had continued to arrange the provision Y would not have engaged given the non-attendance of the past sessions. In addition, Mr X had stated that SALT was not a priority for Y. Because of this I consider there is limited injustice caused to Mr X and Y from the lack of provision from September 2024 to April 2025.
47. Mr X complains there was no regular oversight by the SALT service as required as indirect provision and the SAL therapist did not provide a report for the annual review in April 2025. There is no evidence of any SALT oversight by the Council from September 2024 to April 2025 other than the SAL therapist email in February 2025 and the SALT service were unable to provide a report to the annual review as Y had not attended the sessions.
48. The lack of oversight and provision of a SALT report is fault. Although the requirement to produce a report was not met, the reasons were due to lack of engagement so I consider any report would have limited value. This was also mitigated by the SAL therapist attending the annual review and the agreement to complete a further SALT assessment. So, while there is fault by the Council, I do not consider this has caused a significant injustice to Mr X and Y.
49. This is because the evidence provided shows the tutors previously confirmed they received lots of support from SALT. So, I am satisfied they were aware of how to contact the SALT service for this provision. There is no evidence the tutors contacted the SALT service and did not respond to contact from April 2024 until the SAL therapist contacted the expert tutor in February 2025. The expert tutor responded Y was thriving and the response did not include any concerns about missed SALT provision.

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Decision

50. I find fault not causing injustice, so I am completing my investigation.

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Investigator's decision on behalf of the Ombudsman