Summary: The Council failed to secure the occupational therapy and speech and language therapy set out in the Education, Health and Care Plan of Ms X’s child, Y, for two terms. It also did not keep Ms X updated about its attempts to secure the provision. This caused Ms X and Y distress and uncertainty and meant Y did not have the support they needed for two terms. The Council has agreed to apologise and make a payment to Ms X.

The complaint

1. Ms X complained the Council failed to secure the occupational therapy (OT) and speech and language therapy (SaLT) set out in her child, Y’s, Education, Health and Care (EHC) Plan. Ms X said the Council failed to act on a tribunal order and its annual review of Y’s EHC Plan was flawed. Ms X said the Council apologised to her but did not make any plans for the provision Y had missed.
2. Ms X said this affected Y’s language development, communication skills and access to education. Ms X said it caused her anxiety, emotional distress and frustration. Ms X wants the Council to recognise the impact on Y and secure provision for the missed OT and SaLT sessions. Ms X also wants the Council to apologise and pay compensation for the impact on Y and the distress caused.

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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. 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).
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. 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).
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. Ms X complained the Council’s annual review in March 2025 was flawed because it completed this before it had secured the provision for Y. Ms X said this meant the Council could not get any input from the providers about Y’s progress in time for the annual review. Ms X had the right to appeal the outcome of the annual review and the provision specified in Y’s EHC Plan to the Tribunal. Ms X was aware of her right of appeal to the Tribunal, and I consider it was reasonable for her to have used this right. I have not investigated this part of Ms X’s complaint.

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How I considered this complaint

9. I considered evidence provided by Ms X and the Council, as well as relevant law, policy and guidance.
10. Ms X and the Council have had an opportunity to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

The Law

Education, Health and Care (EHC) Plans

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. 
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. 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. 

What happened

14. Y had an EHC Plan which the Council issued in April 2023. Following an order from the Tribunal the Council issued an amended version of Y’s final EHC Plan in mid-November 2024. The provision set out in the EHC Plan included a SaLT programme designed by a speech and language therapist and activities provided by an OT.
15. The Council contacted several OT and SaLT providers and secured the provision in early December 2024. Ms X raised concerns about the speech and language therapist, and the provider withdrew its offer a few weeks later.
16. Ms X complained to the Council in December 2024 about it failing to secure the OT and SaLT provisions set out in Y’s EHC Plan. The Council responded saying it had found it difficult to find an occupational therapist with the right certification. It confirmed the SaLT provider had withdrawn its offer and said the Council would continue trying to secure the provision. It apologised to Ms X for the delays in securing the provisions for Y.
17. Ms X then escalated her complaint to stage two of the Council’s complaint process. The Council responded accepting that, although the Council had made efforts to secure the provision in Y’s EHC Plan, it had not done so. It said this was because it had difficulty finding suitably qualified therapists. It also said it did not speak with providers within the five-week period between the tribunal’s order and the Council issuing Y’s final EHC Plan, which caused delays in the Council securing the provision. The Council also accepted it did not keep Ms X updated with its efforts to secure provision and said this was due to low staffing levels.
18. Ms X escalated her complaint to stage three in March 2025. The Council reiterated it had failed to secure the provision in Y’s EHC Plan and had not kept Ms X updated about its progress.
19. The Council carried out an annual review of Y’s EHC Plan in March 2025 and increased Y’s OT provision. The Council secured the SaLT and OT provision in May 2025.
20. Ms X remained unhappy and complained to the Ombudsman in June 2025. In response to our enquiries, the Council accepted it failed to secure the OT and SaLT provisions set out in Y’s EHC Plan. It also accepted it did not contact providers in the five weeks between the order and the Council issuing Y’s final EHC Plan.
21. The Council told the Ombudsman it had apologised to Ms X for failing to secure OT and SaLT provisions for Y and offered to pay her £400. It said it made this offer with the expectation the provisions would start in January 2025. It accepted it had since delayed securing the provisions for a further term and so offered an extra payment of £400 to Ms X, totalling £800.

My findings

22. The Council has accepted it failed to secure the OT and SaLT provisions set out in Y’s EHC Plan. This was fault. It meant Y did not receive the provision within their EHC Plan for two terms between October 2024 and May 2025. It also caused Ms X distress as her child was not receiving the support they needed.
23. The Council has also accepted it did not keep Ms X updated about its efforts to secure Y’s provision. This was fault. It caused Ms X uncertainty as she did not know what the Council was doing to secure the provision or when it might be in place.
24. Our guidance on remedies recommends symbolic payments of £900 to £2400 per term for missed educational provision, and lower than this for injustice caused by other faults, such as missing OT and SaLT. The proposed payment of £800 is in line with our guidance. It reflects that although the Council had not secured the provision, Y continued going to school and receiving an education.
25. The Council has had an action plan in place from September 2025 to improve its SEND service. This included recruiting SEND staff, improving its consultation with schools and using a new case management system. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Action

26. Within one month of the final decision, the Council has agreed to:
1. Apologise to Ms X for the impact of not securing Y’s OT and SaLT provisions between October 2024 and May 2025. It should also apologise to Ms X for the distress and uncertainty it caused her by not keeping her updated with its efforts to secure provision. 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 I have recommended.
2. Pay Ms X £800 for the impact of failing to secure the SaLT and OT provisions in Y’s EHC Plan between October 2024 and May 2025. This is £400 a term for the two terms of missed provision. It is in line with our guidance on remedies.
27. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman