Summary: The Council failed to secure two terms of Speech and Language Therapy and half a term of Occupational Therapy for Mrs X’s child, Y. The Council did secure Y’s swimming lessons and was not at fault. The Council has agreed to apologise and make a payment to remedy injustice caused to Mrs X and Y.

The complaint

1. Mrs X complained the Council failed to secure the Speech and Language Therapy (SaLT) and Occupational Therapy (OT) in her child, Y’s, Education Health and Care Plans since September 2022. Mrs X also complained about other matters relating to Y’s education, including the Council’s complaints handling.
2. Mrs X says this meant Y missed out on provision they were entitled to, which affected their wellbeing and development. Mrs X said she has had to go to significant effort to ensure Y was properly treated.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. 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)

Back to top

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 has raised several complaints about Y’s education with the Council since 2022. In December 2022 and November 2023 the Council directed Mrs X to the Ombudsman but Mrs X did not complain to the Ombudsman until June 2025.
8. Part of Mrs X’s complaint is late because it concerns council actions that happened more than 12 months before she complained to us. I have not investigated events before June 2024, including the Council’s handling of Mrs X’s complaints. It was open to Mrs X to complain to us sooner about events before that date and I consider it was reasonable for her to have done so.

Back to top

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 have had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

The law

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.

Background

14. Mrs X’s child Y had an Education, Health and Care (EHC) Plan. The Council amended the EHC Plan in July 2023. The plan included:
• 18 hours of direct Speech and Language Therapy (SaLT) per academic year
• 45 minutes a term of liaison between the school and Y’s Speech and Language Therapist
• 18 hours of direct Occupational Therapy (OT) per academic year.
• Swimming sessions in line with the school’s curriculum.
• 6 x 45mins of hands on intervention per year.
15. Mrs X disagreed with the EHC Plan and following a period of mediation appealed to the SEN Tribunal. Prior to the events investigated Mrs X repeatedly raised concerns with the Council over delivery of Y’s SaLT and OT provision.

What happened

16. In June 2024 Mrs X told the Council Y was still not receiving the SaLT and OT provision specified in their EHC Plan. She said Y was also not accessing swimming lessons. She said Y’s school had received money for provision Y had not received and asked the Council to pay her the money to commission the services instead. The Council spoke to Y’s school that said swimming was offered on a rotational basis and Y was not in this term’s rotation.
17. During the summer holidays the Council enquired with several SaLT and OT providers over delivering Y’s provision in the 2024/25 academic year. During this time, it liaised with Mrs X over her preferences for tutors.
18. In early September 2024 the Council accepted a quote from an OT provider. In October 2024 the Council told Mrs X it accepted Y had not received all of their SaLT and OT provision before the summer and said it was willing to fund a personal budget to cover the provision. It said it would make a payment to Mrs X for missed SaLT and OT provision not delivered in the 23/24 academic year. The Council continued to try and source a SaLT provider and asked Mrs X for any preferences. Mrs X asked the Council to provide a list of providers it had approached.
19. In late October 2024 the SEN Tribunal issued its decision and ordered the Council to amend aspects of Y’s EHC Plan. Around the same time the Council told Mrs X it was struggling to source a SaLT provider and asked Mrs X to confirm she was happy with the OT provider. Mrs X said she was still waiting for the Council to provide a list of SaLT providers. Shortly after, a SaLT provider confirmed it could deliver Y’s sessions, and Mrs X confirmed her agreement with the choice of OT provider.
20. At the end of October 2024, the Council chased the SaLT provider for a start date. The OT provider sent Mrs X a list of Y’s proposed sessions. Mrs X queried why there were 14 sessions and not 18. The provider said this was due to it starting provision halfway through the first term of the academic year.
21. The Council continued to chase the SaLT provider and met with Mrs X in November 2024. In the meeting the Council confirmed it could fund Y’s missed provision through a personal budget. The Council’s record of the meeting says Mrs X refused this. The Council said it would continue to try and commission Y’s SaLT. The Council sent Mrs X a record of what it discussed in the meeting. Mrs X said she was unhappy the Council had not looked at her complaints independently and the personal budget would not cover the provision in Y’s EHC Plan.
22. The Council issued an amended EHC Plan including the changes ordered by the Tribunal on 18 November 2024. It included:
• 18 hours of direct Speech and Language Therapy (SaLT) per academic year
• 45 minutes a term of liaison between the school and Y’s Speech and Language Therapist
• 12 hours of targeted OT and 4 hours of OT input per year.
23. In late November 2024 the Council asked the OT provider for dates to make up Y’s three missed sessions for the 2024/25 academic year. The OT provider sent through proposed dates. In early December 2024 Mrs X said Y was still without SaLT and had not received their missed OT sessions. She repeated the Council’s proposed personal budget did not cover Y’s provision.
24. The Council emailed Mrs X in December 2024. It said it had dates for eight missed OT sessions but only sent seven. It said it had confirmed a SaLT provider who would start in the new year. Mrs X replied saying the Council had not included all the OT dates. Mrs X and the Council exchanged further emails and Mrs X agreed to five dates of OT provision as part of making up Y’s missed provision.
25. In January 2025 the Council confirmed Y’s SaLT would start in February 2025. At the end of January 2025, the OT provider reported Y had missed a session due to absence from school. The Council checked with Y’s school who confirmed Y had not returned to school since Christmas. In mid-February the OT provider said Y had missed all their sessions so far that term. The Council said it should keep trying to deliver the sessions.
26. The Council continued to chase a start date for Y’s SaLT. In response to our enquiries, it said Y’s OT and SaLT were both in place from April 2025. Mrs X remained unhappy with the Council’s actions and complained to the Ombudsman in June 2025.

My findings

27. The Council was under a duty to secure the provision in Y’s EHC Plan. The duty is non-delegable. The courts have found this is an absolute duty and it is not enough for a council to say it made best endeavours to secure provision.
28. I have investigated events from June 2024. The Council accepts it failed to secure Y’s SaLT and OT during the 2023/24 academic year. The Council was at fault for failing to secure the SaLT and OT provision in Y’s EHC Plan between June and July 2024. It apologised and offered to make a payment to Mrs X for this provision. I am satisfied with the Council’s actions.
29. The Council remained under a duty to secure the provision in Y’s EHC Plan when Y returned to school in September 2024. Over the summer holidays it made every effort to secure providers for Y’s SaLT and OT but provision was not secured when Y returned to school.
30. The Council secured Y’s OT by October 2024 and SaLT by April 2025. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. The delay in securing Y’s SaLT and OT is fault (service failure). This caused Y to miss half a term of OT and two terms of SaLT, and caused Mrs X frustration, distress and uncertainty.
31. Our guidance on remedies recommends symbolic payments for missed SEN provision, such as SaLT and OT. I have recommended a symbolic payment which reflects that although the Council had not secured the provision, Y continued going to school and receiving an education.
32. Mrs X also complained the Council failed to provide swimming lessons for Y. Y’s EHC Plans specified swimming in line with the school’s curriculum. When Mrs X raised concerns, the Council checked with the school that confirmed it rotated swimming groups. I am satisfied the Council secured the provision and responded to Mrs X’s concerns. The Council was not at fault.
33. Following a previous investigation, the Council explained the steps it is taking to resolve the issues it has faced commissioning SaLT and OT. 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.

Back to top

Action

34. Within one month of the final decision the Council has agreed to:
1. Apologise to Mrs X for failing to secure the SaLT and OT provision in Y’s EHC Plan and the frustration, distress and uncertainty caused to Mrs X. 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 Mrs X £500 to recognise the impact of Y missing two terms of SaLT and half a term of OT.
35. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman