Summary: Mrs X complained the Council failed to deliver special education set out in her son’s Education, Health and Care Plan. We found fault because the Council failed to deliver provision to him during the academic year 2024-25. This caused Mrs X avoidable distress and meant her son missed out on education he should have received. To remedy the injustice caused, the Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complains the Council did not provide her son, Y, with specialist services set out in his Education, Health and Care (EHC) Plan.
2. Mrs X says this caused her avoidable distress, frustration and uncertainty. She says it also meant Y missed out on education he should have received.

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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. My investigation will start in September 2024 when the new school year began, this is 12 months before the complaint was brought to us.
7. My investigation will end when the Council issued its stage two response to Mrs X’s complaint, in August 2025.
8. Mrs X appealed to the Special Educational Needs and Disability Tribunal (the Tribunal) about the Council’s failure to deliver Y’s provision. The Tribunal can consider the contents of an EHC Plan but will not consider the delivery of the provision specified within it. I am therefore able to investigate the delivery of provision in Y’s EHC Plan.

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How I considered this complaint

9. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
10. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

11. A child with special educational needs (SEN) may have an EHC Plan. This 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 EHC Plan is set out in sections which include Section F, which is the special educational provision needed by the child or the young person. 
13. 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)  

What happened

14. I have set out below a summary of the key events. This is not meant to show everything that happened.

Background and context

15. Y has SEN and various diagnoses. Y had an EHC Plan in place before the period of my investigation. Y had not attended formal education in a school setting for some time.
16. Instead, Y’s EHC Plan specified that he should receive education other than at school (EOTAS). This is where a child with SEN receives their education outside of a traditional school setting through an agreed package of bespoke provision.
17. The Council made minor amendments to Y’s EHC Plan in February 2025. However, the specified provision set out for Section F and Y’s EOTAS stayed the same as the previous version of his plan.
18. Y’s EHC Plan said he should receive direct and indirect speech and language therapy (SALT) provision, made up of:
• three direct contacts with a SALT service per year, which would take up to one hour per session and to include;
• language and speech assessments;
• liaison with parents and adults working with Y to create tailored resources an activities;
• training and modelling for parents; and
• target setting, recommendations and modelling of resources and activities to parents and other adults working with him.
19. The occupational therapy (OT) provision specified was direct and indirect and included:
• an assessment of Y’s needs;
• a sensory handbook for parents;
• four hours of direct OT input per year for planning, training, target setting and giving advice to adults working with Y;
• three direct OT hours per term for review, assessment and monitoring.
20. Before the period of my investigation, Y had, for some time, been on a waiting list to be assessed by the local health authority so it could attempt to deliver his required SALT provision.
21. As part of his EOTAS, Y attends an alternative education provider, Provision A.
22. Y’s OT had been delivered by an OT provider during the academic year 2023-24.

September 2024 onwards

23. Early in October 2024, the local health authority SALT service sent the Council and Provision A an email to say they could not provide Y with appropriate support. They said this was due to how their service was structured which would not fit with Y’s profile and needs. He would need to be assessed by someone he was familiar with in order for this to be successful.
24. Towards the end of October and as part of discussions related to the annual review of Y’s EHC Plan, Mrs X emailed the Council. She included an OT assessment report and emails from the NHS SALT service advising an NHS assessment would not be appropriate for Y.
25. In mid-November, Mrs X chased a response to her October email.
26. Early in December, the OT provider who had worked with Y until July 2024 emailed Provision A to say it had not had contact from the Council regarding funding for the academic year and was therefore unable to take any further action. The OT provider also advised Mrs X that it had contacted the Council about funding for the 2024-25 academic year three times between July and September 2024 and had closed its case due to lack of contact from the Council. Mrs X contacted the Council.
27. The Council responded the next day to say it would look into OT funding queries. It then discussed matters directly with the OT provider over the coming weeks. The OT provider said it could not roll over unused sessions for the previous academic year and would send a new quote.

2025

28. The OT provider communicated with the Council throughout January regarding its new quote for the 2024-25 academic year.
29. In mid-February, the Council updated Y’s EHC Plan making minor changes to how the plan was set out. The contents remained unchanged, he was still to be educated via EOTAS and this would continue into the next academic year. The Council’s letter sent with the updated plan explained Mrs X’s right to appeal to the Tribunal.
30. By the end of February, the Council advised Mrs X its funding panel had recently agreed OT costs for Y but it needed more information on the current package of SALT being delivered to Y. Mrs X advised the Council Y was not receiving any of his SALT entitlement. Mrs X said a private therapist who was familiar with Y through Provider A had sent a quote to the Council in January for it to deliver SALT to him.
31. By the beginning of March, the OT provider had not yet had confirmation from the Council that it could once again begin work with Y. It advised the Council and Mrs X that Y’s case would be closed if there were no further updates on the file by 10 March. The OT provider advised the Council it needed to click a link in its quote in order to agree the funding. Y’s case officer chased this internally at the Council.
32. By the end of March, Mrs X emailed the Council to advise that as no action had been taken to confirm with the OT provider, it had closed its file. She pointed out that it was now seven months that Y had no OT.
33. In mid-May, Mrs X again emailed the Council about Y’s lack of OT and SALT. The Council responded to say Y was due an annual review of his EHC Plan. Mrs X expressed her unhappiness that another review was due but that the review from April 2024 had still not yet been finalised.
34. Mrs X complained to the Council at the end of May 2025. She said it had failed to deliver SALT provision since 2022 and OT provision since July 2024.
35. In mid-June, the Council sent its stage one response and upheld Mrs X’s complaint. It acknowledged Y had not been given his direct SALT and OT provision as specified in his EHC Plan. The Council said it had recently received a quote from a private SALT provider to deliver Y’s provision. It also said Y’s OT provider would be attending the annual review of his EHC Plan and would then send the Council a quote for an updated report and delivery of direct OT provision. The Council said this would then be taken to panel to seek agreement of costs for the EOTAS package.
36. Mrs X escalated her complaint to stage two of the Council’s process.
37. Towards the end of June, Mrs X registered an appeal with the Tribunal. She repeated her original complaint to the Council that SALT and OT was not being delivered.
38. The Council sent its stage two response in mid-August. It repeated that it had fully upheld her complaint about SALT and OT in its stage one response. It also went on to explain how it had made amendments to the wording of Y’s Section F provision for an updated version of his plan which would soon be finalised, after a recent review.
39. The Council’s response also said that although the OT had been agreed, it had not been delivered ‘due to miscommunication’. It said the full EOTAS package (including OT) had been agreed at panel. The Council committed to ensuring SALT and OT was in place for September 2025 and signposted Mrs X to us.
40. In June 2026, Mrs X withdrew her Tribunal appeal.

Analysis

41. In my enquiries, I asked the Council why SALT and OT provision was not already in place by the period of my investigation as it had been in Y’s EHC Plan for some time already. The Council said this was due to a combination of factors rather than a single failure.
42. The Council said funding arrangements for SALT and OT provision were evolving throughout the process and that it recognised that its actions were protracted and did not result in timely implementation or any interim arrangements for Y.

SALT provision

43. In response to my enquiries, the Council said that work had been ongoing throughout late 2024 and early 2025 to clarify SALT provision needed, costs involved and that by mid-2025 a more comprehensive package of both SALT and OT was being developed for Y.
44. The Council seems to have overlooked that SALT had never been delivered despite it being in Y’s EHCP since at least August 2023 and before the period of my investigation.
45. The local health authority advised in early October 2024 that it could not assess Y for SALT. This did not prompt decisive action from the Council to ensure that SALT which it already had a duty to organise for him, was delivered quickly.
46. I acknowledge there is evidence of SALT being discussed in late 2024 and early 2025. However, when Mrs X pointed out in February 2025 that a quote for private SALT had been submitted in January 2025, there is no evidence to suggest this was progressed in a timely or effective manner.
47. As per the Council’s complaint responses to Mrs X, this meant no SALT was delivered throughout the academic year 2024-25.
48. The Council had a duty to organise SALT for Y and ensure this was being delivered. Not doing so was fault. It caused avoidable distress, frustration and uncertainty for Mrs X. It meant Y was without the SALT provision he should have received for a full academic year. I have made a recommendation below to remedy this injustice.

OT provision

49. In response to my enquiries, the Council cited delays in approval processes and funding confirmations that impacted OT provision.
50. I agree. Evidence shows the existing OT provider approached the Council well before the start of the academic year in September 2024 to get the provision for the coming year agreed in a timely manner. The OT provider’s emails were ignored and it closed Y’s file. When this was later pointed out to the Council, it did not prompt swift and decisive action.
51. After some later progress, Mrs X and the OT provider made it clear at the beginning of March 2025 that Y’s file would again be closed due to lack of confirmation from the Council. Despite the Council having agreed funding and an officer chasing this internally at the Council, the Council did not click the link to accept the OT provider’s services. The file was again closed due to a lack of action on the Council’s part.
52. There is no evidence of this being dealt with or progressed on the Council’s side until it responded to a chase email from Mrs X in mid-May 2025 where it suggested discussing this at Y’s upcoming EHC Plan annual review.
53. The Council had a duty to organise the OT provision specified in Section F of Y’s EHC Plan. Its lack of oversight, decisive action and failure to arrange the provision was fault. This caused avoidable distress, frustration and uncertainty to Mrs X. It meant Y was without the OT provision he should have received for a full academic year. I have made a recommendation below to remedy this injustice.

Service improvement

54. The Council has recently agreed a service improvement recommendation in a similar but unrelated complaint about delivery of provision in EHC Plans. I will therefore make no further recommendation here.

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Agreed action

55. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Mrs X for the identified injustice; and
• make a symbolic payment to Mrs X of £1200 to remedy Y’s lost OT and SALT provision for the 2024-25 academic year.
56. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
57. Payments made are in line with the Ombudsman’s guidance on remedies.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman