Summary: I found fault with the Council delaying provision of Mrs X’s child Speech and Language Therapy from their Education, Health and Care Plan. The Council agreed to apologise to Mrs X and provide a symbolic financial gesture for the impact these delays had on Mrs X’s child.

The complaint

1. Mrs X complained the Council delayed provision of her child’s Speech and Language Therapy until late October 2025 following a tribunal hearing in July 2025. Mrs X says her child’s Education, Health and Care Plan required an early block of sessions to establish her child’s Speech and Language Therapy programme.
2. Mrs X also complained the Council delegated delivery of her child’s Occupational Therapy to the school.

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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. 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)
5. 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.
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. 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)

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What I have and have not investigated

8. I have investigated Mrs X’s complaints about the Council’s delays after production of the amended final EHC Plan following the SEND Tribunal issuing a Consent Order in July 2025. I have ended my investigation in April 2026.
9. I have not investigated matters before July 2025 because these are intrinsically linked to the matters considered by the SEND Tribunal.
10. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
11. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
12. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the Tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 
13. For Mrs X’s complaint the matters we cannot investigate includes:
• reimbursement for Occupational Therapy assessment costs, ;
• issues surrounding consulting schools during the tribunal proceedings period;
• information provided and considered during the tribunal proceedings;
• complaints about misrepresentation or inaccuracies the SEND Tribunal made judgements on; and
• the content of the EHC Plan itself.
14. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
15. I have not investigated matters after April 2026 because this is the date the Ombudsman got the enquiry response from the Council. I have exercised my discretion to investigate matters as up-to-date as possible despite the Council issuing its complaint response in October 2025. This is because the issues in Mrs X's complaint have been ongoing. The Ombudsman cannot leave an investigation open-ended, so I have closed my investigation from April 2026 as the most logical point. Any matters after this point would be the subject of a new complaint with the Council first.  

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How I considered this complaint

16. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
17. 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

Rules and regulations

18. 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. 
19. 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).
20. Where the tribunal issues a Consent Order requiring the Council to produce an amended final EHC Plan, the Council must do so within five weeks of the Consent Order being agreed.
21. BA, R (on the application of) V Nottingham County Council [2021]. EWHC 1348 (Admin). The Court found that, local authorities should take proactive and constructive steps to secure provision and it be in place within five-weeks of a Tribunal order.

What happened

22. Mrs X made an appeal to the SEND Tribunal about Sections B, F and I of her child’s, Y’s, EHC Plan.
23. In July 2025, the SEND Tribunal issued a Consent Order requiring the Council to amend Y’s EHC Plan as set out in the working document. This Consent Order included a change in the placement named in Section I and inclusion of quantifiable OT and SALT provision in Section F.
24. Following the SEND Tribunal issuing the Consent Order, Mrs X asked the Council when it would be issuing the amended final EHC Plan for Y. Mrs X also asked that the Council had made arrangements for provision of Y’s Occupational Therapy (OT) and Speech and Language Therapy (SALT) provision in time for the start of the September 2025 term. The Council responded to advise it has five weeks to issue the amended final EHC Plan and was working on commissioning the OT and SALT provision as soon as possible in September 2025.
25. Mrs X made a formal complaint to the Council in July 2025. The Council sought further information from Mrs X about her complaint, which Mrs X provided. The Council also began consultations for OT and SALT provision with approved therapists for Y.
26. In August 2025, the Council issued an amended final EHC Plan for Y. The amended Final EHC Plan confirmed Y would start at their new Section I placement in September 2025. The amended final EHC Plan also included the following Section F provision for Y:
• A further SALT assessment over a block of 3-4 visits to carry out a dynamic and play based assessment to inform Y’s future SALT therapy sessions.
• Provision of direct SALT sessions by a Speech and Language Therapist at least once every three weeks, for a minimum of 30 minutes, for one full term in the school year 2025-26.
• Following completion of the assessment with the Speech and Language Therapist, they will provide a programme of short sessions for the school to deliver up to three times per week.
• The SALT provision to be reviewed every six months and amended accordingly.
• An OT will complete a sensory processing audit of Y within the first four weeks of placement.
• The OT’s assessment will inform a sensory support plan shared with school staff working with Y to implement adjustments for Y. The school will implement a minimum of two structured regulation sessions per day. The OT will oversee delivery of this support plan.
• The OT will deliver two hours per academic year for writing an annual review report and two hours for attendance as well as three hours for programme writing.
• Provision of twelve direct OT sessions, minimum 30 minutes in length, per academic year as part of an early intervention.
27. The Council decided to escalate Mrs X complaint to stage two of its process and did not issue a stage one response.
28. At the start of September 2025, the Council found a suitable OT for Y and asked the school to contact and commission the provision. The Council told Mrs X it had asked the school to arrange the OT provision. The Council told Mrs X it was having trouble sourcing suitable SALT. Mrs X liaised with the Council about when the SALT and OT provision would start and the Council continued to work with Y’s school to source provision.
29. An OT completed an assessment of Y near the end of September 2025 with the direct sessions due to start in October 2025.
30. The Council provided a stage two complaint response at the end of September 2025. The Council said:
• It could not investigate matters which fell within the jurisdiction of the SEND Tribunal.
• It had worked collaboratively with Y’s school to source OT and SALT provision for Y.
• Because the Tribunal order coincided with the school’s summer break, provision could not have started until the start of the 2025-26 academic year at the earliest.
• It had been unable to source SALT provision so far but had found suitable OT.
• It upheld Mrs X’s complaint because the Council did not ensure Y’s EHC Plan provision was in place within five weeks of the Tribunal order.
• It did not consider Y had suffered any injustice by its fault because Y’s full EHC Plan provision could still be delivered within the 2025-26 academic year as outlined in the EHC Plan.
• It would ensure Y’s provision was delivered as outlined in the EHC Plan.
31. Near the end of October 2025, the SALT completed an initial assessment, finalising this in November 2025 before starting direct SALT sessions in mid-November 2025.
32. In January 2026, Y’s OT support stopped following provision of the first six sessions. The Council sourced alternative OT provision but could not put this in place until April 2026. Mrs X contacted the Council to raise concerns about the stop in the OT provision and delayed restart until April 2026.

Analysis

33. Following the Consent Order issued by the SEND Tribunal, the Council had five weeks to produce an amended final EHC Plan for Y. The Council met this timescale in production of the amended final EHC Plan and I do not find fault.
34. A council can delegate delivery of a child’s EHC Plan to other organisations, such as schools, but must keep overall oversight and responsibility for its delivery. This means a council can ask a school to arrange OT or SALT support. But if a school does not put this in place, it is the Council that is still at fault and not the school.
35. The courts have found a council should take proactive steps to ensure provision outlined in a child’s EHC Plan is in place within five weeks of a tribunal order. For Y, delivery of any provision detailed to be implemented by the school could not be achieved within five weeks because this time period almost exclusively covered the school’s summer holidays. Much of Y’s OT and SALT provision is worded in such a way that delivery through school is required. I do not find fault with the Council delaying delivery of this provision the school reopened in September 2025.

Speech And Language Therapy

36. Y’s school did not need to be involved in completion of the initial SALT assessment over a block of 3-4 visits. The Council should have completed this by mid-August 2025. The Council did not complete the initial block of visits until mid-November 2025; this was a delay of three months beyond when the Council should have completed this. This was fault.
37. Despite the delay, the SALT still had time in the academic year to complete all required direct sessions outlined in Y’s EHC Plan, so Y has not missed this provision.
38. But, because of the Council’s fault, Y’s school would have been unable to deliver the programme of short sessions up to three times per week until mid-November 2025. This meant Y missed two and a half months of this SALT provision. This was the injustice caused by the Council’s fault.
39. The Council should apologise to Mrs X for the delayed start to the SALT provision. The Ombudsman normally looks to put a person back in the position they would have been in if not for the fault of the Council, this can include delivery of catch-up provision. Given the nature of Y’s SALT provision being provision that needs to be provided “up to” a certain amount of duration and number of times per week, catch-up provision is not suitable for Y. Doing so would go against the professional advice used to produce Y’s EHC Plan which requires a build-up of provision to promote relationships with staff and attention. Since catch-up provision is not suitable, the Council should provide a symbolic payment of £250 for the impact of the Council’s delays on Y.

Occupational Therapy

40. The Council was specific in Y’s EHC Plan the initial assessment by the OT should be completed within four weeks of the start of the placement. Because of this, the Council did not need to deliver this within five weeks of the Consent Order as the Council provided a specific timescale for this. The OT completed the assessment within four weeks of the start of the placement and I do not find fault.
41. The EHC Plan outlined the OT’s initial assessment would inform Y’s sensory support plan which would be delivered by Y’s school. Therefore, delivery of the sensory support plan was not intended to be in place until after the four weeks allowed for the initial assessment. The sensory support plan and direct sessions started in October 2025 following the initial assessment; I do not find fault.
42. The EHC Plan does not include specific time for the OT to directly “oversee” the school’s delivery of the sensory support plan. There is no expectation in the EHC Plan that an OT would be in attendance for those sessions. Oversight of the school’s delivery of the sensory support plan must be read as through the OT’s committed time in the EHC Plan. This is through the initial assessment, writing of the sensory support programme, twelve direct sessions across the academic year and the time allowed for report and programme writing. Given the EHC Plan only provides for twelve direct OT sessions across a school year, consisting of thirty-eight to thirty-nine weeks, the direct sessions timing does not have a bearing on delivery of the sensory support programme.
43. From October 2025 until January 2026, Y received six direct OT sessions. The OT provided an overall package of support during this time which enabled oversight of the school’s delivery of the sensory support plan. I do not find fault with the Council.
44. The OT assigned to Y decided to stop their work in January 2026; this was not the fault of the Council and outside its control. The Council had a duty at this time to ensure Y’s provision was restarted and fulfilled by another OT. The OT stopping in January 2026 would not prevent Y’s school from continuing the sensory support programme with Y.
45. The Council met its duty and arranged for a new OT to start work with Y in April 2026. This allowed sufficient time for fulfilment of the remaining six sessions before the end of the academic year. I do not find fault with the Council’s delivery of the OT from Y’s EHC Plan.

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Action

46. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology and a symbolic payment of £250 to Mrs X for the impact on her child for the Council’s delayed delivery of her child’s Speech and Language Therapy from their Education, Health and Care Plan for up to three months. 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 in my findings.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman