The Investigation

The complaint

1. Mrs E has two children with special educational needs, ‘X’ and ‘Y’. They both have Education, Health and Care (EHC) Plans. She complained they did not receive speech and language therapy (SALT) detailed in their Plans. In X’s case she said he also did not receive Occupational Therapy (OT) detailed in his Plan. Mrs E also complained about delay by the Council in answering her complaint.

2. Mrs E said as a result both children did not receive provision that was key to meeting their special educational needs.

Legal and administrative background The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

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. 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 report.

8. Under our information sharing agreement, we will share this report with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Relevant law and guidance

9. A child or young person with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements to meet them.

10. 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 councils cannot delegate this duty, which they owe personally to the child. This means if the council asks another organisation to make provision, but it fails to do so, the council remains liable. (see R v London Borough of Harrow ex parte M [1997] ELR 62 and R v North Tyneside Borough Council [2010] EWCA Civ 135)

11. The council must arrange for a review of an EHC Plan 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 process completes when the council issues a decision to amend, maintain or discontinue 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)

12. 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 with details of the proposed amendments. (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 and that councils must issue the final amended EHC Plan within a further eight weeks.

13. There is a right of appeal to the Tribunal where the council amends certain sections of an EHC Plan. This includes where it amends the special educational provision set out in section F of the Plan.

Relevant Council Policies

Council arrangements for delivering therapy services to children with special educational needs

14. In March 2022 the Government inspectorate of education and children’s services, Ofsted, inspected the Council’s special educational needs provision. In May 2022 it provided its report which identified several areas of weakness including that “capacity within the speech and language therapy and occupational therapy services is unable to meet demand”. It recommended an area strategy to address the integrated therapy needs of children and young people across the County.

15. At the time the Council contracted with the Buckinghamshire Healthcare NHS Trust to provide SALT, OT and physiotherapy. It delivered the service through the Children and Young Person’s Integrated Therapy Service, jointly funded by the Council and the local NHS Integrated Care Board. We refer to this service as the “therapy service”.

16. To help meet the demand for its service, and before 2023, the therapy service began sub-contracting some of the SALT it provided to a private provider. We refer to that provider as the “contracted provider”.

17. In April 2023 the Council agreed to recommission the therapy service following a procurement procedure. The new contract took effect from January 2024.

18. The therapy service decided to end its contract with the contracted provider when the new contract came into force. The contracted provider wound down its service, which stopped by the end of March 2024. The contracted provider had provided a service to just under 400 children (including “X” whose case we consider below). The Council told us part of the therapy service’s rationale for ending the contracted provider’s service was so the therapy service could deliver more face-to-face appointments. This was because the contracted provider delivered a hybrid service that involved both face-to-face and online appointments. The Council knew of the therapy service’s decision to stop using the contracted provider and did not raise any objections.

19. Around the time it renewed the contract with the therapy service, the Council had also completed drafting its local area strategy, as Ofsted had recommended it to do. A background paper given to the relevant Cabinet member in August 2023 (when the Council approved the strategy) referred to the increasing demand for therapy services. It said the Council was increasing funding to the therapy service to enable it to expand its service, so it might keep pace with demand.

20. The strategy set out two clear aims. The first to identify children and young people’s need for support at an earlier stage. The second to reduce the demand and dependency on specialist support, with more support provided through schools, health settings and other partner organisations. The strategy said this would enable the therapy service to better target specialist support to those children with the most complex needs.

Council complaint procedure

21. The Council has a two-stage complaint procedure. When someone first complains the Council will ask a senior officer from the service complained about to oversee an investigation and try to resolve the issues. The Council says that it will provide a response in a maximum 20 working days.

22. If the complainant remains dissatisfied the Council will consider carrying out a further investigation, overseen by a deputy monitoring officer or manager from its central team. It says it will aim to provide a written response to the complaint at this second stage of its procedure, within 20 working days. If it needs longer to complete its enquiries it will write to the complainant and let them know.

What we have and have not investigated

23. Mrs E first made us aware of her complaint in October 2024. None of her complaint about X’s education provision was late, as it concerned the provision he had received from the beginning of the previous academic year, from September 2023. However, in Y’s case, Mrs E wanted us to look further back in time as she said he did not receive adequate provision during the 2022-23 academic year.

24. We decided we did not have good reasons to investigate events from before September 2023 (see paragraph 5). So, our investigation looked at X and Y’s education provision during the 2023-24 academic year and the Autumn term of the 2024-25 academic year. We could not investigate events beyond December 2024, as we began our assessment of Mrs E’s complaint in January 2025.

25. We note in the facts below some possible disagreement between Mrs E and the Council about the extent of SALT needed by Y. We did not investigate this as we considered the extent of provision needed by Y would be a dispute for the Tribunal to resolve (see paragraphs 6 and 7).

26. Our investigation considered therefore only the delivery of SALT and OT provision to X and Y between the dates identified.

How we considered this complaint

27. We have produced this report after examining relevant files and documents and speaking to the complainant. We also met with relevant employees of the Council.

28. We gave the complainant and the Council a draft version of this report to comment on and gave them an opportunity to provide any further evidence they considered relevant to its content. We took account of their responses to the draft report before finalising its content.

What we found 

The key facts 

Child X

29. In September 2023 X entered Year 4 of his education, having had an EHC Plan

since he began Year 3. Both this Plan and an amended version issued in September 2024 said X needed SALT and this would comprise the following:

• a Therapist would set out objectives to help him develop his language skills and school staff would help deliver this; and

• that he would have nine hours “direct” work with a Therapist and six hours “indirect” support from the therapy service throughout the school year.

  30. Between September 2023 and December 2024, X received the following SALT:

• in the Autumn term 2023 he received three sessions of direct work from the contracted provider of up to an hour each. The provider delivered the sessions online;

• in the Spring term 2024 he received one session from the contracted provider, again online;

• in the Summer term he did not receive any direct therapy, but his school discussed his case with the therapy service; and

• in the Autumn term 2024 he received two sessions of direct work with the therapy service.

31. During our investigation the Council told us the therapy service had also;

• provided one session of direct work with X in the Spring term 2025 and updated his targets; and

• planned another session of direct work for the Summer Term 2025. Mrs E said this session did not take place.

32. X’s Plan also said he would receive provision from “the occupational therapy team”. The team would meet with X, his school and Mrs E to discuss targets and provide intervention and training to school staff. Both the August 2023 and September 2024 versions of the Plan said X would receive four hours “direct” support and six hours “indirect”.

33. In September 2023 Mrs E received a letter from the therapy service. It said that it would meet X’s need for OT “through online consultations and coaching through our advice sessions with an Occupational Therapist and through classroom work led by teaching staff”. It said that both parents and schools could have ‘joint calls’ with therapists. The service would then provide a summary and advice sheet with agreed strategies and activities and give this to both parent and school. The letter also said the therapy service would offer face-to-face support in the school setting. It would arrange this with the school.

34. The therapy service also sent a letter to X’s school explaining how it would provide his OT hours “through virtual coaching and online support”. This letter also said the therapy service would prioritise face-to-face interventions with pupils with “high health needs”.

35. During the academic year 2023-24, X did not receive any OT during the Autumn or Spring terms. During the Summer term the therapy service held an online meeting with his school.

36. During the Autumn term 2024-25 X had a face-to-face review with an OT. After which the therapy service issued updated targets and a plan for intervention for his school.

Child Y

37. Before March 2022 Y received SALT from the therapy service at which point it decided to discharge him from its service. But when the Council issued an updated EHC Plan to Y in February 2023, Section F included SALT provision. It did not include OT provision. The Plan said Y would receive support from the “universal and targeted service” for his SALT needs, which it said comprised three tiers of support as follows:

• the first tier involved Y’s school accessing advice sessions;

• the second tier involved the school setting specific targets and accessing webinars and training; and

• the third tier also referred to target setting and “one session with SALT to carry out baseline measure and demonstrate strategies with follow-up through the school advice clinic (as above)”.

38. There was a review of Y’s Plan in November 2023. This was shortly after he began Year 7 at the start of the secondary phase of his education. The minutes of the review meeting recorded Mrs E having concern Y did not receive SALT or OT. The school said it would ask for an assessment of his needs in these areas. The minutes also recorded a proposal to amend Section F to update it with details of SALT / OT “if appropriate”.

39. In February 2024, the Council issued an amended draft EHC Plan following the November 2023 review. It did not contain any changes to that part of Section F referring to Y’s need for SALT. It did not include any OT provision.

40. Y’s school contacted the Council in July 2024, following another review of his Plan, raising a concern that he needed SALT provision. The Council issued a further draft version of his EHC Plan that month which proposed adding wording that Y needed a “reassessment from SALT to support interventions”.

41. However, the Council did not issue a final amended EHC Plan for Y until April 2025. This continued to have the same wording in Section F as the previous two versions. But now it also said Y would have a “structured programme provided by a speech and language therapist”.

Mrs E’s complaint

42. In May 2024 Mrs E complained X had not received the SALT or OT set out in his EHC Plan, receiving only limited SALT. She also complained that Y had SALT provision detailed in his EHC Plan, but the Council had not provided that.

43. The Council replied in July 2024, apologising for its delay in doing so. It also apologised for a “lack of clarity” about what therapy provision it had made for X and Y. It said:

• X should receive 15 hours of SALT a year, and 15 hours of OT, according to his EHC Plan;

• that it recognised X had only received limited SALT. It said since the therapy service ended its contract with the contracted service, it had “struggled to provide for the large number of children and young people returning into their remit”. But meanwhile it had offered “advice sessions” to schools;

• that schools had to contact the therapy service if children needed OT. It said there were other parents who did not know this and that not all schools were aware; and

• the therapy service had discharged Y in March 2022 and any need he had for SALT was for his school to meet with support from the therapy service if required through its “ordinary service”.

44. Later that month Mrs E escalated her complaint, reiterating her concern neither X nor Y had received the therapy provision set out in their EHC Plans.

45. In September 2024, the Council gave its final reply to Mrs E’s complaint. It apologised for the delay in doing so. It:

• again recognised X had only received limited SALT during the 2023-24 academic year. It recognised the therapy service had not provided direct therapy since ending its contracted service but said X’s school monitored his needs. It said there should have been better contingency planning when the contracted service ended. It said the therapy service had vacancies in its service it wanted to fill;

• reiterated its view that Y did not need SALT after March 2022. It considered it should have removed this provision from his EHC Plan after that. It proposed issuing an amended Plan to Y, that would now do this. If Mrs E disagreed with its decision, then she could appeal; and

• offered Mrs E a symbolic payment of £150 to recognise a “shortfall in communication”.

Additional comments

46. During our investigation, we asked the Council more about the decision by the therapy provider to end the contracted service. It told us that a “key part of transition planning” when the contracted service ended was to ensure that children and young people continued to receive SALT “without interruption”. So, it allocated extra funding to the therapy provider so it could “spot purchase” continued provision from the sub-contractor up to March 2024. It also said it held monthly meetings with the therapy provider to ensure it continued to meet needs. It said it received reassurance from the therapy provider that it could meet the needs of those children and young people previously supported by the contracted provider.

47. The Council sent us agendas for the monthly meetings, held nearly every month in 2024 and 2025. A standing agenda item considered the therapy provider’s service and how it met demand. The Council did not send us any minutes of those meetings.

48. The Council also sent us a copy of the therapy service’s transformation plan, which included work to monitor the return of cases from the contracted provider to the therapy provider. The plan also said the service would review all EHC Plans to ensure any SALT and OT provision “remained appropriate” and consistent. The Council did not provide details of how the service carried out this monitoring in practice.

49. The Council also sent us some details of its contract with the therapy provider which requires it to have an audit plan. This includes a requirement that it should audit its EHC Plan delivery once a term.

Conclusions

Child X

50. We upheld Mrs E’s complaint, finding X did not receive the SALT or OT set out in his EHC Plans between September 2023 and December 2024. He received less than half the SALT his Plan said he should receive. The Council had not arranged for him to receive therapy to make-up for the shortfall during the remainder of the academic year. He also did not receive most of the OT set out in his Plan.

51. This caused X an injustice. While we recognised his school will have done their best to support him to have those needs met, we found he still experienced a shortfall in his provision. This was because his Plan specified the need for him to receive direct support from qualified professional therapists. Below, we recommend action we want the Council to take to remedy that injustice.

52. But before setting that out, we will address the bigger failings by the Council highlighted by this complaint. We considered X’s experience was not unique, given the service he received deteriorated after the therapy service commissioned by the Council stopped using the services of the contracted provider, in March 2024. As we noted above X was one of nearly 400 children who received a service from the contracted provider.

53. We noted the Council expected the therapy service to pick up SALT provision for children and young people with EHC Plans, after it stopped using the contracted provider. We noted that while the Council gave extra funding for the therapy service to provide SALT if it lacked its own resources to do so, this was only for three months.

54. In X’s case the therapy service failed to deliver his provision. The evidence suggested this was not a one-off failing. The Council told Mrs E in answer to her complaint the therapy service had “struggled” to meet the needs of children returning to its direct service after it ended its agreement with the contracted provider. It also recognised there was inadequate contingency planning for this scenario.

55. We considered responsibility for this lack of planning fell to the Council. Its local area strategy required the therapy service to direct more of its resources towards supporting schools and other frontline services to deliver therapy for pupils. But when it introduced this strategy it did so against a backdrop of high demand for the service. The Council anticipated the therapy service could deliver both the change required by the strategy and meet this demand through an increased budget. But the background papers which set out the strategy and the decision to renew the contract lacked important content, suggesting a lack of appropriate scrutiny. They did not set out how long it would take the therapy service to have enough staff to meet the demand. They did not break down what that demand might look like to include the need to support children and young people with therapeutic provision set out in EHC Plans.

56. We noted the Council held monthly meetings with the therapy service and looked to ensure it would audit its service provision. But we questioned the effectiveness of these measures. Nowhere did we see evidence the Council properly considered the impact of withdrawing the contracted service nor the speed with which the therapy service was picking up demand. It did not provide any evidence to show it tried to find out how many children and young people were not getting the SALT provision set out in their EHC Plans. Nor did it look to ensure those children and young people received their provision, either by the therapy service commissioning another contractor, or the Council doing so.

57. We accepted the Council expected and believed the therapy service’s ability to deliver therapy to children who previously used the contracted provider would improve over time. However, this could not resolve the short-term need to ensure children such as X, who had an EHC Plan requiring specific therapy provision, received that therapy. The Council simply did not act quickly or decisively to better ensure those children had their needs met. That was fault over and above the individual failings in X’s case.

58. We also considered the change in approach signalled by the new therapy strategy impacted the OT service X received. The Council letter of September 2023 explaining how the therapy service would deliver OT did not distinguish the needs of pupils with EHC Plans. We recognised the therapy service sent the letters in response to high demand for its service, and not just because it had introduced a new strategy. But the letters sent to Mrs E and the school did not reflect the Council had a duty to make the specific provision set out in EHC Plans. The stage one reply to Mrs E’s complaint also suggested the therapy service had changed its approach towards meeting OT needs without considering the specific needs of children with EHC Plans.

59. The strong impression was therefore that X’s need for OT did not simply fall between the cracks of an overstretched service. Instead, the service delivery changed in a way that meant the therapy service could not fulfil its duty to provide the service specified in his Plan. This required direct and indirect support from a qualified therapist and it could not meet that need simply by encouraging his school to provide more OT. There is again no suggestion the Council sought to challenge the therapy service’s approach. This further lack of oversight was another fault which would have impacted children and young people in addition to X.

Child Y

60. The facts in Y’s case are different. We accept the view put forward by the Council that during the 2022-23 academic year it understood Y no longer needed regular SALT from the therapy service.

61. However, Y went into the 2023-24 academic year with an EHC Plan that referred to him still receiving SALT in Section F. The February 2023 version of his Plan described ‘three tiers’ of SALT support and implied Y met the need for support under each tier. In which case, Y should have received one session with a qualified therapist each year to review his progress with the school. If the Council did not intend this, then it should not have put it in the Plan and removed it at the earliest opportunity, giving Mrs E the right to appeal.

62. But the Council did not amend Y’s Plan to remove the provision. So, the Council remained under a duty to provide it. Not doing so, was therefore fault.

63. Further, the Council was at fault for its failure to complete a review process during the 2023-24 academic year. There was a review of Y’s Plan in November 2023. After a delay the Council issued a revised draft version of his Plan in February 2024. But it then failed to finalise the Plan before Y’s next review in July 2024.

64. During the following academic year, the Council continued to delay issuing Y with an updated Plan. It did not provide him with a final version until April 2025. That version of the Plan set out its view that Y needed a reassessment of his speech and language therapy needs. But the failure of the Council to issue an updated Plan sooner setting out its view on Y’s need for this therapy was fault.

65. The consequence of this was twofold. First, after November 2023 Y lacked an up-to-date Plan. While we cannot be certain what Y needed in terms of any SALT provision at that time, evidence suggests he may have needed a reassessment then. So, the Council’s fault caused unnecessary uncertainty about this, which we consider a form of distress and was therefore an injustice.

66. Second, Mrs E had no ability to appeal the provision Y needed. Not only the extent of any SALT he needed, but any other provision also, including any potential need for OT, something she raised as an issue in November 2023. This will have added to Mrs E’s distress and was an injustice to her. Below, we recommend action we want the Council to take to remedy that injustice.

The Council’s complaint handling

67. Finally, we have considered the Council’s complaint handling in this case. We noted that at both stage one and stage two it delayed in replying to Mrs E’s complaints. This was fault. And the delays will have resulted in some frustration for Mrs E. But we noted on both occasions the Council apologised for the delays. While at stage two it also offered a symbolic payment which we considered an adequate remedy for this injustice.

68. However, we also had a concern about the wider approach taken by the Council to Mrs E’s complaint. At both stages of the complaint procedure, it acknowledged failing to make adequate provision to X, as detailed in his EHC Plan. Yet on neither occasion did it seek to remedy that. This was not in line with our expectations set out in our published guidance on remedies. We therefore recommend action we want the Council to take to learn from this.

Recommendations

69. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

70. In addition to the requirements set out above, the Council has agreed that within three months of the date of this report it will provide a personal remedy to Mrs E for the injustice set out in paragraphs 51, 65 and 66. It will:

• apologise to Mrs E, accepting the findings set out in this report. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making this apology; and

• make a symbolic payment to Mrs E of £1,000. This comprises a payment of £500 to recognise the shortfall of provision to X as he did not receive all SALT and OT identified in his EHC Plan between September 2023 and December 2024. It also comprises a payment of £500 to recognise the more limited shortfall in the loss of provision to Y as he did not receive the SALT identified in his EHC Plan between September 2023 and December 2024, together with the distress caused by the Council’s failure to issue a final amended EHC Plan throughout this time. This payment is in addition to the £150 the Council offered Mrs E in its stage two reply to her complaint. If she did not accept this, the Council will offer this payment again to recognise the time and trouble she experienced arising from delays in its complaint handling.

71. We did not recommend any further assessment of either X or Y’s need for SALT or OT, nor any additional provision, given the passage of time since the events covered by the complaint. Both had received further reviews of their EHC Plans and Mrs E therefore had chance to appeal if she considered their current provision inadequate, including if that inadequacy arose from a lack of provision in previous years.

72. In addition to this personal remedy, the Council agreed that within three months of the date of this report it would undertake service improvements. It will:

• set out a plan for how it will tackle any shortfall in meeting the needs of children and young people with EHC Plans whose needs are not currently met by the therapy service. The plan should include specific measurable targets for improved performance to ensure there is no shortfall in the service to pupils with EHC Plans who need SALT and/or OT;

• develop a protocol for cases where the therapy service cannot deliver therapy provision in line with a child’s EHC Plan. The overriding aim of this should be to ensure the child or young person receives the therapy specified in their Plan. So, the protocol should address how the Council and therapy provider can do this, which may include sub-contracting more work to third party providers or paying for therapy delivered privately which the parent has accessed. It should make clear that while the therapy provider can continue to support schools to meet the needs of children and young people in line with the Council’s therapy strategy, this cannot be at the expense of delivering specific provision detailed in an EHC Plan; and

• provide a briefing to staff who deal with complaints about special educational needs provision, setting out our expectation that when the Council identifies a service failing it will consider ways of remedying that in line with our published guidance on remedies.

Decision

73. We have completed our investigation into this complaint. We find fault by the Council causing injustice to Mrs E. The Council has agreed to take action to remedy her injustice and improve its service.

74. We have published this report because we consider it in the public interest to do so, given the injustice caused to the complainant and the wider systemic problems the complaint has revealed.

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