Summary: Ms M complained about the actions of Hampshire County Council (the Council), Hampshire and Isle of Wight Healthcare NHS foundation Trust (the Trust) and NHS Hampshire and Isle of Wight Integrated Care Board (the ICB). Ms M complained the organisations failed to ensure her child, S, received therapy provision set out in his Education, Health and Care (EHC) Plan. She also complained about the Council’s and Trust’s complaint handling. We have upheld parts of Ms M’s complaint relating to therapy provision and complaint handling. The organisations have accepted our recommendations. We have now completed our investigation.

The complaint

1. Ms M complains about the actions of Hampshire County Council (the Council), Hampshire and Isle of Wight Healthcare NHS Foundation Trust (the Trust) and NHS Hampshire and Isle of Wight Integrated Care Board (the ICB).
2. Ms M says the Council, Trust and ICB failed to ensure her child, S, received the Speech and Language Therapy (SALT) and Occupational Therapy (OT) provision as set out in sections F and G of his Education, Health and Care (EHC) Plan. She also complains about flawed complaint handling by the Council and Trust.
3. Ms M says that because of the claimed faults:
• S has missed several years of necessary special educational needs and health therapies;
• this negatively affected S’s education, emotional and physical wellbeing, future prospects and earning capacity;
• she had to remove S from school from the end of Autumn Term 2023, which meant she had to take time off work and reduced her earnings. This in turn had a harmful impact on the whole family and in particular S’s sister;
• Ms M and her husband, Mr M, have suffered emotional, physical and mental health strain and a distressing uncertainty about what S experienced in school in the past; and
• Ms M has lost trust in the organisations.
4. Ms M’s desired outcomes from this investigation are for the organisations to:
• provide robust catch-up provision for S;
• provide meaningful apologies;
• put service improvements in place; and
• pay financial remedies.

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The Ombudsmen’s role and powers

5. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
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 an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended and Health Service Commissioners Act 1993, section 4(1)(a))
8. 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.
9. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
10. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
11. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
12. When investigating complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
13. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
14. 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

15. I have investigated the complaint as set out in paragraphs 1-3 above. We considered the complaint was not late as Ms M told us she did not become aware of the claimed faults relating to therapies until late 2023. As part of our investigation, it has come to my attention that Ms M was aware of S missing OT until December 2018. Ms M was also aware of lack of therapy provision during pandemic-related school closures when these happened. I have therefore excluded the following from this investigation:
• OT provision before January 2019; and
• therapy provision during pandemic-related school closures.
16. Ms M also complained about (in summary):
1. failure to provide S with clean drinking water in school;
2. matters Ms M had also submitted to the SEND Tribunal as a disability discrimination claim against S’s primary school;
3. mismanagement of S’s EHC Plan reviews while he was in primary school; and
4. the Council’s actions after S stopped attending his primary school in December 2023.
17. I have not investigated the issues set out in paragraph 16 a-d above. A separate, LGSCO-only investigation is considering 16.d). The rest of the issues summarised in 16.a) to 16.c) are either internal school matters, subject to Tribunal proceedings, or could have been appealed following annual reviews. This means we cannot investigate them.
18. Sections F and G of S’s EHC Plan are not detailed enough for the Ombudsmen to be able to take a view on the day-to-day special educational provision the Council intended S to receive in school before he started Year 6. Ms M had a right of appeal to the SEND Tribunal when the Council issued the EHC Plan and following each annual review. It would have been reasonable for Ms M to have used her right of appeal if she disagreed with the detail in S’s EHC Plan. Therefore, my key consideration here is whether the Council and ICB ensured S received the specialist therapy summarised in paragraphs 28 and 29 below.

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How I considered this complaint

19. I have considered:
• information provided by Ms M in writing and by telephone;
• the Council’s and Trust’s written responses to my enquiries and supporting documentary evidence provided by them; and
• relevant law, statutory guidance and local policies.
20. Ms M, the Council and the Trust now have an opportunity to comment on a draft version of this decision statement. I will consider any comments they make before reaching a final decision.

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What I found

Therapy provision in S’s EHC Plan

Relevant law and guidance

21. The EHC Plan is in sections which include:
• Section F: the special educational provision needed by the child or the young person.
• Section G: any health provision needed because of their learning difficulties or disabilities which results in the child or young person having special educational needs.
22. The Council has a duty to make sure S receives the special educational provision set out in section F of his EHC Plan. The ICB has a duty to arrange the health provision named in section G of his EHC Plan (Section 42(2) and 42(3) Children and Families Act 2014). EHC Plans will often specify that other organisations, such as schools and NHS trust therapy services, will deliver the provision.
23. The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if a council or ICB asks another organisation to make the provision and that organisation fails to do so, the council or ICB remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135), R (on the application of A, by his litigation friend, B) v North Central London Care Board [2024] EWHC 2682 (Admin))
24. We accept it is not practical for councils and ICBs to keep a ‘watching brief’ on whether schools and others are providing all the provision in sections F and G for every pupil with an EHC Plan. We consider councils and ICBs should be able to show appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the 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 yearly 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.
25. Councils, ICBs and NHS trusts have a general duty to co-operate with one another in relation to a council’s special educational needs functions (Section 28 Children and Families Act 2014).

What happened

26. The paragraphs below set out the key points relevant to therapy provision for the period I have investigated. This is not a detailed timeline intended to reflect every event in the period.
27. The Council issued S’s final EHC Plan in March 2017, while S was still in nursery and was due to start attending School A in September. This EHC Plan was valid throughout the period I have investigated.
28. Section F of S’s EHC Plan includes the following provision, which the Council was responsible for securing.
• A programme of language activities and strategies developed by a speech and language therapist and delivered daily by school staff, as advised by the therapist.
• A programme of OT designed by an occupational therapist and delivered daily by school staff. This was to be reviewed termly and continue for as long as the NHS OT service considered it necessary.
29. Section G of S’s EHC Plan includes the following provision, which the ICB was responsible for arranging.
• Advice from an occupational therapist with termly reviewed programmes delivered by education staff.
• An annual assessment of OT needs with a report to contribute to the annual review meeting.
• Advice from a speech and language therapist with programmes delivered daily by school staff; termly monitoring of the programme and, where appropriate, access to clinic sessions for SALT.
30. The Trust should have provided the specialist therapy advice, programmes, services and reports on behalf of the Council and ICB. The school should have delivered the programmes on behalf of the Council and ICB.
31. While S was in reception class between autumn 2017 and summer 2018, records show:
• SALT target sheets; and
• an annual review meeting that referred to SALT and during which S’s parents commented positively about his progress.
32. While S was in Year 1 between autumn 2018 and summer 2019, records show SALT target sheets and a care plan. Ms M complained to the Trust about OT in December 2018 and Trust upheld this complaint. The OT service provided target sheets, care plans and advice from December 2018 for the rest of the academic year. The Trust also provided SALT and OT comments to the annual review of S’s EHC Plan and S’s parents contributed to that meeting.
33. While S was in Year 2 between autumn 2019 and summer 2020, records show an OT target sheet for him, a SALT review, and an annual review meeting. Records for the annual review meeting mention regular input from SALT and OT. The records also say S’s parents commented on positive progress and working with therapists. The COVID-19 pandemic affected this academic year.
34. While S was in Year 3 between autumn 2020 and summer 2021, records show SALT care plan reviews and reports. There is also an OT report for S’s annual review. On the same day the Trust issued the annual review OT report (in February 2021), it also discharged S from the OT service although there was no change to sections F or G of his EHC Plan. The record of S’s annual review refers to both OT and SALT and to criticism and lack of clarity from S’s parents about therapy provision. The COVID-19 pandemic also affected this academic year.
35. While S was in Year 4 between autumn 2021 and summer 2022, the record of the annual review of S’s EHC Plan in February 2022 refers to a SALT report. In commenting on that review later in the year, S’s parents said they felt SALT provision had been lacking since the pandemic but a new therapist had devised a programme dated February 2022.
36. While S was in Year 5 between autumn 2022 and summer 2023, there are records of a SALT review and report just before the start of the school year. The annual review of S’s EHC Plan in March 2023 included a SALT report. SALT produced further reports in April and May 2023.
37. S’s parents provided their comments for the annual review in July 2023. Their view at that point was that S’s EHC provision had not been as good as it should have, since he started school.
38. The Council decided to amend S’s EHC Plan after it received all the annual review paperwork in July 2023. It sent the draft amended EHC Plan to S’s parents in early August 2023.
39. SALT produced another report in October 2023. Soon afterwards, Ms M contacted the Council’s special educational needs (SEN) service. She did so because S’s school had told her that S had not received the regular SALT or OT named in his EHC Plan that term, due to a lack of resources. Ms M says that around this time, S’s school told her there had likely been a problem for the entire time S had been in school. Around the same time, Ms M also commissioned private assessments for S, including for autism, SALT, OT and educational psychology. A few days later, the Council, S’s school and S’s parents met to discuss the problems with S’s SEN provision. S’s school told the meeting it could not deliver the provision in S’s EHC Plan. The following day, the Council agreed to find independent SALT catch-up provision for S. Ms M is concerned that S did not receive the catch-up provision.
40. A private OT commissioned by Ms M carried out a detailed assessment with S in October 2023. The OT’s report included recommendations for provision in school. The Council later incorporated these into an amended EHC Plan which came into force after the period I have investigated.
41. SALT provided another annual review report in early December 2023. During the school holidays in between the end of December 2023 and early January 2024, Ms M confirmed S would not be returning to the school.

Was there fault causing injustice?

42. It is more likely than not that S received the specialist SALT set out in sections F and G of his EHC Plan in the period I have investigated. This is because the records show SALT programmes and reviews throughout the period. They also show discussions of S’s progress in SALT during annual reviews.
43. All parties agree that S did not get day-to-day SALT provision in school for most of the first term of Year 6. This was fault. Both the Council and ICB are responsible because the way sections F and G of S’s EHC Plan are written means they both had responsibility to ensure S received this provision. There was no fault by the Trust regarding SALT, as it continued to provide the professional advice, monitoring and reports that were its responsibility.
44. The Council has provided evidence showing it identified and put in place additional SALT provision to help S catch up on what he had missed that term. In doing so, the Council has taken appropriate action to address S’s injustice. This is because the one-to-one professional input organised by the Council is likely to have been more intensive than the day-to-day support that S did not get when in school. Ms M suffered avoidable uncertainty and distress when she became aware S was not receiving SALT. This was an injustice to Ms M.
45. In the periods I have investigated, S more likely than not received the specialist OT set out in sections F and G of his EHC Plan from January 2019 to February 2021. This is because the records show an OT target sheet and contribution to S’s annual review.
46. S did not get the specialist OT provision in sections F and G of his EHC Plan after the Trust discharged him from its OT service in February 2021. This was fault by all three organisations for the following reasons.
• There was no coordination between the Trust, Council and ICB to prompt a formal review and amendment of the OT sections in S’s EHC Plan if the Trust’s OT professionals considered S no longer needed specialist OT provision. This is not in keeping with the organisations’ duty to co-operate.
• The Council and ICB failed to ensure S received the OT in sections F and G of his EHC Plan. This was contrary to their duties under section 42 of the Children and Families Act 2014. The Trust may have decided that S no longer met the criteria for its OT service. But this does not absolve the Council and ICB from ensuring that S received the OT in his EHC Plan while the Plan contained OT provision.
• We do not expect the Council and ICB to keep a ‘watching brief’ on the provision they have outsourced to others such as schools and health providers. But we do expect them to check at least yearly through the review process. In this case, they had the opportunity to note through three annual reviews that the OT service had discharged S. They failed to do so.
47. We cannot quantify what OT provision S missed out on because of these faults. This is because there are too many variables of what could have happened, had there been no fault. The Council could have amended S’s EHC Plan in 2021 to remove specialist OT support on the Trust’s advice. This would have given Ms M a right of appeal to the SEND Tribunal. Alternatively, the Council could have commissioned a different OT provider or even amended the plan to keep specialist OT provision but change the nature of it. The possibilities branch out too much for us to say what would have happened, even on a balance of probabilities. The private OT assessment of October 2023 identified S’s need for specialist OT provision at that time. But that does not mean he had the same needs going back to 2021.
48. Taking all this into account, I consider the injustice arising from the faults in OT provision is one of avoidable and distressing uncertainty for Ms M. Uncertainty about what provision S missed out on, what he could have received, and whether his progress and wellbeing might have been better, had there been no fault.
49. The ICB has told us its SEND team has received extra resources following a reorganisation in 2025. It said this will enable it to carry out EHC Plan audits more robustly in the future.

Complaint handling

50. Councils must publish a Local Offer. This sets out in one place information about provision across education, health and social care for children who have SEN or are disabled. It must include the procedure for making complaints about the services and provision mentioned in the Local Offer. (The Special Educational Needs and Disability Regulations 2014.) The Council publishes its Local Offer on its website.
51. The Ombudsmen consider it good practice for councils and NHS bodies to jointly consider complaints about both health and education, where that is appropriate and the complainant consents. Organisations may have good reasons for not responding to complaints jointly.

What happened; was there fault causing injustice?

52. Ms M complained to the Council and Trust in December 2023.
53. The Council’s local complaints policy contains the following points relevant to this complaint.
• The Council will acknowledge complaints within five working days.
• The Council will try to respond to Stage 1 complaints within 10 working days of acknowledgement and to Stage 2 complaints within 20 working days of acknowledgement. Where the Council cannot keep to those timescales, it will write and keep the complainant informed of progress.
• The Council will not usually investigate complaints about matters that happened more than 12 months before a person makes a complaint.
54. The Council did not register the complaint in December 2023 and asked Ms M to resubmit it a month later. As part of its response to her complaint, the Council explained what had happened and apologised to Ms M. Ms M tried to escalate her complaint to the second stage of the Council’s complaints process in early 2024. At first, she could not do this because a hyperlink did not work. The Council sent her a working hyperlink about 10 days later. It also acknowledged there were delays in its complaint handling that made the process more difficult and stressful for Ms M and that meant she got a final response about a month later than she should have. The Council offered Ms M £100 in recognition of the inconvenience and distress the problems in the complaints process caused her.
55. The Council did not carry out a joint investigation with NHS bodies. It told us it expedited the complaint through its complaints process because:
• there had already been a delay;
• it had received no contact from other organisations; and
• most of the complaint Ms M had put to the Council related to Council matters.
56. The Council has provided clear reasoning for not producing a joint response with NHS bodies. I find no fault in the way it decided to produce an individual response. I am satisfied the Council has already identified the problems in its handling of Ms M’s complaint and offered an appropriate remedy for the injustice arising from these.
57. The Trust’s local complaints policy has the following provisions relevant to this complaint.
• An aim to respond within 30 working days, or explain reasons for delay, agree a new response time with the complainant and keep them updated.
• The Trust will develop action plans resulting from upheld or partially upheld complaints.
• Where a complaint involves other organisations including a council, the Trust will work with the other organisations in seeking resolution.
58. The Trust registered and acknowledged Ms M’s complaint soon after receiving it in early December 2023. The Trust has told us it has no record to explain why it did not consider a joint complaint response with the Council at this time. While it would have been good practice for the Trust to consider a joint response to Ms M at the time, this is unlikely to have made a difference given the Council’s decision to respond individually.
59. The Trust wrote to Ms M in late January 2024 and extended the response time by two weeks, as it had not yet allocated an investigator. It sent Ms M another holding message two weeks later. Ms M chased for a response in mid-February. The Trust posted Ms M its response letter on 20 February and emailed her a copy the following day. This was 52 working days after Ms M complained. While this is longer than the Trust’s aim of 30 working days, it kept Ms M informed in line with its policy. Therefore, it did not act with fault.
60. In April 2024, Ms M replied to the Trust’s letter and asked to meet with the Trust. The Trust considered this would be sensible. At this point, the Trust also considered a joint approach with the other organisations involved would help ensure they worked together “to future proof provision”. The Trust contacted Ms M in early May to offer a joint meeting with all the organisations involved. It also told her it was happy to meet separately if that was what she preferred. In mid-June, Ms M confirmed she would like to meet with the Trust only. It took a few weeks to organise the meeting due to attendees’ availability. The meeting took place on 10 July. The Trust sent Ms M a letter and a transcript about a week later.
61. The overall time between Ms M’s request for a meeting and the meeting taking place was about three months. However, the Trust’s records show that during this time, it carefully considered what the most appropriate next steps would be to deal with both the complaint and with ensuring S’s needs were met in future. This, and arranging a date for a meeting, involved coordination between different parts of the Trust. It also involved gaining Ms M’s views on how to proceed. I therefore consider there are good reasons for the length of time taken to meet with Ms M and have not found fault here.
62. I have also considered the organisations’ complaint responses themselves. The responses set out the organisations’ views on Ms M’s complaints and how to resolve them in a proportionate manner. We would not be critical of this approach. The Council’s complaint response says it cannot investigate matters that happened more than 12 months ago. This does not fully reflect the discretion in its policy, under which it would not normally investigate older issues, but could in some cases decide to do so. Even if the Council had considered using its discretion, it could still have decided not to investigate Ms M’s complaints about older events. The Ombudsmen have now investigated the older matters, as far as we considered it practicable. The Council’s approach to older complaints has therefore not caused Ms M a significant detriment.
63. During our investigation, the Trust provided a further written response to Ms M. In it, the Trust acknowledged and apologised for the problems we have identified in this decision statement. It has also committed to improving its services, including:
• improved EHC Plan reviews, transition planning and training including a request to expedite its access to the Council’s EHC Plan hub; and
• improved therapist input into EHC Plan reviews.

Summary of fault and injustice

64. S did not receive day-to-day SALT provision in school during most of the autumn term of his Year 6. This was fault by the Council and ICB, but not the Trust. The Council has taken action to remedy the injustice to S from this fault by providing more intensive SALT when it discovered the problem. Ms M also suffered uncertainty and distress when she became aware S was missing out on SALT provision. This was an injustice to Ms M which has not yet been remedied. I have recommended a remedy for Ms M in the section below.
65. S did not receive any of the specialist OT specified in his EHC Plan between February 2021 and December 2023. This was fault by all three organisations. We cannot now take a view on the injustice to S, even on balance of probability. The injustice to Ms M is a distressing uncertainty. The Trust has already apologised for this but I consider this does not fully remedy Ms M’s injustice. I have recommended a remedy for Ms M in the section below.
66. The Council delayed dealing with Ms M’s complaint. It has apologised and offered her £100 in recognition of the avoidable time, trouble and frustration this caused her. This is an appropriate remedy for this issue.

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Agreed actions

67. To remedy the injustice to Ms M, the organisations will take the following actions within two months of my final decision.
• The ICB will write to Ms M to apologise for the faults and injustice I have identified. 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.
• The Council will pay Ms M £550. This comprises £250 in recognition of the uncertainty and distress caused by S not receiving day-to-day SALT in school in the autumn 2023 term, £200 in recognition of the uncertainty caused by the lack of specialist OT support between February 2021 and December 2023, and the £100 already offered through the Council’s complaints process.
• The ICB will pay Ms M £450. This comprises £250 in recognition of the uncertainty and distress caused by S not receiving day-to-day SALT in school in the autumn 2023 term and £200 in recognition of the uncertainty caused by the lack of specialist OT support between February 2021 and December 2023.
• The Trust will pay Ms M £200 in recognition of the uncertainty caused by the lack of specialist OT support between February 2021 and December 2023.
68. The ICB and Trust are already taking steps to improve their services for the future. I have therefore not made any additional service improvement recommendations for those two organisations. However, within two months of our final decision:
• the Trust will share a copy of our final decision and its action plans with NHS England and the Care Quality Commission. It will also send its action plan to the Ombudsmen and Ms M;
• the ICB will share a copy of our final decision and its action plans with NHS England. It will also send its action plan to the Ombudsmen and Ms M.
69. To prevent similar faults affecting others, the Council will within three months of our decision review its process for engaging with EHC Plan annual reviews, to ensure it has a robust way to:
• check whether children and young people had received the special educational provision in section F of their EHC Plan; and
• identify significant gaps between the provision EHC Plans say that commissioned services should be delivering, and what they are actually delivering.
70. The organisations should provide us with evidence they have complied with the above actions.

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Final decision

71. I have found fault with the organisations for lack of day-to-day SALT provision, lack of specialist OT provision and delay in complaint handling. The organisations have taken some steps to remedy individual injustice and improve services already. The organisations have agreed to provide further remedies to Ms M and make further service improvements. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman