Summary: Ms X complains that the Council delayed in putting in place the occupational and speech and language therapies provision set out in her child, Y’s, Education, Health and Care Plan which has disadvantaged them. The Council was at fault as it did not deliver the occupational and speech and language therapies between December 2023 and February 2024 which disadvantaged Y. The Council has appropriately remedied the injustice to Y and Ms X by making a payment of £1860.50 for the missed provision. We do not have jurisdiction to consider the lack of provision from February 2024 onwards as Ms X has appealed to the SEND Tribunal.

The complaint

1. Ms X complains the Council delayed in putting in place the provision in section F of her child’s Education, Health and Care Plan. As a result, Ms X’s child did not receive the speech and language therapy and occupational therapy they required which disadvantaged them.

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The Ombudsman’s role and powers

2. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
3. 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)
4. 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)
5. 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)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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(i), as amended)
8. 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

9. I have not considered Ms X’s complaint about the Council refusing to issue an Education Health and Care (EHC) Plan for her child in 2022. Ms X appealed against this decision to the Tribunal. So, I do not have discretion to consider this complaint.
10. I have investigated events from December 2023 to 14 February 2024 when the Council issued a final EHC Plan for Y which named their secondary school. I have not investigated events after 15 February 2024 for reasons I explain at paragraphs 25 and 26 below.

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How I considered this complaint

11. I have:

• Considered the complaint and the information provided by Mrs X.
• Made enquires of the Council and considered the information provided.
• Invited Mrs X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Law and guidance

12. A child or young person with special educational needs may have an 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
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)
14. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty.

What happened

15. The following is a summary of the facts relevant to my consideration of the complaint. It does not include everything that happened.
16. In 2023, a SEND Tribunal ordered the Council to issue an EHC Plan for Ms X’s child, Y. The Council issued the EHC Plan in December 2023. Section F of the EHC Plan set out the special education provision required by Y. This included Speech and Language Therapy (SLT) and Occupational Therapy (OT). The Council issued a further EHC Plan in February 2024 to name the high school Y would transfer to in September 2024.
17. Ms X made a complaint to the Council in February 2024. She raised that the school had not made the provision set out in Section F of Y’s EHC Plan. Ms X said Y had not received any SLT or OT provision and some other provision.
18. The Council considered Ms X’s complaint through its two stage complaints procedure. The Council acknowledged it had not provided the SLT and OT provision due to difficulties in sourcing providers. The Council offered a payment of £620 to Ms X which was the cost of the missed OT and SLT from December 2023. It also offered a payment of £50 to Ms X to acknowledge the time and trouble caused by the delay in putting into place the provision. The Council later increased the payment to £1860.50.
19. I understand the Council agreed to provide Ms X with a personal budget for her to directly commission the SLT and OT provision. I understand Ms X was also unable to find an SLT provider.
20. Ms X appealed the contents of sections B and F of the EHC Plan issued in February 2024 to the Tribunal. As part of the appeal process the Council and Ms X entered into mediation. The record of the mediation meeting shows the Council considered increasing Y’s SLT provision from 30 to 45 minutes per session to enable Ms X to find a provider. The Council said it would further compensate Ms X for the missed 6 sessions of OT and 4.5 hours of SLT.
21. I understand Y’s SLT started in January 2025. The Council’s record of a call with Ms X in December 2024 notes that it would consider a remedy for the missed SLT during the Autumn Term.
22. In response to my enquiries, the Council has said it is not experiencing general problems with commissioning OT and SLT. But it was unable to ensure the OT and SLT provision was delivered to Y because it was difficult to find therapists who would deliver sessions of 30 minutes. It increased Y’s sessions to 45 minutes to enable Ms X to find therapists.
23. The Council has also provided evidence to show the other provision in section F was delivered by the school.

Analysis

OT and SLT provision between 29 December 2023 to 14 February 2024

24. The Council has a duty to ensure a child or young person receives the provision set out in Section F of their EHC Plan. Y did not receive the OT and SLT provision set out in his EHC Plan from when his final EHC Plan was issued in December 2023. This is fault which will have disadvantaged Y as he did not receive the provision he required. The Council made a payment of £1860.50 to Ms X to acknowledge the loss of SLT and OT provision for Y. I consider this is an appropriate and proportionate remedy to acknowledge the disadvantage caused to Y and the distress caused to Ms X. This remedy also exceeds what we would normally recommend for a lack of OT and SLT provision for this period of time.

OT and SLT from 15 February 2024 onwards

25. We do not have discretion to investigate the provision of OT and SLT to Y from 15 February 2024 to date. This is because Ms X has appealed to the Tribunal and raised the issue of the Council not making the OT and SLT provision in her appeal.
26. We also cannot investigate the consequences of a decision which is the subject of an appeal to the Tribunal. The Council’s failure to provide the OT and SLT is a direct consequence of its decision to include 30 minute sessions of OT and SLT in section F. It is this decision that has partly led to Ms X’s appeal. So, I cannot separate the Council’s failure to make the OT and SLT provision from Ms X’s appeal to the Tribunal. I therefore cannot investigate Ms X’s complaint from 15 February 2024. This is when the Council issued the EHC Plan which Ms X has appealed and notified her of the appeal rights.

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Final decision

27. I have completed my investigation and uphold Ms X’s complaint that the Council failed to make OT and SLT provision for Ms X’s child between 29 December 2023 and 14 February 2024. We do not have jurisdiction to investigate the Council’s failure to make OT and SLT provision from 15 February onwards.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman