The Ombudsman's final decision
Summary: Miss X complains about the Council’s failure to secure Section F provision, adhere to statutory timescales, and its decision to decline her request for a personal budget. We have concluded our investigation with a finding of fault. The Council failed to ensure timely delivery of the Speech and Language Therapy (SALT) provision outlined in Section F of the Education, Health and Care Plan (EHCP), resulting in significant delay. Additionally, the Council did not meet statutory timescales for the annual review process, causing further delays in securing necessary services.
The complaint
Miss X complains about the actions of the Council, specifically regarding: The Council’s failure to deliver Section F provision for her daughter, Y; The Council’s decision to decline her request for a personal budget; and The Council’s failure to adhere to statutory timescales during the EHCP process.
Miss X would like the Council to finalise Y’s EHCP, and reimburse costs incurred as a result of the Council’s actions. Miss X would also like the Council to review its decision not to offer a personal budget.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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) 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.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)
How I considered this complaint
I considered evidence provided by Miss X and the Council, as well as relevant law, policy and guidance.
Miss X and the Council will have an opportunity to comment on my draft decision. Following comments from both the Council and Miss X, I made further enquiries to the Council. I considered all comments before making this final decision.
What I found
Relevant law and guidance Education, Health and Care Plans 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.
Statutory guidance ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says: where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment; the process of assessing a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks.
As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
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) This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
What happened The Council received a formal request for an Education, Health, and Care Needs Assessment (EHCNA) in January 2023.
The LA made the decision to proceed with the Education, Health and Care Needs Assessment (EHCNA) on 20 January 2023, within the statutory six-week period, in accordance with the SEND Code of Practice.
After the necessary assessments and consultation, the LA issued a draft EHCP in April 2023. The draft was issued approximately three months after the EHCNA decision.
Following the consultation period on the draft, the Council issued the final EHCP in May 2023, The plan was finalised after addressing any comments or amendments following the draft stage.
In November 2023, the Council received the Annual Review paperwork Y from the nursery. This initiated the process for reviewing and updating the EHCP in accordance with statutory requirements, which require an annual review of the plan.
Later in November 2023, Miss X formally raised concerns with the LA about the lack of Speech and Language Therapy (SALT) provision as outlined in the EHCP. The parent expressed dissatisfaction that the SALT services specified were not being delivered within the expected timelines. Miss X said her daughter had not received any SALT input since March 2023, and this remained the case throughout the following year.
The Council responded formally to Miss X’s complaint later in November 2023, acknowledging the delay and offering an apology. In the response, the LA detailed the reasons for the delay in SALT provision and outlined the steps being taken to address the issue.
Following the Annual Review process, the Council issued the first draft of the amended EHCP in 20 December 2023 In January 2024, the parent submitted a formal complaint to the Council regarding the failure to deliver the required provision in Section F of the EHCP, specifically the SALT services, which were not being provided in a timely manner as specified in the plan.
In January 2024, the LA sent a formal letter to Miss X declining the request for a Personal Budget. The letter explained the reasons for the decision and the circumstances under which a Personal Budget would not be approved.
In January 2024, a series of emails were exchanged between Miss X and the Council, discussing the ongoing delays in the provision of services. These emails highlighted concerns over the lack of clarity regarding when services would be delivered and the continued failure to meet the timelines outlined in the EHCP.
Another series of emails in February 2024 focused on Speech and Language Therapy and the unmet needs in Section F of the EHCP. The emails indicated frustration from Miss X and further efforts by the LA to resolve the issue, though Miss X remained dissatisfied with the lack of progress.
Following a meeting with Miss X to discuss the first draft of the EHCP, the Council issued a second draft in February 2024.
In February 2024, a meeting was held between the LA and the parents to review the second draft of the EHCP.
The Council issued the final amended EHCP on 15 April 2024. This was the final version of the plan, which reflected the latest decisions on the child’s needs and provision.
In May 2024, Miss X lodged an appeal to the SEND Tribunal, challenging the final EHCP and the handling of the provision under Section F, particularly regarding the SALT provision. This marked the start of the formal tribunal process. The Council later confirmed that SALT input was not arranged until August 2024 Analysis Section F Provision We note that Miss X lodged an appeal to the Special Educational Needs and Disability (SEND) Tribunal on 3 May 2024. In accordance with section 26(6)(a) of the Local Government Act 1974, we cannot investigate any part of the complaint that has been, or could have been, appealed to a tribunal. We have therefore not considered any issues relating to the content of the EHCP from that point onward, including the Tribunal’s findings on the appropriateness of SALT provision. However, we are satisfied that we can consider the Council’s actions prior to the appeal, specifically its failure to secure the SALT provision outlined in Section F of the EHCP in the period leading up to the appeal.
The Council and Miss X agree there was a significant delay in delivering the Speech and Language Therapy (SALT) provision specified in Section F of the EHCP. While the Council attributes some of the delay to NHS staffing issues and later administrative delays in arranging private provision, it now confirms that SALT input was not delivered between March 2023 and August 2024 — a period of around 17 months. Miss X says this meant four termly reviews were missed; the Council accepts that at least two reviews (Autumn 2023 and Spring 2024) were not carried out. Although the Council eventually funded private SALT input, this was arranged only after the parent appealed to the SEND Tribunal and was delayed further due to administrative issues. The failure to secure the specified provision throughout this period was fault.
While the Council did make contact with the NHS provider and later sought an independent assessment in response to ongoing concerns, these steps were taken after significant delays had already occurred. The duty to deliver the provision remained with the Council throughout. As a result, we find fault with the Council for failing to secure the required SALT provision in a timely manner. This likely caused frustration and uncertainty for the parent, and may have impacted on the child’s access to the support specified in her plan.
Personal Budget A request was made for sensory equipment including, toys, a peanut ball, a trampette and foods such as crushed ice and fruit. The Council says this request was declined on the basis that these resources should be provided by the nursery as part of the available offer and resources.
The Council said the setting was funded by the local authority, and the funds provided were sufficient for the nursery to provide these sources. The Council said it offered to loan the resources to the Nursery, but this was declined. The Council gave advice to Miss X and the nursery regarding the Disability Access Fund to enable purchases at the setting and sign posted Miss X to additional resources.
Miss X said the nursery did not receive the EHCP top-up funding until around eight months after the Plan was finalised, which meant it was unable to deliver key elements of provision, including SALT and sensory support. She also said the Council failed to provide promised training and that she had to provide sensory equipment herself. The Council said funding had been agreed and support was offered by the Early Years team. However, it did not provide a clear date when funding was paid or evidence of delivered training. The differing accounts suggest poor communication and record-keeping. I have not made a specific finding of fault, but the Council should reflect on how its support was managed and communicated.
The Council wrote to Miss X in January 2024 setting out its reasons for declining the personal budget. It said the nursery could deliver the provision and that additional equipment and resources could be funded through existing channels. On the face of it, this was a decision the Council was entitled to make, and the Ombudsman cannot question the merits of that decision. However, Miss X says she obtained internal Council emails through a subject access request which suggest the nursery had previously raised concerns about its ability to meet her daughter’s needs. She also referred to comments made during the annual review meeting. The Council said it relied on professional advice and the nursery’s consultation response.
On balance, there is a difference of view over what the nursery could reasonably deliver. I am not persuaded the Council clearly explained its reasons for refusing the personal budget or that its rationale fully reflected the evidence available at the time. However, I have not pursued this further, as the outcome of a reassessment is unlikely to differ and the Tribunal appeal now addresses broader questions of provision.
EHCP Process I reviewed the timeline of events during the Education, Health and Care Plan (EHCP) process and compared it with the statutory deadlines set out in the SEND Code of Practice (2015). The request for an EHC Needs Assessment was received in January 2023, and the Council made the decision to assess in January 2023, which falls within the required six-week timeframe. A draft EHCP was issued in April 2023, which aligns with the expected timescale of around 16 weeks from the initial request. The final EHCP was then issued in May 2023, within the 20-week statutory deadline.
Following the annual review of the EHCP, the Council received the review paperwork from the nursery in November 2023. In accordance with the SEND Code of Practice, the Council was required to make a decision about whether to maintain, amend, or cease the EHCP within four weeks of the review meeting, which in this case should have been no later than 11 December 2023. Although a draft EHCP was issued later in December 2023, and subsequently amended following further input, the final amended EHCP was not issued until April 2024.
This represents a significant delay of over four months beyond the statutory four-week deadline. We therefore find fault with the Council for failing to meet its statutory duty to conclude the annual review process in a timely manner.
Recommended action To remedy injustice in this complaint, the Council will: Provide a written apology to Miss X for failing to secure the SALT provision within the specified timescales. This should acknowledge the inconvenience, distress, and potential impact this failure had on the child’s development.
Provide a remedy of £600 to acknowledge missed SALT provision.
A further remedy of £300 to acknowledge distress and inconvenience caused to Miss X.
The Council will complete actions a to c within one month of the Ombudsman’s final decision. The Council will provide us with evidence it has complied with the above actions.
Decision We have concluded our investigation with a finding of fault. The Council failed to ensure timely delivery of the Speech and Language Therapy (SALT) provision outlined in Section F of the Education, Health and Care Plan (EHCP), resulting in significant delay. Additionally, the Council did not meet statutory timescales for the annual review process, causing further delays in securing necessary services.
Investigator's decision on behalf of the Ombudsman