The Ombudsman's final decision
Summary: The Council was at fault in failing to secure the therapeutic provision included in child Y’s Education, Health and Care (EHC) Plan. This fault caused Y a loss of therapeutic provision, and their mother, Mrs X, frustration and uncertainty. The Council agreed to apologise, make a payment to remedy the injustice caused by its fault, and ensure provision is secured in future.
The complaint
Mrs X complained that the Council failed to secure all the special educational provision (specifically, the Speech and Language Therapy and the Occupational Therapy) included in her child, Y’s, final (amended) Education, Health and Care (EHC) Plan. Mrs X says the Council’s failing meant that Y has not developed the basic self-care skills that the agreed provision was supposed to address.
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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended) 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.
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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. I discussed Mrs X’s complaint with her on the telephone.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
Law, policy and guidance The Tribunal The First-tier Tribunal (Special Educational Needs and Disability) (SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
EHC Plan A child or young person with special educational needs (SEN) 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 (section B), education (section F), or the name of the educational placement (section I). Only the Tribunal or the council can do this.
Maintaining the EHC Plan 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) Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) says the provision should be in place from the date the final EHC Plan is issued. In R (on the application of BA) v Nottinghamshire County Council [2021] EWHC 1348, a judicial review about the Council’s Section 42 duty, the Court rejected the Council’s argument it only had to put provision in place within a reasonable time rather than immediately. The Court found the five-week period built into the SEND Regulation 44 following a Tribunal decision to issue an amended EHC Plan was designed to allow time for implementation and the bulk of the child’s provision, at least, should have been in place within that time.
What happened This section sets out the key events in this case and is not intended to be a detailed chronology. I have not investigated events before November 2024 which are included for context only.
The Council issued a final (amended) EHC Plan for Y in July 2023. Mrs X appealed sections B, F and I of this Plan. Y started at a special school in September 2024. The Tribunal ordered changes to the Plan on 4 November 2024.
Following the Tribunal order, the Council issued a final (amended) Plan for Y on 4 December 2024. The Plan included in-classroom support and direct/indirect therapeutic provision. The therapeutic provision included in the Plan was: Speech and Language therapy (SALT): 24 hours per year, consisting of: Three blocks of five direct therapy sessions (15 hours); Direct sessions twice each term for modelling of strategies and interventions to support phonological awareness (a skill allowing children to recognise and work with spoken words) and language skills in school (three hours per year); and Report writing and attendance at the annual review of Y’s EHC Plan (six hours per year).
Occupational Therapy (OT): Individual occupational therapy intervention by a Paediatric OT, to be provided on at least a weekly basis, in blocks of 12-15 sessions. Sessions should last 45 minutes, with an additional 15 minutes for documentation and planning. The need for ongoing treatment should be decided at the end of each treatment block; and An individualised “sensory diet” to be devised and closely monitored by the treating OT, which needs to be implemented in school, across the curriculum. This would require the OT to monitor Y fortnightly for 30 minutes for the first term and then half termly for an hour.
Mrs X emailed the Council throughout December 2024 and January 2025 to ask how and when it would secure the therapeutic provision.
She submitted a formal complaint about the lack of therapeutic provision in late January.
The Council responded at stage one of its complaints procedure in early February. It upheld Mrs X’s complaint that it had not yet secured the therapeutic provision included in Y’s Plan, and said: The Council had only become aware that Y’s special school would not be able to deliver the recommended therapies at the end of the appeal process; The Council was searching for available therapists, and would continue to do so, but: There were national shortages of trained SALTs and OTs within both the NHS and the independent market, and Not all independent therapists would agree to work under council commissioning contracts.
If she wished, Mrs X could suggest specific services for the Council to consider, or she could request a personal budget to take control of commissioning the provision directly.
Mrs X remained dissatisfied and escalated her complaint.
The Council responded at stage two in early March. It said: The Council had written to Mrs X in late February, detailing the efforts it was making to secure the provision. It had contacted all known local providers.
It had identified a SALT provider and it would confirm this to Mrs X shortly.
It still had not identified a provider who could fulfil the “full therapy allocation” but was making arrangements with a provider who could provide monthly sessions in the interim.
If Mrs X remained dissatisfied, she could complain to the Ombudsman.
SALT provision was secured from April 2025.
OT provision was secured in May 2025. Mrs X told me that only three sessions were delivered before the therapist went on sick leave. The Council’s records suggested that weekly sessions were arranged until either late June (eight sessions) or late July 2025 (eleven sessions), after which the therapist went on sick leave.
Mrs X chased the Council regarding alternative therapeutic provision until October 2025, when she approached the Ombudsman.
The Council continued to contact OT providers between July and November 2025, but without success.
In December 2025, the Council secured new OT provision for Y to begin in February 2026. Mrs X told me that she had sourced this provision after the Council had told her the provider did not have any availability.
Mrs X told me that the new OT provider had delivered sessions only fortnightly, rather than “at least weekly”, as set out in Y’s EHC Plan.
She said that, although Y was now 10 years old, they could not dress, eat, or use the toilet unaided. She said these difficulties were what SALT and OT had been supposed to address.
In its response to my enquires, the Council told me that, whilst it had “experienced significant difficulties identifying providers with capacity to deliver the provision”, it recognised that “these commissioning difficulties do not remove its statutory duty to secure the provision specified in Section F of [Y]'s EHCP”.
My findings
The Code says the provision included within an EHC Plan should be in place from the date the final EHC Plan is issued. And so, the Council had a statutory to duty to secure therapeutic provision for Y from 4 December 2024, when it issued their final (amended) EHC Plan following the Tribunal order.
The Council did not secure SALT provision for Y until April, a delay of four months. This delay was fault.
Mrs X and the Council gave different accounts of the amount of OT provision that was delivered to Y between May and July 2025. On the balance of probabilities, I find that the Council’s own differing accounts likely stem from a discrepancy between appointments that were arranged but did not actually take place. And so, I find that the Council did not secure OT provision for Y on a consistent basis until February 2026, a delay of fourteen months.
I have seen evidence that the Council made reasonable efforts to seek suitable, available, therapeutic provision for Y throughout the whole timescale. And so, I find the Council’s fault occurred because of “service failure”. The Council was prevented from fulfilling its statutory duty by an external factor, the shortage of suitably trained and available therapists.
However, as the Council has recognised, its Section 42 duty to secure the provision in Y’s EHC Plan was absolute, immediate and non-delegable. I find the Council’s fault in failing to secure SALT and OT provision caused Y significant injustice in the form of missed therapeutic provision and caused Mrs X frustration and uncertainty.
Action
The Council has agreed that, within one month of my final decision, it will: Apologise to Mrs X for the injustice caused by its faults. 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; Make Mrs X a payment of £1000, for Y’s benefit, in recognition of the therapeutic provision they missed between December 2024 and February 2026 (one term of SALT and four terms of OT, at a rate of £200 per therapy per term); Ensure that ongoing OT provision is delivered to Y in accordance with their EHC on at least a weekly, rather than fortnightly, basis; and Make Mrs X a further payment of £200 in recognition of weekly OT sessions not delivered to Y since therapy started in February 2026.
The Council should provide us with evidence it has complied with the above actions.
Decision I find fault causing injustice. The Council has agreed actions to remedy injustice.
Investigator's decision on behalf of the Ombudsman