Summary: Mrs Y complains on Miss X’s behalf about the Council’s failure to secure speech and language provision for Miss X, as per her Education, Health and Care (EHC) Plan. The Council’s failure to arrange provision in the EHC Plan is fault. This has caused an injustice to Miss X and also Mrs Y. The Council has agreed to remedy the injustice caused and it has agreed to implement service improvements.

The complaint

1. The complainant, Miss X, who is represented by Mrs Y, complains the Council has failed to provide Speech and Language Therapy (SaLT) to Miss X since February 2020.

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The Ombudsman’s role and powers

2. 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)
3. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. 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)
6. 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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How I considered this complaint

7. I considered Miss X’s complaint and the information she provided.
8. I considered the information I received from the Council in response to my enquiries.
9. Miss X and the Council had the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

10. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section F sets out the special educational provision needed by the child or the young person and Section I the name and/or type of school.
11. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
12. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
13. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.
14. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance, The SEND Code of Practice (‘the Code’).
15. The Code states that reviews must focus on the child or young person’s progress towards achieving the outcomes specified in the Plan and the review must also consider whether these outcomes and supporting targets remain appropriate and on what changes might need to be made to the support that is provided to help them achieve those outcomes, or whether changes are needed to the outcomes themselves.

Personal budget and direct payments

16. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

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What happened

17. Miss X has an EHC Plan maintained by the Council. Miss X’s Plan says she requires Speech and Language Therapy (SaLT) provision. Mrs Y complains the Council has not arranged any SaLT provision for Miss X since February 2020.
18. In September 2020, Miss X transitioned to a college placement that was in a different local authority area.
19. Mrs Y complained to the Council in September 2021 about the absence of any SaLT provision for Miss X. The Council provided her with a payment of £700 to cover the missed provision and for Mrs Y to arrange provision privately until the new provision was arranged in January 2022.
20. The provision was not arranged by the Council.
21. After an annual review, the Council issued Miss X’s final amended EHC Plan in October 2022. The final Plan said Miss X would receive six hours of direct input delivered by the SaLT Team. The Council advised Mrs Y that SaLT for Miss X would be arranged.
22. In January 2023, the Council advised Miss X that Company 1 would provide SaLT. Between February 2023 and June 2023, Mrs Y chased Company 1 and the Council to progress this provision. Mrs Y complained to the Council in June 2023 about the absence of any progress. Mrs Y did not receive a response to this complaint and she complained again in August 2023.
23. The Council upheld the complaint and apologised for the standard of service it provided. It said that it should have arranged alternative SaLT for Miss X from September 2020 but, due to an error, her SaLT needs were not reviewed or updated. Consequently, the Council removed all information regarding SaLT from Miss X’s EHC Plan. The Council says it should not have done this and it apologised. The Council said it would source an independent SaLT provider to assess Miss X’s current speech and language needs before arranging the provision.
24. The Council offered Miss X £300 as a symbolic remedy for the six direct speech and language sessions outlined in her previous EHC Plan that it did not provide. It also offered an additional £100 to recognise the time and trouble taken in pursuing the complaint and the distress it had caused.
25. The Council also said that due to the passage of time it would not be appropriate to consider providing additional sessions and instead, with a new assessment, any recommended provision will be made with Miss X’s needs as they are at the time of the assessment. Mrs Y was advised in August 2023 a new assessment would be arranged. I asked the Council if this assessment had been arranged. It advised me in February 2024 that it had not.

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Analysis

26. The evidence shows that the Council stopped providing SaLT to Miss X in September 2020 when she transitioned to a college that was in another local authority area. The Council should have ensured all the provision in the EHC Plan was in place when she moved settings.
27. Although the Council has previously said it should have arranged SaLT for Miss X, in response to my enquiries it advised me that it had found some discrepancies in the provision provided to her. The Council told me that the last SaLT report it has on file says that SaLT provision had been delivered and continuation was not recommended and therefore the provision should not have been included in subsequent EHC Plans for Miss X. The Council has asked the Ombudsman to consider this misalignment between Y’s Plan and the last SaLT report on file.
28. The Council’s change in view because of my enquiries brings into question the adequacy of the annual reviews for Miss X’s EHC Plans. All the relevant and up to date information should have been reviewed before deciding what provision was required to meet Miss X’s needs. It should not have taken an Ombudsman’s investigation for this information to be reviewed properly. This should have been done in the annual reviews. I have recommended a service improvement to address this matter.
29. I have reviewed the report the Council refers to and I note that it is dated February 2020. It does state that SaLT provision had been provided to Miss X but this relates to the time period before February 2020. Miss X’s complaint is that SaLT provision has not been delivered since February 2020, not before.
30. The Council also says the report does not recommend a continuation of the provision and therefore no SaLT provision should have been included in subsequent EHC Plans for Miss X. However, on reviewing the report, I have found it proposes six hours of SaLT to be delivered over the academic year, to Miss X, by the college she was due to start in September 2020.
31. It is not for the Ombudsman to decide what provision should be included in an EHC Plan, it is for the Council to decide after considering all the relevant evidence it has before it. The Council has a duty to provide the provision contained in an EHC Plan. Therefore, the Council should have arranged SaLT for Miss X from February 2020, as stipulated in her final EHC Plans. Failure to do so is fault.
32. In September 2022 the Council removed all reference to SaLT from Miss X’s EHC Plan because the provision had not been provided. The Council acknowledged it should not have done this and it apologised to Mrs Y. The SaLT provision was subsequently put back into Miss X’s EHC Plan. This caused avoidable distress to Mrs Y.
33. Additionally, the Council said in August 2023 that it would arrange an assessment of Miss X’s SaLT needs so it can secure the appropriate provision accordingly. In response to my enquiries, the Council advised me on 20 February 2024 that it still had not arranged the assessment. This is also fault.
34. I have used my discretion to investigate matters older than 12 months because the same fault has occurred repeatedly since February 2020 despite the Council acknowledging the failure to provide the provision, providing a remedy payment to acknowledge the lost provision and saying it will arrange an assessment of Miss X’s needs. I am not satisfied the Council has made reasonable efforts to resolve the issue. The fault and the resulting injustice to Miss X and Mrs Y is ongoing.
35. I have taken several factors into account when formulating an appropriate remedy for the injustice caused. Mrs Y has raised the matter repeatedly with the Council, she has complained on several occasions and raised her concerns about the lost provision at the annual reviews. This demonstrates the Council has allowed the matter to drift significantly. During this period there was a loss of provision for Miss X which is likely to have had a detrimental impact on her progress. I note that in the last SaLT assessment of Miss X from 2015 she presented with severe spoken language difficulties and was assessed at the 1st percentile. The Council has not assessed Miss X again despite saying it would arrange an assessment. I have also taken into consideration Miss X’s circumstances including the transition to college.
36. The identified faults have caused avoidable distress to Mrs Y and she has gone to a great deal of time and trouble in chasing the Council and bringing her complaint to the Ombudsman. I do not consider the Council’s remedy payments adequately remedy the ongoing injustice to Miss X and to Mrs Y.

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Agreed action

37. To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will:
• Pay Mrs Y £350 for the avoidable distress, time and trouble; and
• Pay Miss X £4,300 for the loss of provision (£100 for every month since September 2020).
38. The Council has also agreed that, without delay, but within four weeks of this final decision, it will arrange a speech and language assessment for Miss X and, if necessary and without delay, it will arrange the relevant SaLT provision to meet her assessed needs.
39. The Council has agreed to pay Miss X either:
• £100 every month until the first session of SaLT is delivered; or
• If after the SaLT assessment, the Council decides Miss X does not require any SaLT provision, it will pay Miss X £100 every month until it makes this decision.
40. For the avoidance of any doubt, the first payment should be made on or around 15 May 2024 and then every four weeks thereafter.
41. The Council has also agreed to review its annual review process of EHC Plans and take any necessary steps to ensure that they are conducted in accordance with the Code.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. The Council is at fault for failing to secure the speech and language provision in Miss X’s EHC Plan. The Council has agreed to remedy the injustice caused by the fault. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman