Summary: Ms D complains the Council failed to ensure she received speech and language therapy as set out in her Education, Health and Care Plan during the COVID-19 pandemic. Ms D says this has had a detrimental effect on her education, delaying her entering exams. We have found fault causing injustice. The Council has agreed to make a payment to Ms D and her mother.

The complaint

1. Ms F complains on behalf of her adult daughter, Ms D, that the Council failed to ensure she received provision in her Education, Health and Care Plan. In particular the speech and language therapy was not provided for six months. Ms F says this has had a detrimental effect on Ms D’s education, delaying her entering exams.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
5. If we are satisfied with a council’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)

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How I considered this complaint

6. I spoke to Ms F about her complaint and considered the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice, January 2015 ("the Code")
• The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020
7. Ms F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Special educational needs

8. A child or young person aged 19 to 25 with special educational needs (SEN) may have an Education, Health and Care Plan (EHC plan). This sets out the young person's needs and what arrangements should be made to meet them. The council is responsible for making sure that all the arrangements specified in the EHC plan are put in place.
9. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
10. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Impact of COVID-19

11. The Coronavirus Act 2020 temporarily modified the duty in section 42 of the Children and Families Act 2014 to arrange or secure the SEN and health provision in an EHC plan. The change meant the absolute duty on a council to secure or arrange SEN provision was modified from 1 May to 31 July 2020 to a requirement to use 'reasonable endeavours' to do so.
12. In March 2020, all schools were ordered to close, retaining some staff to provide education for the children of key workers and some 'vulnerable' children. These included children with an EHC plan. Schools did not have to allow all children with EHC plans to attend. Instead, the government asked councils to carry out a risk assessment with children who had an EHC plan to determine whether their needs could be met at home and whether they would be safer there than attending an educational setting.

What happened

13. Ms D is autistic, has hearing loss which causes speech problems, and has other disorders, one of which causes extreme fatigue. She uses British Sign Language and interpreters. Ms D was being home schooled, with ten hours per week of tuition.
14. An EHC plan was issued in 2018 when Ms D was 18 years old. She appealed it and in January 2020 the SEND Tribunal ordered the Council to include in the plan “a weekly therapy session of at least 1 hour with a speech and language therapist with knowledge and experience of working with young people with Autism and hearing loss. This level of provision must continue until a comprehensive speech and language assessment has been carried out and subsequent recommendations are implemented.” The final amended EHC plan was issued on 4 February 2020.
15. The Council says that occupational therapy advice and support was in place from March 2020 and, following this, equipment was provided to Ms D in June 2020.
16. The Council has sent me case records which show that from mid-February 2020 to mid-March 2020 its commissioning team contacted five providers to secure the speech and language therapy (SALT) provision and BSL interpreting for Ms D. The providers either did not respond or said they were unable to meet the requirement specified in the EHC plan because they did not have capacity or because they did not have the relevant experience of autism and hearing loss. There is no evidence of any action being taken by the commissioning team during the coronavirus lockdown from mid-March to mid-May 2020.
17. A COVID-19 risk assessment was completed on 29 April 2020. This found Ms D was shielding and therefore had to learn remotely.
18. In June one provider offered to assess Ms D but following initial contact it was determined they provided mental health support, rather than specialising in SALT, so could not meet Ms D’s needs. In late June, another provider offered to assess Ms D. It then carried out a SALT assessment with a BSL interpreter on 22 July.
19. The records show that during August and September the Council was considering quotes from the providers. Funding was approved on 28 September and the SALT provision was eventually put in place from 23 October 2020. The Council says it was difficult to find days when the SALT therapist, BSL interpreter and Ms F were all available.

Ms F’s complaint

20. Ms F complained to the Council on 14 October that the SALT, which should have started in February 2020, was still not in place. The Council responded on 9 November. It apologised for the delay in providing the SALT, which had been caused by problems finding a provider and problems caused by the pandemic.
21. Ms F remained dissatisfied and asked for her complaint to be escalated. She said there was no evidence that the Council had looked for a therapist for many months and that after the EHC plan was issued nobody seemed aware of its contents. She said Ms D could have had remote therapy during the period when councils did not have to make the exact provision set out in the EHC plan.
22. The Council sent its final complaint response on 9 December. It accepted that the SALT should have commenced in February 2020. The new regulations then came into force on 1 May 2020, so it said there was twelve weeks when Ms D should have been provided with SALT prior to the easement permitted by the Act. It therefore offered to provide two hours of SALT per week for twelve weeks.
23. The Council apologised that Ms D and Ms F had not been kept updated about the Council’s efforts to source a provider and offered £200 to acknowledge the inconvenience this had caused. It would remind officers of the importance of keeping customers updated.
24. Ms F complained to the Ombudsman. She said Ms D’s fatigue meant she was unable to cope with two sessions of SALT per week. The SALT was important as Ms F’s speech was difficult for a dictation machine to pick up. She therefore needed SALT to help with that so she could do exams to access a college course.

My findings

25. The Council is responsible for making sure that provision specified in the EHC plan is secured. Prior to the Coronavirus Act 2020, the duty was absolute. The Council could not discharge its duty by showing it tried but failed to put the support in place. This means that, despite the efforts of the commissioning team, the Council failed to provide the weekly SALT therapy from February 2020. This was service failure, so I find fault.
26. The Coronavirus Act 2020 meant that, from 1 May to 31 July 2020 councils only had to show they had made 'reasonable endeavours' to discharge the duty to provide the support in EHC Plans.
27. Although the statutory period came in on 1 May 2020, the Ombudsman's general view is that we will not criticise a council for not securing the full provision in a young person's EHC Plan from 23 March to 1 May. This is because the exceptional circumstances at the time often made it impossible for support to be provided. However, we will consider each case on its individual merits.
28. The Council made attempts to secure SALT from mid-May to the end of July and I find that for that period it satisfied the requirement to use reasonable endeavours to secure the provision in Ms D’s EHC Plan.
29. But I have seen no evidence of action from mid-March to mid-May. In addition, the SALT assessment was carried out on 22 July but provision was not put in place until 23 October. Although the Council was agreeing the funding and arranging availability, I can see no good reason why this took three months. I therefore find there was delay here.
30. Although the Council was making reasonable endeavours to secure the provision in summer 2020, if there had been no fault the SALT would have already been in place in February 2020. I therefore find that because of fault by the Council, Ms D lost out on weekly SALT for seven school months. This is her injustice.
31. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
32. The Ombudsman's guidance on remedies recommends a payment in acknowledgement of lost education of £200-600 per school month. I consider an appropriate figure in this case to be £200 per month. In determining this, I have taken into account that the lack of SALT affected Ms D’s ability to do exams.
33. Ms F has also been caused an injustice because she has experienced distress and frustration by the Council's failure to support Ms D properly.

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Agreed action

34. Within a month of my final decision, the Council has agreed to pay Ms D £1,400 to acknowledge the loss of SEN support for seven school months and pay Ms F £200 to acknowledge the time and trouble and frustration she has been caused.

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Final decision

35. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman