Summary: Mrs X complained that the Council failed to ensure Speech and Language Therapy provision and other support set out in her son’s Education Health and Care Plan was put in place from September 2020. We find that the Council was at fault, resulting in a loss of special educational support. The Council offered a remedy. It has now agreed an increased remedy.

The complaint

1. Mrs X complained that the Council failed to ensure that Speech and Language Therapy provision and other support set out in her son’s Education Health and Care Plan was put in place from September 2020. As a result she says he missed out on support he should have had.

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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. 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

4. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on provision for special educational needs. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
5. 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.

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What I found

Education, Health and Care Plans

6. A child with special educational needs 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.
7. Councils have a duty to ensure the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)

Impact of the COVID-19 pandemic

8. 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’.
9. The Secretary of State issued a notice under the Coronavirus Act 2020 to give councils more flexibility in dealing with EHC Plans and provision. It temporarily changed councils’ absolute duty to ‘secure’ the education provision in an EHC Plan to one of using ‘reasonable endeavours’ to do so. This change applied from 1 May to 31 July 2020. At the end of this period, councils’ usual duties returned.

What happened

10. Mrs X’s son, B, has a diagnosis of autism spectrum disorder. His primary school, School 1, had been giving him extra support including support with Speech and Language Therapy (SaLT) and Occupational Therapy. Following an EHC needs assessment and Mrs X’s appeal to the Special Educational Needs and Disability (SEND) Tribunal, the Council issued a final EHC Plan for B on 22 July 2020.
11. On the order of the Tribunal the EHC Plan included the following provision.
• Weekly half-hour sessions to develop social communication in a small group set up and monitored at least half-termly by a qualified SaLT therapist. The group could be run by a staff member who works with B regularly.
• SaLT therapist to set language and communication targets in liaison with teaching staff and B’s parents. The therapist to review targets every term and liaise with staff and parents.
• 20.5 hours a week support from a Teaching Assistant (TA) trained and experienced in working with students with autism, 1:1 and in small groups.
12. At the end of September Mrs X contacted School 1 with concerns about whether the support set out in B’s EHC Plan was being provided. Among the issues she raised were that B had not been receiving the 20.5 hours of TA support each week as the TA had been off sick. She said she was not aware of any SaLT involvement to set targets or arrange a social communication group. Mrs X sent copy of her email to the Council.
13. The Council contacted the SaLT service on 2 October to find out why it had not been arranged. The School had told the Council the SaLT service had said it could not provide therapy until it had a referral for B. The SaLT service confirmed that as B’s case had been closed since 2019 the School or the Council needed to make another referral. The Council expressed disappointment that this was the case given that the SaLT service had attended the Tribunal hearing and agreed with the recommended provision.
14. There was a meeting at School 1 with Mr and Mrs X on 6 October to discuss the support B was receiving. The School provided them with a timetable showing the support the School would be providing. The notes of the meeting show the School confirmed the TA had been absent and it had not had a plan in place for cover. It said it had since put this right and provided the TA support. The School said it would set up the social skills group as soon as possible.
15. The following day the Council told the School it needed to make the SaLT referral. The School’s Special Educational Needs Co-ordinator (SENCO) discussed the matter with the allocated therapist who confirmed she would be able to meet and work with B. However on 20 October the therapist told the School until it had received a referral she would not able to work with B. The SENCO completed the referral form ready for Mrs X to come in and sign.
16. In the week beginning 2 November, after the October half term, the SENCO had to self-isolate because of COVID-19 and could not meet with Mrs X.
17. Mrs X asked the School what was happening about the SaLT on 9 November. The SENCO replied saying after some ‘back and forth’ the SaLT service had now confirmed it needed a referral before it could deliver the support. She asked Mrs X to come into school to sign the referral in the next couple of days.
18. Mrs X made a complaint to the Council the following day. She complained about the lack of SaLT support. She said this should not depend on a referral to the SaLT service as the Council was responsible for arranging the provision. She asked the Council to arrange for the SaLT service to contact School 1 without further delay. She also complained about lack of TA support.
19. Mrs X told the School about the complaint and said she wanted to wait for a response from the Council before signing the referral form. She said did not see why another referral was necessary as the Council had a duty to arrange the provision. The School told her the therapy could not start without the referral but it could start the social skills group in the meantime. The School urged Mrs X to sign the form. She agreed to do so but said she could not come in immediately because of work commitments.
20. On 16 November Mrs X signed the form and on the same day the School sent the referral to the SaLT service.
21. The Council replied to Mrs X’s complaint at stage 1 at the end of November. It said it was also concerned the SaLT service had not delivered the therapy but said it had been told there would need to be a new referral. The Council apologised for the misunderstanding. But it said it was not always possible to have provision in place immediately, particularly during the pandemic. Regarding the 1:1 TA support, it said as the EHC Plan was only issued in July 2020 it was unlikely the School would have appropriate staffing in place immediately as would have to recruit and train them. Again, this was difficult in pandemic conditions. The Council felt the School was able to make the arrangement “as far as possible”. It suggested Mrs X ask the School to say what support B was receiving in his timetable. The Council partially upheld the complaint. This was because it said it recognised provision was not in place at the beginning of term, but it could see the reason for this and the issues had now been remedied.
22. The SaLT service assessed the referral and wrote to Mrs X and the School on 4 December accepting the referral. It said the therapist would carry out an initial assessment and discuss it with Mrs X over the telephone. She would then receive a written report and management plan.
23. Mrs X made a stage 2 complaint on 7 December. She said the relaxation of the duty to arrange the provision in an EHC Plan ended on 31 July so the COVID-19 pandemic was not a valid reason not to deliver the support. She said B had not had any SaLT and was not receiving the 1:1 TA or small group work required in his EHC Plan since the beginning of term in September.
24. Schools went into lockdown in January 2021.
25. On 12 January 2021 the SaLT therapist contacted Mrs X by telephone to gather information as part of the initial assessment and to arrange the first therapy session. They arranged a virtual appointment as the family was isolating following a positive COVID-19 test. The first session took place by video on 22 January.
26. Mrs X received the Council’s stage 2 complaint response dated 29 January around ten days later. The Council set out the history of events concerning the referral up till when Mrs X agreed to sign the consent form. The Council said it was unfortunate there was “the initial mistake” from the SaLT therapist that held up the referral, and the need for the SENCO to self-isolate. It apologised for the delay but said this was not the fault of the Council. However it said it would “ensure that processes are very clear in the future so that similar situations do not arise”. The Council did not uphold the complaint about lack of TA support as it said gaps in provision were likely due to absences due to COVID-19. It said once schools reopened it would ensure there was an urgent meeting at the School to discuss how provision in the EHC Plan would be delivered.
27. The Council says all the SaLT required in the EHC Plan was provided from January until the end of the summer term, with sessions delivered virtually.
28. Mrs X has provided a copy of the SaLT care plan agreed with the therapist and school staff in February 2021.

Council response to the Ombudsman

29. The Council said its view was that as the SaLT service was represented at the Tribunal hearing the service was aware what provision it needed to put in place in line with the EHC Plan. The Council was not aware that a re-referral was necessary and the SaLT service did not tell it that was the case. The Council believed the Tribunal Order would have been enough for the SaLT service to arrange the support for B.
30. However it said it recognises that the delays in B receiving the SaLT support were unnecessary. It says it will put in place procedures so that where a Tribunal hearing decides there is a need for therapies, the Council will identify whether there is an open referral or whether a re-referral is necessary.
31. Regarding the TA support, the Council says School 1 had an existing cohort of staff that would have been used on a rota to provide support, as explained at the meeting in October 2020. It says the timetable explains the support B would receive from the date of the meeting, but the School had put support in place for him from the first day of term.
32. The Council said it was regrettable it took a few weeks to put the SaLT provision in place and wished to apologise to the family for this. It offered Mrs X £250 to recognise the distress caused and her time and trouble in pursuing her complaint. It offered £200 to recognise the missed SaLT provision at the beginning of the autumn term.

Analysis – was there fault causing injustice?

33. By September 2020 the Council’s full duty to arrange the provision in B’s EHCP had resumed. It says it expected the SaLT service to make the arrangements as it was aware what it needed to do from the Tribunal hearing. However the Council was ultimately responsible for securing the provision. Its failure to check whether a referral was necessary was fault which led to delay in delivering the provision. The fact that the Council is introducing new checking procedures indicates that it accepts this.
34. Even after the Council became aware at the end of September that the SaLT was not in place, it did not take all the necessary action. The SaLT service said it could accept a referral from the Council or the School, but the Council referred the matter to the School. If it had made the referral once it was aware of the problem, the issue could have been resolved earlier.
35. On balance I consider that if the Council had checked whether the SaLT service needed a referral at the time it issued the final EHC Plan in July, and had then made the referral itself, it is likely arrangements would have been in place for the beginning of term in September. The initial assessment and conversation with Mrs X could have taken place then, and the sessions could have started in early October. As it was, the initial assessment and first session did not take place until mid to late January 2021. So I consider that B missed out on SaLT support he could have been receiving for around two and half months.
36. Regarding the TA support, the Council has given different responses about whether this was provided in line with B’s EHC Plan. It told Mrs X any gaps in provision were likely to be related to COVID-19. It has told the Ombudsman the support was in place from existing school staff from the beginning of September. Yet the minutes of the meeting of 6 October 2020 show the School accepted it had failed to provide cover when the TA was off sick. Mrs X was still complaining about lack of TA support in December 2020. So it is unclear from the information I have seen so far when the TA support set out in the EHC Plan for 1:1 and small group work started. However I do not need to investigate this issue further as the support is now in place and any lack of provision coincided with the lack of SALT. So the remedy set out below is intended to reflect partial loss of provision under the EHC Plan, whether SaLT, TA support or both.

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Agreed action

37. I welcome the Council’s offer of an apology and payment to Mrs X, and the proposed improvement in procedures. Taking account of the Ombudsman’s guidelines I recommended an increase in the payment offered for loss of support. The Ombudsman usually recommends between £200 and £600 per month, taking into account factors such as the child’s special educational needs and whether they received any education during the period.
38. The Council has agreed that within six weeks of the decision on this complaint it will:
• write to Mrs X with an apology for the faults found;
• offer her £500 to recognise the loss of support to B; and
• offer her £250 to recognise her distress and time and trouble.
39. It has also confirmed it will have procedures in place so that following Tribunal decisions ordering therapeutic provision it will identify whether there is an open referral to a therapy service or whether a re-referral is necessary. It will also arrange a meeting with senior officers in its SEND service and the providers manager of the Therapy Team to discuss drafting a policy to ensure therapy services ordered by a Tribunal can start without needing a further referral.

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Final decision

40. I have found there was fault by the Council causing an injustice to Mrs X and her son. I am satisfied with the action the Council has agreed to take to remedy the injustice and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman