Summary: Mrs B complained that the Council failed to ensure therapies detailed in her daughter, C’s Education, Health and Care plan were provided. We find the Council delayed by three months in providing speech and language therapy and failed to provide any sensory integration therapy. The Council has agreed to provide sessions to make up for the missing therapies and pay Mrs B £500.

The complaint

1. Mrs B complains that Wirral Metropolitan Borough Council (the Council):
• delayed in finalising an Education, Health and Care (EHC) plan for her daughter C, following the tribunal hearing in November 2018; and
• failed to ensure Speech and Language Therapy (SALT) and Sensory Integration Therapy (SIT) were provided to C in accordance with her EHC plan. She believes this contributed to the breakdown of the placement.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
4. 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
5. The Council should complete the EHC assessment process within 20 weeks.
6. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
7. 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

8. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. I have written to Mrs B and the Council with my draft decision and considered their comments.
9. 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

10. C has Autistic Spectrum Disorder and was struggling to manage at school. Mrs B appealed to SEND against the Council’s refusal to carry out an assessment of her needs. On 7 November 2018 the Tribunal upheld the appeal and ordered the Council to produce a draft EHC plan within five weeks.
11. The Council produced a draft plan on 12 December 2018 in accordance with the order. This included weekly sessions of both speech and language therapy and sensory integration therapy. The final EHC plan was issued on 12 March 2019 naming C’s current mainstream school.
12. Mrs B appealed against the educational needs and provision sections of the EHC plan on 3 April 2019. At this stage she did not dispute the placement as she considered with the extra therapies C would be able to cope.
13. In January 2019 the Council had obtained a quotation for the sensory integration therapy sessions and asked the school if it could find anything cheaper. The sessions were never provided.
14. The speech and language therapy was delayed due to a shortage of therapists but began on 11 June 2019.
15. By this point C had deteriorated: she was unable to manage the school environment and was self-harming. Mrs B considered the mainstream provision was no longer suitable and appealed against the placement as well.
16. C started at a specialist school in September 2019. The final EHC plan has not yet been agreed and the appeal is still ongoing.
17. Mrs B’s representative, Mrs D, complained to the Council at the end of May 2019 about the failure to provide the therapies detailed in the EHC plan. The Council upheld the complaint about speech and language therapy. It noted the sessions had started on 11 June 2019. It also wrongly stated that the sensory integration sessions had also started. Mrs D escalated the complaint and the Council replied in July 2019 advising Mrs B to discuss the provision with the school and the NHS.
18. Mrs D then complained to the Ombudsman on behalf of Mrs B.

Analysis

19. The Council issued the draft EHC plan within five weeks as ordered by the Tribunal. It issued the final EHC plan on 12 March 2019, approximately 13 weeks later. The Council produced the plan within 20 weeks of the Tribunal decision. I cannot find fault with the time taken here.
20. The Council is responsible for ensuring the provision detailed in the plan is implemented. The speech and language therapy sessions and sensory integration therapy sessions should have started once the final plan was issued on 12 March 2019. The speech and language sessions started three months later, and the sensory integration therapy did not start at all. This was fault.
21. C missed out on three months of speech and language therapy and four months of sensory integration therapy. These were key interventions to support her at school which were missing for a significant period of time.
22. I cannot conclude the lack of these therapies directly led to C’s deterioration and eventual attendance at a specialist provision, but it has left an uncertainty for C and Mrs B as to whether the outcome could have been different had the therapies been provided at the correct time.
23. The Council was also at fault in placing responsibility for the lack of provision on the school and the NHS. The statutory responsibility to ensure provision detailed in an EHC plan rest with the Council and it should have ensured these therapies were provided on time and in accordance with the plan.
24. The Council’s complaint response was inaccurate in stating the sensory integration therapy had started and did not provide any remedy for the failure to ensure either therapy started on time. These were further faults which caused injustice to Mrs B, who had to complain to us and C who did not receive any extra support to make up for the missed sessions.

Agreed action

25. In recognition of the injustice caused to C and Mrs B, I asked the Council, within one month of my final decision, to:
• provide C with a term of sensory integration therapy (18, one-hour sessions) and 13 weeks of speech and language therapy (weekly 40-minute sessions)
• pay Mrs B £500; and
• ensure all staff are aware the Council has a statutory duty to ensure provision detailed in an EHC plan is made in a timely fashion.
26. The Council has agreed to my recommendations.

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Final decision

27. I consider this is a fair and reasonable way of resolving the complaint and I have completed my investigation on this basis., I intend to complete my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman