Summary: There was fault by the Council, in failing to secure the provision of Speech and Language Therapy as part of an Education, Health and Care plan. However, the Council has now recognised this fault, and taken adequate steps to remedy the injustice which followed. For this reason, the Ombudsman has completed his investigation.

The complaint

1. The complainant, to whom I will refer as Ms J, is represented in her complaint by an advocate, to whom I will refer as Mrs C.
2. Ms J complains the Council has failed to secure the provision of Speech and Language Therapy (SALT), which is part of her daughter’s Education, Health and Care (EHC) plan. I will refer to Ms J’s daughter as F.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I reviewed F’s EHC plan, a set of notes and records provided by the Council, Mrs C’s complaint correspondence and the Council’s responses.

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What I found

6. F attends a mainstream secondary school. She has a number of disabilities and suffers from anxiety.
7. In January 2019, an EHC plan was finalised for F. Amongst other provision, the plan called for F to receive a weekly 40 minute session of SALT, delivered by a therapist, and two weekly ‘carryover’ sessions of 20 minutes each, delivered by a teaching assistant or a mentor.
8. The Council says it provided F’s school with a budget to provide the SALT sessions. However, no progress was made on this until March and April, when the school’s EHC plan co-ordinator made a referral to the local NHS Trust to assess F and arrange therapy.
9. A SALT assessment was arranged on 25 April, but Ms J called the school on the day to say F felt unable to attend it.
10. Between May and June, the therapist and school made several attempts to re-arrange the review session. This proved difficult because F’s attendance at school was inconsistent and unpredictable. The review was eventually completed on 21 June.
11. On 30 May, Mrs C had made a Stage 1 complaint to the Council about the failure to secure the SALT provision.
12. The Council replied on 20 June. It said, although SALT sessions had been offered to F at school, she had not attended them. The Council said it could not comment on whether the NHS or school had taken adequate steps to ensure the sessions were arranged, and suggested Mrs C made a complaint to one or both bodies.
13. Mrs C made a Stage 2 complaint on 1 July. She said it was the Council’s duty to secure the provision in Section F (which included F’s SALT sessions) of an EHC plan, not the NHS’s or school’s.
14. Mrs C said the SALT team had made only one attempt to meet F, which was “unsuccessful due to the staff inability to directly engage” her. Mrs C said an independent report had since been completed, which demonstrated that F was able to engage with professionals.
15. Mrs C said an appeal had now been lodged with the Tribunal in relation to several sections of F’s EHC plan, including her school placement. Mrs C said this was partly due to the failure to secure provision.
16. The Council responded on 23 July, but simply reiterated the view explained in its Stage 1 response.
17. Mrs C referred Ms J’s complaint to the Ombudsman on 6 August.

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Legislative background

18. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the young person’s needs and what arrangements should be made to meet them. Councils must review EHC Plans at least every 12 months.
19. Councils have a duty to secure the special educational provision set out in an EHC Plan. (Children and Families Act 2014, section 42)

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Analysis

20. At the beginning of my investigation, I wrote to the Council. I asked it to describe the steps it had taken to secure the provision of the SALT for F, whether it had experienced any obstacles in doing so, and what steps it had taken to overcome these.
21. The Council said it had provided a budget to school for the SALT sessions. However, there had been no attempt to actually source the provision, and the Council said it had not reviewed or attempted to intervene until March. The Council accepted this was fault.
22. The Council explained the difficulties which had then arisen with arranging F’s assessment. After not attending the appointment in April, it had then not been possible to re-arrange until June, because of the therapist’s availability and F’s inconsistent attendance at school. Since June, some sessions of SALT had been completed, although these were still difficult to arrange because it could not be predicted when F would attend school.
23. However, the Council offered to pay Ms J £800 to recognise the impact of the fault. It also offered to arrange additional sessions to make up for those missed between January and April 2019, or to give Ms J a personal budget to make her own arrangements for F’s SALT.
24. The Council has provided me with copies of some relevant notes. I can see, after the initial attempt to assess F on 25 April, which she had declined to attend, there was considerable contact between the SALT and the school to find a suitable date to re-arrange.
25. The Council has also provided me a copy of F’s attendance record for the 2018-19 school year. This shows her attendance across the year was only 72%.
26. I am therefore satisfied the obstacles with arranging F’s SALT were, to a significant degree, not due to fault by the Council.
27. Regardless of this, the Council has accepted it was fault to not be more proactive between January and April. I agree with this finding, although it appears likely there would have been delays and cancellations of the SALT sessions, even if the Council had been more proactive.
28. In either case, I do not consider the Ombudsman can add anything to the Council’s proposed remedy. It has offered a greater financial remedy than I would have recommended here, and also a choice of either replacement sessions for F, or a personal budget so Ms J can arrange her own SALT sessions. It is up to Ms J which of these remedies to accept.
29. The Council has also confirmed, as a result of Ms J’s complaint, it will implement a new procedure to monitor the delivery of provision in future. This is positive, and again, there does not appear to be anything for the Ombudsman to add here.
30. I have one additional criticism of the Council here, which is the generally poor quality of its responses to Mrs C’s complaints.
31. First, the Stage 1 response essentially dismisses the complaint as being a matter for the NHS and/or school, having noted F had failed to attend the booked appointment.
32. To some degree this is right. The school is responsible for day-to-day management of the provision, and the NHS, as provider, was responsible for the availability of its staff. However, as Mrs C then pointed out, the Council still retains overall responsibility, and if other bodies are failing to meet their duties, it is incumbent on the Council to step in. The Stage 1 response does not recognise this.
33. The Stage 2 response is even poorer. It is extremely brief, and does not address Mrs C’s point about the Council holding responsibility, instead simply restating the Stage 1 response. I note, also, it refers to F as Ms J’s “son”, not daughter, which suggests the author had not even familiarised himself with the case.
34. I find this complaint handling amounts to fault, and is an injustice on the basis Mrs C had raised valid points which deserved a proper response. However, I consider the Council’s proposed remedies to be enough to address this additional injustice, and so I make no recommendations.
35. I would ask the Council to note my criticism here though.

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Summary

36. The Council was at fault for not being more proactive about F’s SALT provision. It is not possible to say exactly what difference this made to the substantive provision she eventually received, but it remains an injustice.
37. However, the Council has already taken adequate steps to remedy the injustice, and improve its service to prevent a recurrence. I therefore make no recommendations.

Final decision

38. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman