Summary: The Council failed to provide Mrs C’s daughter with specialist Speech and Language Therapy for a total of 13 months, despite it being detailed in her Education Health and Care Plan. The Council has agreed to apologise and make a payment to remedy the injustice this has caused.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains about how the Council met the provision detailed in her daughters Education Health and Care (EHC) Plan, which has meant that she has struggled to understand and produce her school work. Mrs C says:
• The Council delayed in providing D’s Speech and Language Therapy (SaLT).
• The Council delayed in providing specialist software for D to access.
• The Council failed to properly respond to her complaints about the matter.

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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)
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.

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How I considered this complaint

5. As part of the investigation, I have considered the complaint and information received from Mrs C and information provided by the Council. I also communicated Mrs C about her complaint.
6. I have reviewed and considered relevant legislation and statutory guidance.
7. I also sent a draft version of this document to both parties and invited their comments.

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What I found

Legislation and guidance

8. 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.
9. Councils have a duty to secure the special educational provision set out in an EHC Plan. (Children and Families Act 2014, section 42)

Background

10. Mrs C’s daughter, D, has a diagnosis of Down Syndrome. She has global development delay, a speech and language disorder and has significantly below cognition and learning skills.
11. Due to D’s Special Educational Needs (SEN) she is subject to an Education Health and Care (EHC) Plan. In September 2018, D started year 5 at a mainstream primary school.

What happened

12. On 11 March 2019, the Council completed its annual review and issued a final updated version of D’s EHC Plan.
13. The EHC Plan detailed what provisions would be put in place to meet D’s needs. These included daily SaLT sessions lasting 20 minutes which would be delivered at school. There was also a provision for additional weekly SaLT sessions, to be delivered by a therapist.
14. In June 2019, the Council completed a further review and issued another final EHC Plan.
15. The provision of weekly SaLT sessions was changed from being delivered by a therapist, to being delivered by a specialist with experience with the communication, cognitive and learning profile of children with Down Syndrome. There was also a provision which said D would be given access to software called ‘Clicker’ which is designed to aid children’s reading and writing skills.
16. On 11 September, Mrs C complained to the Council. She said that, since March, D had not been receiving the SaLT provision. Mrs C also said the Clicker provision had also not been implemented.
17. The Council did not provide a response, and after Mrs C contacted it again in November, the Council decided to progress the complaint to the second stage of its complaints process.
18. The Council issued a response to Mrs C in which it apologised for the delays. The Council said that whilst D’s school had been providing the daily SaLT sessions, it accepted that the weekly specialist sessions had not been provided, because its service provider had a shortage of staff. The Council said it would continue to pursue its provider to agree a start date for the provision.
19. Mrs C was dissatisfied with the Council’s response and asked the Ombudsman to investigate.
20. Upon making enquiries with the Council, it told the Ombudsman that, while it had been unable to source the specialist SaLT provision, it had sourced provision from an NHS Technical Instructor, which provided some sessions in June, July and October 2019, and some further limited support which commenced in May 2020.
21. The Council told the Ombudsman that D’s school had provided her with a laptop with the Clicker software installed and provided a report from the school which detailed the progress D had made since November 2019. This showed that she had been using Clicker in class and more recently at home.
22. Mrs C had made the decision to home-school D as of September 2020. The Council has said that it has now arranged for the specialist SaLT provision to start from this date.
23. The Council has explained that the delays in arranging D’s SaLT provision was because the specialist provider it sourced did not have the staffing capacity available to provide the therapy.
24. The Council also accepted that it had not responded to Mrs C’s complaint within the Council’s timescales, stating that the delay was because information from its SEN Therapies Team was not provided.

Analysis

25. Mrs C complains that the Council failed to provide specialist SaLT sessions and Clicker software, both of which were detailed in her daughter D’s EHC Plan.
26. The Council says the School provided D with a laptop with Clicker software installed in the Autumn terms. Mrs C raises concerns about the level of training provided to use the software. However, in November the School recorded that D had been using the software in class to support her learning. Therefore, there is no evidence to suggest the Council failed to provide this provision.
27. The Ombudsman would expect the Council to put provision in a final EHCP in place promptly when the final plan is issued and at least within four weeks. That means the weekly SaLT provision should have been put in place by 8 April.
28. However, the Councils accept that it did not provide the weekly SaLT provision as detailed in D’s EHC Plan. This is fault.
29. The provision has been arranged to start in September 2020. However, taking into account for school holidays, I calculate that by this date D will have been without the weekly SaLT provision for approximately 13 months.
30. The Ombudsman’s guidance on remedies says where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss.
31. I have considered the disadvantage D experienced for a significant period and the amount of SaLT detailed in her EHC Plan. I have also considered that the Council did provide a number of alternative SaLT sessions, albeit not in accordance with D’s EHC Plan.
32. I am therefore satisfied that a payment of £200 per month is appropriate to remedy the injustice to D due to missed therapy. For this reason, I have recommended the Council makes an additional payment of £2,600.
33. Mrs C also went to significant time and trouble pursuing her complaint with the Council, which initially did not provide a response at Stage 1 of its process, then delayed issuing a Stage 2 response. It is for these reasons I consider it appropriate for the Council to offer to make an additional payment of £200 to Mrs C for the time and trouble she went to in raising the complaint with the Council.

Agreed action

34. Within one month of the date of my final decision, the Council has agreed to:
• Apologise to Mrs C and D for the faults I have identified.
• Offer to make a payment of £2600 to Mrs C to remedy the loss of specialist SaLT provision for a total of 13 months. This money should be used for the benefit of D’s education.
• Offer to pay Mrs C £200 in recognition of the time and trouble she was put to due to the delay in responding to her complaint about the matter.

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Final decision

35. I have concluded my investigation on the basis that there was fault in how the Council dealt with the matters raised by Mrs C.

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Investigator's decision on behalf of the Ombudsman