Summary: Mr X complained the Council failed to provide the speech and language therapy specified in his daughter, Miss D’s Education, Health and Care Plan. The Council has already admitted it was at fault, offered Mr X and Miss D £2,000 to remedy the injustice it has caused and explained the service changes and training it will carry out to prevent a reoccurrence. This is sufficient to remedy the injustice caused.

The complaint

1. Mr X complained the Council failed to provide the speech and language therapy (SaLT) specified in his daughter, Miss D’s, Education, Health and Care (EHC) Plan from 6 December 2019.
2. Mr X says that as a result of this, the Council has disadvantaged an already vulnerable child during her GCSE years. In addition, Mr X says he has been caused distress, anxiety and unnecessary time and trouble dealing with this matter and having to come again to the Ombudsman. He believes the £2,000 already offered by the Council is insufficient.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
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)
6. 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

7. I spoke to Mr X and considered his view of his complaint.
8. I made enquiries of the Council and considered the information it provided. This included a copy of the Tribunal order, Miss D’s EHC Plan and the complaints correspondence.
9. I considered the relevant legislation and guidance. This included the Child and Families Act 2014 (the Act), the Special Educational Needs and Disability Regulations 2014 (the Regulations) and the Special Educational Needs and Disability Code of Practice 2015 (the Code).
10. I considered the Ombudsman’s Guidance on Remedies.
11. I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Education, Health and Care Plans

12. A child with special educational needs may have an 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. The Ombudsman cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
13. Councils have a legal duty to ensure the special educational provision in an EHC Plan is delivered from the date they issue a final Plan. This duty is non-delegable.
14. Where a parent or young person disagrees with the contents of the plan there is a right of appeal to the Tribunal (the SEND Tribunal).

What happened

15. Miss D has had an EHC Plan for many years. She has severe disabilities which significantly affect her mobility. Miss D is unable to talk and is entirely dependent on high-tech and low-tech communication methods.
16. Mr X was unhappy with some of the content of Miss D’s EHC Plan and appealed to the Tribunal. The Tribunal considered Miss D’s case in October 2019.
17. One of the recommendations made by the Tribunal specified the Council must ensure Miss D received 78 hours of SaLT over the next 12 months.
18. The Council issued Miss D’s final amended EHC Plan on 6 December 2019. This was in line with the Tribunal’s findings and recommendations.
19. On 3 February 2020, Mr X complained to the Council at Stage 1 of the complaints process because Miss D had not received any SaLT.
20. The Council issued its Stage 1 response on 28 April 2020. It said it was its understanding the NHS would provide 50% of Miss D’s SaLT and the Council would arrange for a private SaLT therapist to provide the other 50%. Despite the fact, Miss D had yet to receive any SaLT, the Council did not uphold Mr X’s complaint.
21. Mr X was unhappy with the Council’s response and complained again in May 2020. In relation to the Council’s comment the NHS would provide 50% of the SaLT, he said “For the avoidance of doubt, the NHS has not contacted us to offer [Miss D] any speech and language therapy. Indeed as the NHS… Speech and Language Therapy service discharged [Miss D] confirming she had “no needs”, it would be unconscionable for it to do so”.
22. Mr X went on to say “As of the date of [the] Stage 1 response, the Council has to provide an average of 3.25 hours of 1:1 support per week if it was to provide 78 hours of 1:1 by 6 December 2020”. Mr X said this level of provision would result in a detrimental impact on Miss D’s other studies.
23. Mr X remained unhappy and asked for his complaint to be escalated.
24. The Council’s Senior Educational Psychologist (SEP) responded on 24 August 2020 at Stage 2 of the Council’s complaints process. They said:
• it had taken too long to deal with the contractual arrangements needed with the NHS to arrange a SaLT therapist, causing delays. It upheld this part of the complaint; and
• it had taken appropriate steps to find a private provider but once it had identified one on 9 March 2020, it then took 2½ months to issue a draft contract which had still not been finalised. The Council partially upheld this part of the complaint;
25. The SEP said there had been unacceptable delays and apologised. It also said those delays should have been acknowledged in the Stage 1 complaint response and Mr X and Miss D kept informed of progress in securing a SaLT therapist.
26. The SEP offered Mr X and Miss D £2,000 in acknowledgement of the impact these delays had on them. It also said that in their role as the SEP, they did not consider Miss D would benefit from increasing her SaLT therapy to more than 2 hours a week. The SEP said “doubling the provision would not double the benefit of the provision”.
27. The SEP also outlined the learning points for the Council which included:
• pursuing contracts with the SaLT providers as a matter of urgency;
• putting processes in place to ensure that following a Tribunal order, provision is put in place in a timely manner;
• training for the contracts and SEND teams; and
• training with the SEND team to ensure complaint responses address all the issues raised.
28. Mr X remained unhappy and complained to the Ombudsman.

My findings

29. The Council has already admitted it acted with fault when it failed to ensure the provision of Miss D’s SaLT from December 2019.
30. Where fault has resulted in a loss of educational provision, the Ombudsman normally recommends a remedy payment of between £200 and £600 per month to acknowledge the impact of that loss. The figure is based on the impact of the loss on the child and takes account of factors such as the child’s SEN, any educational provision made in the period, whether additional provision can remedy some or all of the loss and whether the period was particularly significant, for example the first year of compulsory education, transfer to secondary school or immediate preparation for exams.
31. Although of significant importance to Miss D, the SaLT provision is just one aspect of the special educational provision in her Plan. During the period of this complaint, Miss D continued to receive the teaching hours outlined in her Plan as well as the other special educational provision. The Ombudsman would not, therefore, recommend a payment higher than the £2,000 already offered by the Council.
32. The actions outlined by the Council to help prevent a reoccurrence of similar events in future are also appropriate to address the fault in the Council’s actions.

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Final decision

33. The Council has already admitted it was at fault. It has provided a suitable remedy to address the injustice caused to Miss D and Mr X and said it will make service changes to prevent a reoccurrence in future. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman