Summary: The Council failed to ensure Mr B’s son, K, received the Speech and Language Therapy provision set out in his Education, Health and Care plan. As a result, K missed out on therapy he needed, and Mr B was put to avoidable time and trouble pursuing his complaint. The Council has agreed to apologise, make a payment, and take action to prevent similar failings in future.

The complaint

1. Mr B is complaining on behalf of his son, K. Mr B complains that the Council failed to ensure K received the speech and language therapy set out in his Education, Health and Care plan. Mr B considers this has resulted in K not achieving the communication skills he needs to help him cope more effectively with his disability.

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What I have investigated

2. I have investigated Mr B’s complaint about K not receiving the provision set out in his Education, Health and Care plan between September 2019 and March 2021. The last section of this statement explains why I have not investigated earlier events.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
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)
8. 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

9. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Education, Health and Care plans

10. 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 Council is responsible for making sure that arrangements specified in the EHC plan are put in place.
11. Parents have a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal if they disagree with the special educational provision or the setting named in their child’s EHC plan.
12. The Special Educational Needs and Disability Code of Practice states that where an EHC Plan is being maintained, the Council must secure the provision specified in the plan.
13. The Coronavirus Act 2020 temporarily amended the absolute duty to make the provision in an EHC plan, to a duty to use ‘reasonable endeavours’. This change was applicable from 1 May to 31 July 2020.

Overview

14. Mr B’s son, K, has special educational needs and an EHC plan.
15. In 2019, when K was 18 years old, Mr B appealed to the SEND Tribunal because he disagreed with the provision in K’s EHC plan, and in particular the Council’s decision to remove Speech and Language Therapy.
16. The tribunal verdict was issued on 31 July 2019 and specified that K should receive Speech and Language Therapy on a termly basis. The Council issued a final EHC plan in August 2019. It stated that K needs help to achieve his communication and interaction outcomes and that this would be provided by a qualified teacher or teaching assistant under the guidance of a Speech and Language Therapist. It said that a Speech and Language Therapist who is experienced in working with young people with severe learning difficulties and social and communication difficulties would review K's communication and interaction needs and targets, advise staff in the setting and deliver input on a termly basis.
17. In September 2019, K started attending a college for young people with special educational needs.
18. The Council commissioned an independent Speech and Language Therapy service to deliver the provision set out in K’s EHC plan. A Speech and Language Therapist then visited K at college on 20 December 2019. The records indicate that the Speech and Language Therapist observed K and said that she would provide his tutor with various techniques to help improve K’s communication skills but then did not do so.
19. Mr B complained to the Council on several occasions that K was not receiving the Speech and Language Therapy set out in his EHC plan. The Council tried to contact the Speech and Language Therapy Service about this but did not receive a substantive response.
20. In November 2020, Mr B told the Council that K’s college wanted to carry out a review and input from a Speech and Language Therapist was needed. The Council then started the process of commissioning another independent Speech and Language Therapist. It found one which could deliver the provision set out in K’s EHC plan in February 2021 and they started working with K the following month. Since then, K has received the Speech and Language Therapy provision set out in his EHC plan.

Analysis

21. The Council delayed arranging Speech and Language Therapy after K’s EHC plan was finalised in August 2019. It took no action until 25 September when it contacted the NHS to see if it could provide the Speech and Language Therapy set out in K’s EHC plan. The NHS told the Council it could not do so on 27 September. The Council then commissioned an independent Speech and Language Therapy Service on 7 November and a Therapist visited K at college on 20 December.
22. The Council should have arranged for a Speech and Language Therapist to start working with K soon after he started at college in September 2019. As a result of the Council’s delays, K had no Speech and Language Therapy input for his first term at college. This was fault.
23. The Council found out that K was not receiving the Speech and Language Therapy set out in his EHC plan when Mr B complained in March 2020. The Council’s responses to Mr B’s complaint indicate that it tried to contact the Speech and Language Therapy Service in April to ask if it could look at ways of delivering K’s therapy remotely during the National Lockdown, and it tried to contact the service again in May asking it to confirm what had been delivered to K and to request a copy of his programme.
24. I have seen evidence to show the Council tried to contact the Speech and Language Therapy Service again in June and July asking for information about the work it had done with K, the progress made, and its plans for providing future support. The Council did not receive a meaningful response and it made no further efforts to obtain this information from the service.
25. I consider the Council failed to take appropriate action once it became aware in March 2020 that K was not receiving the Speech and Language Therapy set out in his EHC plan. This was fault. The Speech and Language Therapy service was not responding to its emails and it started to receive complaints from other parents. The Council should have taken action to commission another provider sooner. As a result of its failure to do so, K did not receive any Speech and Language Therapy until March 2021.
26. While K did not receive any useful Speech and Language Therapy between September 2019 and March 2021, I do not find the Council at fault for the lack of provision in early 2020. This is because the Council had commissioned a Speech and Language Therapy Service, a Therapist had visited K, and it had no reason to believe they would not provide the service they had been commissioned to provide. If there had been no fault by the Council, I consider K would have received Speech and Language Therapy for two months in 2019, and for 10 months between May 2020 and March 2021.
27. I consider the failings in this case have caused K injustice. The lack of Speech and Language Therapy meant that college staff were not provided with the advice and support they needed to help K with his communication difficulties. This will have affected his ability to access the education provided by the college.
28. Where someone has not received the provision set out in their EHC plan, we would normally recommend that the Council arrange extra provision to make up for the shortfall. However, Mr B considers this may not be appropriate because K struggles to take in too much information at a time. I have therefore decided to recommend a financial remedy to be spent on something which will benefit K’s education.
29. The Council did not always respond to Mr B’s emails in a timely manner. This was fault. I consider the failings in this case have caused Mr B frustration and put him to avoidable time and trouble pursuing his complaint.

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Agreed action

30. Within four weeks, the Council will:
• Apologise to Mr B for the failings identified in this case.
• Make a payment of £1800 to Mr B for its failure to provide Speech and Language Therapy for 12 months. The money should be spent on something which will benefit K’s education.
• Make a payment of £250 to Mr B to recognise his distress and the time and trouble he has been put to pursuing his complaint.
31. Within eight weeks, the Council will:
• Develop a procedure to ensure that where it appears a child or young person is not receiving the provision set out in their EHC plan, robust action is taken without delay.
• Reminds relevant staff of the importance of responding to parent’s concerns in a timely manner.

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Final decision

32. I have completed my investigation and uphold Mr B’s complaint. There was fault by the Council which caused injustice to Mr B and K. The action the Council has agreed to take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

33. As explained in paragraphs five and six, we cannot usually investigate a matter which has a right of appeal to a tribunal, and we have no jurisdiction to investigate once that right of appeal has been used. For this reason, I have not investigated Mr B’s complaints about matters which were the subject of his appeal to the SEND Tribunal.
34. Mr B has also complained about the actions of the Council’s Special Educational Needs team while K was attending school between 2012 and 2019. As explained in paragraph four, we cannot usually investigate matters that a complainant has been aware of for more than 12 months. I have not investigated this part of Mr B’s complaint because I consider it would have been reasonable for Mr B to complain to the Ombudsman sooner.
35. I have not investigated Mr B’s complaints about the Council’s actions during the tribunal process. This is because these matters are inextricably linked with the appeal, which we have no jurisdiction to investigate.

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Investigator's decision on behalf of the Ombudsman