Summary: Mr X complains that the Council failed to provide speech and language therapy and a psychologist’s assessment set out in his son’s Education, Health and Care Plan (EHCP). The Council is at fault as it delayed in arranging the therapy and assessment. This has caused injustice. The Council has agreed a financial remedy.

The complaint

1. The complainant, who I refer to here as Mr X, complains that the Council has failed to adhere to his son (B)’s EHCP. The EHCP said B would receive sessions with a speech and language therapist (SALT) and that a chartered clinical psychologist would assess him with provision then added to the EHCP if necessary. Mr X complains that the SALT provision was only made after he threatened judicial review and that the psychologist assessment has still not been carried out.
2. He wants the assessment carried out as soon as possible, compensation for missed provision and reimbursement of his legal costs.

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What I have investigated

3. I have investigated whether the Council has made the provision specified in the EHCP.

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The Ombudsman’s role and powers

4. 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)
5. The Special Educational Needs and Disability (SEND) Tribunal deals with disputes about assessments and provision for special educational needs. The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin) that we cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal.
6. Further, where there is a right of appeal, we cannot investigate either the decision subject to the appeal or the consequences of the decision.
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 report with Ofsted.

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How I considered this complaint

9. I spoke to Mr X and considered information provided by Mr X and the Council. I have shared my draft decision with Mr X and the Council and have considered their comments before finalising my decision.

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What I found

Special educational needs and Education, Health and Care Plans

10. Once an assessment has determined that a child requires special educational needs (SEN) provision, the council must issue an Education Health & Care Plan (EHCP). The plan states the child’s needs and what provision must be made to meet these needs. Councils are responsible for ensuring the stated provision in the EHCP is made.

What happened

11. Mr X’s son B has SEN. He had a final EHCP dated October 2020.The EHCP said half-termly sessions with a speech and language therapist (SALT) would be provided and a neuropsychological assessment carried out by a chartered clinical psychologist with provision then added to the EHCP if necessary.
12. In January 2021, in response to a complaint from Mr X, the Council acknowledged that provision had not been made. It said it would “work with providers to secure an offer as soon as possible”.
13. Mr X lodged an appeal to the SEND tribunal against a different aspect of the EHCP in the same month. Mr X commissioned a private speech and language report as supporting evidence to this appeal. The report recommended B should be given four SALT sessions of one hour each per term. The Council agreed to amend the EHCP to reflect this. The provision did not start until mid-April 2021. Mr X told me provision only started after he consulted a solicitor and threatened judicial review proceedings via a pre-action protocol letter. He said he had spent £600 on legal costs. The Council provided evidence it had taken steps to arrange SALT before it received the letter from Mr X’s. Mr X also provided evidence he had approached the solicitor and incurred costs before the Council had approached the provider.
14. With regards to the psychologist assessment, the Council said it had committed to provide this. A psychologist commissioned by the Council initially said it was likely to be undertaken in April 2021 due to Covid restrictions. However, following a telephone case management hearing about Mr X’s SEN appeal, the judge made a ruling about the assessment, meaning the Council had to commission a different psychologist and rearrange the assessment. The assessment was completed in June. It made some recommendations but did not require specific mental health or SEN provision.

Analysis

15. The October 2020 EHCP specified provision of SALT sessions and a psychological assessment. The SALT session did not begin until April 2021 and the assessment did not take place until June.
16. This is injustice to B who has missed out on SALT provision. The Council agreed to pay £600 to compensate for the impact of the loss of SALT provision.
17. With regards to the psychological assessment, it is not possible to know the impact on Mr X’s son had the assessment been carried out on time. This is because any recommendation may have required revisiting following the judge’s order. The Council has agreed to make a payment of £200 to compensate for the uncertainty caused by the Council’s delay.
18. The Council has also agreed to pay £100 to compensate Mr X for avoidable distress and for his time and trouble in making the complaint.
19. I do not consider a payment for legal costs is justified. This is because the injustice is one of time and trouble, for which the Council has agreed to pay compensation. While Mr X has put forward a compelling argument as to why threatening legal action was an appropriate response it was not incumbent on him to instruct a solicitor to do so. Guidance and templates are available online which complainants can use to draft a pre-action protocol letter. There is no reason why Mr X would have been unable to do this.

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Agreed action

20. Within one month of my final decision the Council has agreed to pay Mr X:
1. £600 to compensate for the loss of SALT provision;
2. £200 for the uncertainty over potential provision; and
3. £100 for avoidable distress and for his time and trouble in bringing his complaint.

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Final decision

21. I have completed my investigation with a finding of fault by the Council, which caused injustice. It has agreed a financial remedy.

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Investigator's decision on behalf of the Ombudsman