Summary: the Council was at fault because it failed to meet its duty to ensure provision of occupational therapy, speech and language therapy and of access to a keyboard for Ms B’s son as detailed in his Education, Health and Care Plan. This caused Ms B’s son injustice as he missed out on this provision. The Council will take the agreed action to recognise this injustice.

The complaint

1. The complainant, whom I shall refer to as Ms B, complained that Staffordshire County Council failed to amend her son’s Education, Health and Care Plan to reflect his special educational needs and delayed securing the provision set out in the final Plan issued in October 2020. The provision that was delayed included speech and language therapy, occupational therapy and ensuring her son, whom I shall refer to as X, had a keyboard to use in lessons. As a result X has missed out on provision to which he was entitled.

Back to top

What I have investigated

2. I investigated the complaint about the delay in securing and making provision set out in the Plan. The final section of the statement explains why I did not investigate the other parts of the complaint.

Back to top

The Ombudsman’s role and powers

3. 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)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. 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 EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.

6. 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)
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)

Back to top

How I considered this complaint

8. I discussed the complaint with Ms B and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
9. 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.
10. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What should have happened

11. Where a Council issues an EHC Plan for a child it has a duty under section 42 of the Children and Families Act 2014 to ensure the special educational provision detailed in section F of that Plan is put in place. It must also ensure the Plan is reviewed annually.
12. We usually expect that Councils should ensure that straightforward provision in section F should be in place within four weeks of the plan being finalised.

What happened

13. The Council issued a final amended EHC plan for X in October 2020. X is diagnosed with an Autism Spectrum Disorder. He started year 11 (the final year of compulsory secondary school education) in September 2020 attending a special needs school named on his EHC plan since 2015.
14. It has since issued a further plan in May 2021. This confirms that from September 2021 X will attend a mainstream school for post 16 education.

What the EHC Plan says

15. The Council confirms that section F of X’s EHC Plan states that “X requires embedded access to OT (occupational therapy) to develop independent skills through full understanding of sensory, motor and learning needs; minimum 3 hours per month to create programmes and deliver 1:1 learning. X needs a comprehensive programme with targets to develop his social thinking, such as Social Thinking by... He requires weekly direct speech and language therapy input for 30 minutes per session from a qualified and experienced SLT to develop his higher-level language skills and social communication. X requires access to supportive strategies in line with his difficulties arising from dyslexia and visual dysgraphia, as well as the use of a keyboard for recording above 4 sentences. He requires work to be copied to be placed directly in front of him rather than having to look up and copy from a board”.
16. So, the EHC Plan confirms that X needs at least three hours input per month from an occupational therapist (OT), 30 minutes a week with a speech and language therapist (SLT) and a keyboard for recording more than 4 sentences. Additionally it provides for SLT reviews a minimum of once every half-term and these are to comprise 45 minutes with X and 45 minutes with his parents and staff.

What the Council did to make the provision

Occupational therapy

17. The Council says it sought quotes from three independent Occupational Therapists in September 2020 to make the provision specified in the Amended Final EHCP issued in October 2020. The Council says that all three of these said they did not have capacity. So, the Council says it sought a fourth quotation from another provider asking it to make provision from early November 2020. This fourth provider agreed it could make provision from January 2021. The Council says it was unable to identify any other OTs within the local area/reasonable travelling distance who was able to make the provision before January 2021.
18. The Council says this fourth provider went on to provide X with one session in January, two in February, one in March and one in May 2021.

Speech and Language Therapy

19. The Council says it referred X to the Speech and Language Service in late October 2020 and that the service agreed it would make the provision and would contact Ms B about this. It says the SLT service then contacted X’s school by email in early December to arrange this but the school did not respond to this email. When the school continued to fail to respond to the SLT service the service began providing this to X online via MS Teams at home in late January and this continued on a weekly basis until mid-March 2021 when the therapist completed a review. This was during the national Covid lockdown period in the first three months of 2021. The Council says that since X returned to school in March the therapist has been unable to get access to provide X’s SLT support in the school. The Council says the therapist offered to provide sessions during the Easter break but Ms B did not want this. It says the school failed to confirm appointments planned by the therapist in the Summer term and would only allow the sessions to take place in any event during morning break (which is 30 minutes).
20. The Council says that it is aware from the school that as X is in year 11 he finished school in early June and so the SL therapist has arranged to provide the weekly SL therapy at home from 18 June.

Keyboard

21. The Council says it asked X’s school to ensure this provision was made in October 2020 but the School has failed to provide confirmation of this. In its response to my enquiries the Council has provide a copy of an email to the School in early November 2020 about this and a further email it sent in late March 2021 repeating the enquiry. It does not appear that a response was provided by the School.

Was the Council at fault and did this cause injustice?

22. The Council has a duty under the Children and Families Act 2014 to ensure the provision in section F of an EHC Plan is in place. I recognise that it tried to do this from October 2020 in relation to the OT provision, the SLT provision and the keyboard however it did not satisfy itself that the provision was made in order to meets its duty under the 2014 Act and this amounts to fault.
23. Since October in year 11 X:
• Received five sessions in total with an OT when his EHC Plan specified he should have received total input of three hours a month. I note that the Council’s email of 4 November 2020 refers to X receiving 36 hours OT input a year. So between October and May he should have received around 21 hours. Assuming each session was about an hour long I therefore conclude that X missed out on 16 hours of OT during this period. If I allow the Council a period of four weeks to set this up, he missed out on 13 hours;
• The SLT will have provide around 12 weeks of SLT weekly support (Jan to March and mid-June until end of term in July 2021). A school year equates to around 39 weeks of teaching so between October and July he should have received around 34 weekly sessions. Allowing the Council four weeks to set this up this means he should have received around 30 sessions. I therefore conclude that he wrongly missed out on 18 sessions; and
• There is no evidence that the keyboard was supplied at all.
24. I recognise that some of the period in question was during the time that Covid restrictions meant that X was not actually in school between in January and March 2021 but it appears it was in fact easier for some of the provision to be made during that period.
25. The fault in failing to make the entirety of this provision caused X injustice as he did not receive the provision he should have and which he was identified as requiring to meet his needs.

Back to top

Agreed action

26. To remedy the personal injustice to Ms B and X the Council will, within one month of the final decision on this complaint,:
• apologise to Ms B and X for the identified faults and for the avoidable stress this caused; and
• make a payment of £1800 to recognise the injustice caused by the missed OT, SLT and keyboard provision as detailed above. This calculation is based on a rate of £200 a month for the period from November 2020 to July 2021. This is the lower end of the scale of payments we usually recommend to recognise lost provision and is because the OT, SLT and keyboard formed only a part of the overall provision.
27. Within three months of the date of the final decision on this complaint, the Council will take action to address the systemic issues this complaint has highlighted to:
• ensure that in future it has a mechanism to pursue schools that fail to comply with the provision detailed in an EHC Plan such as happened here and provide us with details of this; and
• take action to address the apparent shortage of OT providers it uses to ensure it is in future able to meet its statutory duties and provide us with details of how it will achieve this.

Back to top

Final decision

28. The Council was at fault because it failed to meet its duty to ensure provision of occupational therapy, speech and language therapy and of access to a keyboard for Ms B’s son as detailed in his Education, Health and Care Plan. This caused Ms B’s son injustice as he missed out on this provision. The Council will take the agreed action detailed above to recognise this injustice and to ensure that similar faults do not occur in the future.

Back to top

Parts of the complaint that I did not investigate

29. I did not investigate the complaint that the Council failed to amend Ms B’s son’s Education, Health and Care Plan. This is because the law says we cannot normally investigate a complaint when someone can appeal to a tribunal. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. Ms B had a right of appeal against the failure to amend her son’s Plan. Whilst we may decide to investigate if we consider it would be unreasonable to expect someone to appeal to a Tribunal, there is nothing in the information I have seen which persuades me that it would have been unreasonable to expect Ms B to have appealed against the Council’s decision not to amend her son’s Plan.

Back to top

Investigator's decision on behalf of the Ombudsman