Summary: Mrs X complained the Council failed to provide her son with the level of speech and language therapy as set out in his Education Health Care Plan. The Council was at fault and has agreed to pay a financial amount to remedy Mrs X’s son’s injustice.

The complaint

1. Mrs X complained the Council failed to provide her son with the level of speech and language therapy (SALT) as set out in his Education Health Care Plan (EHC Plan).
2. Mrs X said the effect of the missed SALT sessions has affected Y’s education and mental health.
3. Mrs X would like the Council to pay for the lost SALT provision to reflect the damage it has had on Y and his family.

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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. If we are satisfied with an organisation’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)

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How I considered this complaint

6. I have considered Mrs X’s complaint and have spoken to her about it.
7. I have also considered the Council’s response to Mrs X.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislation

9. 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.
10. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
11. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible.
12. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

What happened

13. Mrs X’s son, Y has SEN and the Council issued him with an EHC Plan on 11 May 2021. Y’s EHC Plan sets out the educational provision he needs.
14. The EHC Plan SLT provision was identified as:
• Consultative Model of service delivery with a review session of 45-60 minutes with an additional 45 minutes for the SLT to liaise with staff and parents each half term by a qualified and experienced Speech and Language Therapist.
• 3x1-hour training sessions by a qualified and experienced Speech and Language Therapist with knowledge and experience in Blank Levels of Questioning and an Evidence Based Social Communication programme e.g. Social Thinking Programme.
• The Speech and Language Therapist will also need to allocate 3-4 hours on an annual basis to reassess, report write and attend the annual review.
15. In July 2021, Mrs X complained to the Council that her son’s school had not been providing SALT as outlined in his EHC Plan.
16. During the Council’s investigation of the matter, Y’s school told the Council that it did not have access to SALT and had not therefore provided Y with the SLT provision identified in his EHC Plan. This information was confirmed on 21 September 2021.
17. The Council acknowledged the SLT provision should have been in place for two half terms and said the missed provision equates to:
• 1 hour 45 minutes in the summer term 2
• 1 hour 45 minutes in the autumn term 1
• 1 hour for assessment and report writing.
18. This was a total of 4 hours and 30 minutes of missed SALT provision. The Council apologised and offered Mrs X £350 in recognition of the missed provision. This was to be used for Y’s benefit, potentially to fund additional SALT sessions.
19. Mrs X argued that Y also missed out on the 3x1 hours sessions. She said this was broken down into:
• 2 hours of SALT time for devising and training staff to deliver a social skills programme, and
• 1 hour SALT time for training staff in blank level questioning.
20. Mrs X said this should have enabled Y to have a further 2x45 minute sessions per week. However, as the staff weren’t trained, he missed out on this.
21. Mrs X said this all adds up to Y missing out on 7.5 hours on SALT provision. She requested an increased payment from the Council.
22. The Council said the 3x1 hour training sessions were to be delivered across the school year and the training applied to staff. Therefore, it said it would not offer any further financial redress.

My findings

23. It was the Council’s duty to secure the specified special educational provision in a Y’s EHC plan. Therefore, even though the Council relied on the school to make the provision, the Council remained responsible. As the school failed to provide SLT sessions, the Council was at fault.
24. Mrs X disagrees with the Council’s calculations for the lost SLT provision. My view is that the 3x1-hour training sessions are for school staff as stated by the Council. The EHC Plan does not specify a half-termly or termly provision of these hours. On balance, where a timescale is not specified, it means annually, for the period of the EHC Plan. The Council was not at fault in its calculations of the lost provision at that time.
25. The Council based its offer of £350 on 4.5 hours of lost provision. Private SALT sessions generally cost between £60 and £90 per hour. Multiplied by 4.5 hours, this would equate to £270-£405. Therefore, the £350 offered by the Council seemed a reasonable financial remedy for two half terms of missed SLT provision.
26. However, since the Council first offered the £350, two further half terms have passed. Y remained at the school until March 2022 with no SALT provision. It was only, after a Tribunal that Y moved to a specialist school with SALT provision. Therefore, the Council has agreed to offer a further £350 for the additional two half terms.
27. The Council has agreed to pay Mrs X £700 to remedy the injustice Y experienced from missing out on SLT provision.
28. The Council has also agreed to pay Mrs X £100 for the time and trouble it has taken her to pursue this complaint and for the distress caused by the Council’s fault.

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Agreed action

29. Within 4 weeks of my final decision, the Council has agreed to:
1. Pay Mrs X £100 for the time and trouble it took for her to pursue this complaint and for the distress caused.
2. Pay Mrs X £700 for the missed SLT provision.

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Final decision

30. I have completed my investigation. The Council was at fault for failing to ensure that Y received the correct SLT provision set out in his EHC Plan. The Council has agreed a financial amount to remedy the injustice experienced by Y.

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Investigator's decision on behalf of the Ombudsman