Summary: Miss C said the Council did not provide speech and language therapy specified in her son X’s education, health and care plan. The Council was at fault for a failure to properly consider Miss C’s request for the therapy and for a delay in finalising a revised education, health and care plan. These faults caused injustice as X was not assessed for, and did not receive, the specified therapy for more than a year. The Council has agreed to apologise to Miss C and pay her a sum in recognition of this fault. It has also agreed to reconsider its decision not to provide X with speech and language therapy and finalise the education, health and care plan without delay.

The complaint

1. The complainant, Miss C, says the Council is at fault for a failure to provide her son, X, with speech and language therapy, (SALT) as was required in his education, health and care plan (EHCP).
2. Miss C says this has caused X injustice as he has not received the SALT he requires and his speech has failed to improve as it should have.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. 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. 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.
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 spoke to Miss C; I wrote an enquiry letter to the Council. I considered the evidence I had gathered alongside any relevant law and guidance.
7. Miss C 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

What should happen

Education, Health and Care Plans

8. The responsibility for providing support to children and young people with special educational needs (SEN) is shared between Councils and education settings.
9. Most children and young people will have their SEN needs met within early years settings, schools or colleges without any need for Council involvement. This level of support is known as SEN support. Children with more complex needs might need an EHCP. Councils are the lead agency for carrying out assessments for EHCPs and have the statutory duty to ensure the special educational provision set out in a child or young person’s EHCP is made available.
10. The EHCP is split into sections. The educational provision a child must receive is set out in section F. The school to be attended is named in section I. If a child has an EHCP, the Council has a duty to ensure the child receives the education specified in section F.
11. When preparing an EHCP, councils must gather advice from relevant professionals, including an educational about the child’s education, health and care needs, desired outcomes and special educational, health and care provision that may be required to meet identified needs and achieve desired outcomes’. (The SEND Code of Practice: 0 to 25 Years, (‘The Code’) 9.46, 9.49)

Councils’ duties to provide education

12. Councils must provide suitable education for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs. (Education Act 1996, s.19)
13. Parents have a right to educate their children themselves. Local authorities should have systems to identify parents who are home educating and to ensure that they are providing a suitable education. (Education Act 1996, ss. 7, 13a, 436a, 437)
14. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should:

• Provide suitable full-time education (or as much as the child’s health allows) as soon as they know the child will be away from school for 15 days or more;
• Address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; and
• Arrange alternative provision as quickly as possible where it is identified as necessary and make every effort to minimise disruption to a child’s education.

15. Local authorities should:

• Ensure the education the child receives is of good quality, preventing them falling behind their peers and allowing them to reintegrate into school as soon as possible.
• When reintegration into a school is anticipated, work with the school to plan for consistent provision during and after the period of education outside school. (Ensuring a good education for children who cannot attend school because of health needs. Statutory guidance for local authorities. January 2013)

Elective home education

16. Parents have a right to educate their children at home. If they do so, they take on financial responsibility for any costs involved, such as examinations. Councils do not regulate home education. However, the law requires councils to make enquiries about what education is being provided when a child is not attending school full-time. Councils should have a policy on elective home education setting out how they will engage and communicate with parents. The Department for Education recommends each council should:

• provide parents with a named contact who is familiar with home education policy and practice;
• contact home educating parents on at least an annual basis to consider the suitability of the education provided. Where there are no concerns, this contact is likely to be very brief;
• organise training on the law and diversity of home education for all officers who have contact with such families; and
• work cooperatively with other agencies such as health services to identify and support children who are being home educated.

17. Where a parent withdraws a child with an EHCP from school to home educate them, the Council no longer has an obligation to provide special educational provision in the EHCP. This is because the parents are deemed to be making their own suitable alternative arrangements.
18. Councils have a power, but not a duty, to provide support such as funding or therapy at home. The Code states that councils should fund the special educational needs of home-educated children where it is appropriate to do so (The Code, 10.30).
19. Children educated at home can have an EHCP (commonly where the Council is providing financial support or therapies or the family anticipates the child returning to formal education in future).

What happened

20. Miss C and her family live in the Council’s area. Her son, X was born in 2015. He has an autism spectrum disorder (‘ASD’), speech difficulties and other special educational needs.
21. The Council prepared an EHCP for X in 2019. While his assessment was taking place, Miss C wrote to the Council asking why no educational psychologist had assessed him. The Council said there was no educational psychologist available. It proposed issuing a draft EHCP without an educational psychologist’s report and amending it after one had been received.
22. The EHCP stated, among other things, that X required assistance in developing speech and language from a qualified teaching assistant and hours of SALT therapy annually.
23. Miss C appealed to the Tribunal in January 2020. The Council agreed to produce an amended EHCP and the appeal was withdrawn by consent in April 2020.
24. In 2020, after a review, the Council issued a revised EHCP for X, which included the following:

• direct involvement of SALT therapist for 21 hours per year,
• There was to be a qualified learning support assistant,
• Direct SALT sessions 15 hours per year. The SALT therapist to design a program to meet needs which would be incorporated into curriculum, and
• SALT therapist to provide annual report for review.

25. The Council says there were significant difficulties in providing this education in the summer term of 2020 because of the COVID-19 pandemic.
26. In September 2020, X returned to school. While he was there, he received the therapy specified in the EHCP. However, in October 2020, after an incident at the school, Miss C chose to educate X at home. Shortly thereafter, Miss C wrote to the Council and requested funding to allow her to provide SALT at home.
27. It is clear that the Council was concerned that X would not receive education in line with his EHCP. In early October 2021, an officer wrote, “we will need to consider whether we agree to fund [SALT etc]”. In late October 2021, the officer wrote again and said, “Remember…. I will be looking at the provision you are making against what it says in the Plan.
28. Miss C provided information and again requested funding for SALT. The Council took five months to reach a funding decision.
29. In March 2021, Miss C wrote to the Council clearly frustrated by the delay in reaching a funding decision.
30. X’s annual EHCP review was due in May 2021. In April 2021, she wrote to the Council saying she wanted a review as no educational psychologist provided input in the 2020 EHCP.
31. Miss C corresponded with the Council for some months, pushing for educational psychologist’s input in a review. The Council told her that there would be a delay because of a shortage of educational psychologists.
32. In July 2021, Miss C complained to the Council that she had been told in 2019 that was no requirement for an educational psychologist’s input into an EHCP. She demanded a review.
33. As Miss C had been requesting a review since April 2021 in any event, she became frustrated with the lack of progress, Miss C said she would commission an educational psychologist’s report privately and/or visit the Council personally to insist on an explanation for the continuing delay.
34. The Council soon found a suitable psychologist and wrote to Miss C in early August 2021 saying it had 14 weeks in which to complete a reassessment of special educational needs. It said an educational psychologist would be in touch in six weeks.
35. In September 2021, Miss C told the Council her solicitor had told her the Council should have been paying for X’s SALT for the last year while he was home educated. She wrote to the Council to request this.
36. In October 2021, the Council wrote to Miss C saying it had received a medical report but was still waiting for the educational psychologist report to finalise the revised EHCP.
37. Occupational therapy (OT) and educational psychologist reports were prepared in October 2021. The OT report said X had significant motor skill difficulties. The educational psychologist said X needed “a structured speech, language and communication programme as recommended by SALT services.”.
38. Miss C wrote to the Council in November 2021 requesting an update. In December 2021, an officer wrote to her saying it had not yet finalised Section A of the revised EHCP and required certain information again.
39. In December 2021, the Council wrote to Miss C confirming that X’s SALT therapy would not be reduced in the revised EHCP. A draft EHCP was issued. It stated that X required extensive support and therapy to help him develop his speech and language. This included:
• An individualised programme of SALT.
• The direct involvement of an experience SALT therapist.
• A fulltime support learning support assistant trained in ELKLAN and ASD training.
• No less than 15 hours per year of direct sessions.
40. In February 2022, the Council informed Miss C that it had decided not to pay for SALT for X. It said it was satisfied that X was receiving a suitable education at home.
41. Miss C did not agree with this decision. She said X had had no SALT since he left school. She also complained that the amount of SALT provision and other provision recommended by the OT in the new draft EHCP had been reduced. She complained to the Council and, later, to the Ombudsman.
42. An internal Council memo from April 2022 said, “if parental preference is for [X] to remain home educated, and the [Council] is in agreement with this arrangement, then the Council must arrange the special education provision in the plan working with the parent”.

Was there fault causing injustice?

Educational psychologist’s input into EHCP

43. Miss C has complained for some time about the lack of an educational psychologist’s involvement in X’s EHCP. Educational psychologist input in EHCPs is required and the failure to provide it was fault. However, I cannot say that this fault caused injustice as I cannot say that the EHCP would have been different with educational psychologist input.

Delay in providing revised EHCP

44. The Council should have provided Miss C with a fresh EHCP which she could have appealed to the Tribunal in May 2021. It did not do so and still has not done so. This is fault and it has caused Miss C and X an injustice. Miss C has spent time and trouble and suffered distress in pursuing the Council and X has lost the opportunity to have a different education.

Failure to provide SALT

45. Miss C says the Council has refused to provide the SALT specified in the EHCP since she withdrew X from school in October 2020. Miss C first asked the Council to provide this therapy to X at home in October 2020. The Council did not reach a decision not to do so for many months. This was fault.
46. In response to my enquiries, the Council said it, “did not provide any SEN provision while [X] was being home educated [because it was] satisfied that suitable education were (sic) being provided and that parents were making their own arrangements under s.7 of the Education Act 1996.”
47. This justification does not seem to fit with the facts. Educational psychologists’ reports prepared for Miss C and the Council after Miss C had withdrawn X from school said X required SALT and Miss C repeatedly told the Council that he was not receiving SALT at home and asked the Council to provide it. It is difficult to see, therefore, how the Council could have believed that the education received at home was, in that sense, suitable.
48. The Council then assessed X for a new EHCP in which it was again stated that he required SALT. The draft EHCP was prepared while the Council was refusing to provide this therapy. It is still a draft but it still recommends that X should have SALT but does not name a school in section I.
49. The Code is clear that councils have a power, not a duty, to provide elements of an EHCP which were being provided in a school setting after a child is withdrawn from school. That is to say, they do not have to provide it.
50. However, the Code says councils ‘should’ provide therapies such as SALT if it is appropriate to do so. This means in my view, that, if a council decides not to provide a therapy, it must consider the relevant facts and then reach a defensible professional decision on those facts explaining why it has reached this view.
51. In April 2022, an officer said that this therapy had to be provided while X was educated at home. It is difficult to reconcile the Council’s decision with this later statement.

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Agreed action

52. The Council has agreed that, within four weeks of the date of this decision it will do the following:
1. Send a written apology to Miss C,
2. Pay Miss C £400 in recognition of the time, trouble and distress she has been put to by the fault found,
3. Pay £500 to X in recognition of the loss of SALT caused by Council fault, and
4. On provision of receipts from Miss C, the Council has agreed to pay for the SALT fees Miss C incurred.
53. Within eight weeks of the date of this decision, the Council has agreed to:
1. Make a fresh decision as to whether to fund X’s SALT while he is educated at home. Any decision to fund this SALT should be backdated to October 2020,
2. Finalise X’s EHCP and write to Miss C informing her of her right of appeal, and
3. Carry out an audit of similar cases and inform anyone affected by the decision of its findings and write to the Ombudsman informing us of the results.

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Final decision

54. I have found the Council at fault. The Council has accepted my suggestion of a remedy and I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman