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Suffolk County Council (21 016 344)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 16 Jun 2022

The Ombudsman's final decision:

Summary: there was delay by the Council arranging Speech and Language Therapy for Mr F’s daughter, G, but the Council has offered an appropriate remedy. There are no grounds for the Ombudsman to recommend the Council refund Mr F’s legal expenses.

The complaint

  1. Mr F complains about delay by the Council arranging Speech and Language Therapy for his daughter, G. He instructed a solicitor to issue a pre-action protocol letter before action and asked the Council to pay the costs. The Council apologised for the delay, offered Mr F and G £100 and undertook to arrange any additional therapy G needed to catch up, but declined to pay the solicitor’s costs. Mr F is unhappy with the Council’s response.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have considered:
    • information provided by Mr F; and
    • information provided by the Council.
  2. I invited Mr F and the Council to comment on my draft decision.

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What I found

  1. Mr F’s daughter, G, has an Education, Health and Care (EHC) Plan maintained by the Council.
  2. Mr F was unhappy with the contents of G’s EHC Plan and appealed to the Tribunal. Speech and Language Therapy was agreed between the parties during the appeal. The Tribunal made an Order on 21 September 2021.
  3. Following the Tribunal, Regulations say the Council should make the agreed changes to G’s EHC Plan within five weeks of the Tribunal Order. Councils are expected to arrange the provision without delay. The Courts have held that the ‘bulk’ of the provision should be arranged within those five weeks.
  4. Mr F was anxious the Council should arrange the provision without delay, particularly in light of the national shortage of Speech and Language Therapists and previous criticism by the Ombudsman.
  5. He complains the Council ignored his repeated requests for information about who the Council had contacted, and when, while attempting to arrange the provision. He says this information would have reassured him the Council was making appropriate efforts and also assisted him in conducting his own search. He believes the Council was unreasonable in withholding the information.
  6. On 4 November 2021, Mr F instructed a solicitor to send a pre-action protocol letter before action to the Council. This is a preliminary stage of legal action against the Council.
  7. He later made a Subject Access Request and obtained information from the Council. He complains the Council did not begin its search for a Speech and Language Therapist until 4 October, and its efforts were not sufficiently urgent.
  8. The Council arranged for a Speech and Language Therapist already working at G’s school to deliver the provision. The first session took place on 7 December 2021.

Mr F’s complaint to the Council

  1. Mr F complained to the Council about delay securing G’s Speech and Language Therapy. He asked the Council to refund the solicitor’s fees. He wanted the Council to conduct an investigation into what he described as its ‘systematic and long-term failure to comply with its statutory obligations.”
  2. The Council apologised for the delay, offered Mr F and G a payment of £100, and undertook to arrange any additional therapy G needed to catch up. The Council declined to refund Mr F’s legal fees. The Council explained that it had recently commissioned another local authority to review its special educational needs service and was working on an action plan to address the issues raised in the review. The Council’s Education and Children’s Services Scrutiny Committee was overseeing the action plan.
  3. Unhappy with the Council’s response, Mr F complained to the Ombudsman.

Consideration

  1. The Council explained how it went about securing G’s speech and language therapy in its response to Mr F’s letter before action. It took the Council eleven weeks, six weeks longer than it should have done. The Council has accepted responsibility for the delay, apologised and offered a remedy: a payment of £100 and additional therapy to help G catch up. This is a suitable remedy.
  2. The Council explained that it did not share details of the therapists it had approached with parents because it had found in the past that intervention from parents could lead to potential providers being ‘lost’.
  3. The Council declined to pay Mr F’s legal fees. Our published guidance says we would only exceptionally ask a Council to refund legal fees. This may be when a case is particularly complex, for example. Mr F’s case was not complex. The issues were straightforward. There was no disagreement the Council was responsible for arranging the provision. Further, the Council was attempting to arrange the provision before Mr F’s solicitor sent the letter before action, so I could not say the solicitor’s letter was necessary or brought about a resolution. There are no grounds for me to recommend the Council refund the fees.

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Final decision

  1. I have completed my investigation. The delay arranging G’s provision was fault, but the Council has offered a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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