Summary: Mrs X complained about the Council’s failure to provide her daughter with a suitable education and support for her special educational needs since 2018. We found the Council to be at fault because it failed to provide speech and language therapy specified in the Education, Health and Care Plan since June 2020. To remedy the injustice caused by this fault, the Council has agreed to apologise, make a payment to Mrs X and her daughter X, take action to provide the service in future and increase the supply of therapists in its area. We have not investigated part of Mrs X’s complaint because she appealed to the Tribunal.

The complaint

1. Mrs X complains about the Council’s failure to support her daughter’s special education needs since 2018.
2. Mrs X complains the Council failed to provide speech and language therapy (SALT) as specified in her daughter’s Education, Health and Care Plan (ECHP) since May 2020.
3. Mrs X says the lack of SALT has had a detrimental impact on her daughter’s educational development and general well-being, particularly her ability to engage with her academic studies.
4. While the Council has accepted fault by not arranging SALT, Mrs X considers the remedy offered to be inadequate and does not properly reflect the significant ongoing injustice to her daughter, specifically her ability to engage fully in her other academic studies.
5. Mrs X also complains about the Council’s conduct at an annual review, failure to attend another annual review and its failure to respond to recommendations made by her daughter’s education provider. She says this caused both further distress and frustration.

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What I have investigated

6. My investigation has focused mainly on the Council’s failure to provide SALT since the ECHP was issued following a Tribunal Order in June 2020. Because SALT has not been provided at the time of issuing this draft decision statement, I have taken account of the injustice that has arisen since the Council issued its final complaint response in January 2022 to the end of September 2022.
7. I have not investigated part of Mrs X’s complaint for the reasons explained at the end of this decision statement.

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The Ombudsman’s role and powers

8. 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)
9. 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)
10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs.
11. 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.
12. 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

13. I considered Mrs X’s complaint and the information she provided. I made enquiries of the Council and considered its response.
14. Mrs X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Education and Health Care Plans

15. A child with special educational needs (SEN) may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.
16. After an EHCP is finalised, councils have a duty to ensure the special educational provision set out in the Plan is delivered. This duty is set out in the Children and Families Act 2014 and is non-delegable.

What happened

Background

17. This statement includes key events in this case and does not cover everything that happened.
18. Mrs X’s daughter, Child Y, has SEN. In June 2020, following a Tribunal hearing the previous month, the Council issued a final EHCP. This set out a requirement for weekly, one hour SALT sessions.
19. Shortly afterwards, Mrs X asked the Council to consult with the therapist who provided a report in 2018. Mrs X did not receive a response to this request, nor any further communication from the Council about SALT for a long time.
20. In June 2021, Mrs X raised the matter at Child Y’s annual review, held online. She says the Council’s SEN officer (Officer J) said it was not within her remit and left the meeting early. She also did not turn her camera on as everyone else had done.
21. Mrs X says this caused considerable distress and frustration to both herself and Child Y.
22. In September 2021, Officer J explained to Mrs X that the delay in arranging SALT was caused by a county-wide shortage of SALT therapists.
23. Frustrated by this response, Mrs X made a formal complaint to the Council.
24. While she was waiting for the outcome of her complaint, Mrs X identified a suitable therapist and passed her details to the Council in November 2021. The Council agreed to commission her services as well as additional session to make up for the lost provision. The therapist carried out two sessions in December 2021, but decided she did not have the relevant experience to continue working with Child Y. The Council says this is the likely reason why she was not deemed suitable as part of its own enquiries.
25. To date, no replacement has been found and so Child Y remains unsupported in this area of SEN. In response to my enquiry about what action is being taken to find a therapist since the Council’s final complaint response, it said the matter had not been raised by Mrs X.

The Council’s response to Mrs X’s complaint

26. In January 2022, the Council issued its final response to Mrs X’s complaint. In summary, the Council made the following points:

• It acknowledged significant delay in sourcing SALT provision caused by lack of supply in this area.
• It should have actioned Mrs X’s request to contact the therapist who carried out the initial report.
• It agreed to commission additional sessions to compensate for the lost provision.
• It agreed to make a payment to recognise the lost provision. The payment was £1700 to reflect the lost provision. A further £250 each to Mrs X and Child Y to acknowledge the distress caused and £150 to Mrs X to reflect the time and trouble she had spent making the complaint.
• It apologised for the SEN officer not explaining the technical reason for her not having her camera on during the June 2021 annual review meeting.
• It also apologised for the distress caused during this annual review meeting.
• The Council offered to meet with Mrs X to discuss the problems Mrs X had experienced to improve services going forwards.

27. Dissatisfied with this outcome and ongoing failure to provide SALT, Mrs X brought her complaint to the Ombudsman.

Analysis

SALT

28. The Council has a legal duty to ensure provision in an EHCP is delivered. I have reviewed the Council’s records to ascertain what action was taken to source SALT after the EHCP was issued in June 2020. The first record of such an enquiry having been made is in June 2021, one year later. The Council has not explained the reason for this significant delay. While I acknowledge the supply issues in this service area, I find the Council to be at fault for being unable to show it made any attempt to contact a therapist for a year.
29. In addition, during this time there is no evidence that the Council contacted Mrs X to keep her informed about the supply problem it was facing. I would expect to see this, when a service is not being provided. This poor communication is further fault. I have made recommendations below to reflect this.
30. In response to Mrs X’s complaint the Council accepted that it did not provide SALT provision from June 2020 to December 2021 and apologised. It also offered to make a payment to Mrs X to recognise the impact of this missed provision.
31. Because the Council has accepted fault it is not necessary for me to investigate this aspect of the complaint further. It is clear the matter was allowed to drift for an unacceptable period of time and communication with Mrs X was poor.
32. It is disappointing that despite the Council’s acknowledgement of fault, it has yet to arrange SALT for Child Y. The Council’s response to my enquiry about this strongly indicates no action has been taken since its complaint response in January 2022. The fact the matter was not raised by Mrs X at the recent annual review is irrelevant to my assessment, particularly as a council officer was not in attendance.
33. In any event, this does not absolve the Council of its statutory duty to ensure services specified in the EHCP are delivered. It is understandable why Mrs X questions the sincerity of the Council’s previous apology when it has done nothing to put the matter right since.
34. This continued failure to meet the need for SALT is further fault that requires an additional remedy (below).
35. I must also consider whether the Council’s previous remedy was adequate.
36. The Council has explained its remedy of £100 per month was based on a previous recommendation made by the Ombudsman in respect of another, similar complaint. I agree this is an appropriate amount to acknowledge the impact of being without SALT and is in line with the Ombudsman’s Guidance on Remedies.
37. I have made further recommendations to remedy the distress and frustration to both Mrs X and Child Y caused by the Council’s poor communication and failure to arrange SALT since its final complaint response.

Annual review

38. Mrs X also complains about the Council’s conduct at the 2021 annual review, conducted via Zoom. She says Officer J did not have her camera on, left the meeting early without explanation and gave a dismissive and rude response when asked about SALT. Mrs X says this left both her and Child Y extremely distressed and upset.
39. In its complaint response, the Council apologised for Officer J not explaining why her camera was turned off and for the impact of the meeting. I accept online meetings pose certain technical challenges when officers are working from home and because the Council has apologised, I do not intend making a finding of fault about this matter.
40. In the absence of any contemporaneous notes from this meeting, I do not have sufficient evidence to make a finding in respect of Officer J’s other conduct during the meeting. In any event, the Council’s apology is an appropriate remedy for any distress caused.

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Agreed action

41. In addition to the remedy payment already offered to Mrs X, the Council has agreed take the following action within four weeks from the date of my final decision:
1. Apologise in writing to Mrs X and Child Y.
2. Pay Mrs X £250 to acknowledge the additional distress and frustration caused by the Council’s poor communication and continued ongoing failure to provide SALT.
3. Pay Child Y £250 to acknowledge the additional distress and frustration caused by the Council’s continued ongoing failure to provide SALT.
4. Pay Mrs X £900 (based on a monthly figure of £100) to acknowledge the failure to provide SALT between January and September 2022.
5. Make immediate arrangements for Child Y to receive her SALT provision in accordance with her EHCP. The Council will confirm dates and availability with Mrs X in advance.
6. Where compliance with (e) (above) is not possible due to lack of availability, if Mrs X is happy to receive a direct payment to make the arrangements herself, the Council should consider doing so.
7. Take action, at a senior level, to address the shortage of SALT provision in the Council area. It should also take action to ensure communication with parents is improved. The Council should provide a report to the Ombudsman to confirm what it proposes to do.

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Final decision

42. I have found the Council to be at fault and the Council has agreed with my recommendations to remedy the injustice and improve its services. On this basis I have completed my investigation

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Parts of the complaint that I did not investigate

43. I have not investigated Mrs X’s complaint about the Council’s actions from 2018 to June 2020. This is because Mrs X appealed to the Tribunal and this aspect of the complaint is outside the Ombudsman’s jurisdiction.
44. I have not investigated Mrs X’s complaint about the Council’s failure to attend or address matters raised during the April 2022 annual review. This is because the Council is still in discussions about this with Child Y’s education provider. Mrs X’s complaint about this is therefore premature.

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Investigator's decision on behalf of the Ombudsman