Summary: Mr X complains the Council has failed to provide his son, Y, with the provision outlined in his Education, Health and Care plan. The Council has acknowledged it was at fault in securing the speech and language and occupational therapy. The Council has accepted our recommendations to remedy the injustice to Mr X and Y.

The complaint

1. The complainant, Mr X, complains that since February 2021, the Council has failed to provide his son, Y, with the speech and language therapy (SALT) and the occupational therapy (OT) as outlined in his Education, Health and Care (EHC) plan.

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What I have investigated

2. Where a parent has appealed to the SEND Tribunal, we cannot investigate what happened between the date the appeal right arose until the appeal is completed where it is linked to the matters appealed. So, the Council’s actions during that period are outside the Ombudsman’s jurisdiction. It also means we cannot seek a remedy for lack of education or provision during that period.
3. Mr X appealed Y’s EHC Plan at the SEND Tribunal in 2021 and on 21 December 2021 an agreement was reached with the Council and the appeal withdrawn. Therefore, I am only able to make findings on the matters complained of from January 2022.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’  and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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.
6. 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.
7. 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)
8. 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.

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How I considered this complaint

9. I considered Mr X’s complaint and the information he provided.
10. I considered the information I received from the Council in response to my enquiries.
11. Mr X and the Council were given the opportunity to comment on a draft of this decision. I considered comments received from Mr X and the Council before making this final decision.

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What I found

Relevant law and guidance

12. A child with special education 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. Section F sets out the special educational provision needed by the child or young person.
13. The Children and Families Act 2014 says local authorities are responsible for making sure that arrangements specified in EHC plans are put in place and reviewed each year. The Ombudsman cannot look at complaints about what is in the EHC Plan but can look at other matters, such as where support set out in an EHC Plan has not been provided or where there have been delays in the process.

What happened

14. Mr X’s son, Y, has special educational needs and an EHC Plan.
15. Mr X appealed to the SEND Tribunal about Y’s EHC plan. Over the course of the Tribunal proceedings, the Council agreed Y was unable to attend an educational setting. As a result of the agreement reached, Mr and Mrs X withdrew their Tribunal appeal and Education Other Than At School (EOTAS) was arranged following a Tribunal Order dated 21 December 2021.
16. The provision outlined in Y’s EHC Plan included 60 minutes a week of Speech and Language Therapy (SALT) and 90 minutes a week of Occupational Therapy (OT).

Occupational Therapy (OT)

17. Y was receiving OT provision until 31 October 2021. The OT provider was unable to continue to provide Y with the provision due to capacity. Y did not receive OT provision again until 3 May 2022. Y was discharged from the OT provider on 8 December 2022 because his needs could not be met by them. The Council has since been trying to source another provider.

Speech and Language Therapy (SALT)

18. The Council arranged an initial assessment for 17 December 2021. This assessment was unsuccessful because Y was dysregulated and unable to engage. A further assessment was arranged and took place in April 2022. Y began receiving SALT from August 2022 until the half term holidays in October 2022. SALT for Y resumed after the February 2023 half term holidays.

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Analysis

19. The Council was at fault for the delays in securing the SALT. The SALT assessment on 17 December 2021 was unsuccessful and the Council failed to arrange another assessment until April 2022. This meant Y was without the provision from January 2022 to August 2022 and again from October 2022 to February 2023. This is a significant injustice.
20. Y was not in receipt of OT from January 2022 until 1 May 2022 and again from 8 December 2022. The Council has yet to secure this provision for Y. This is fault.
21. I appreciate the Council is struggling to find therapists, but the law is clear councils are responsible for making sure that arrangements specified in EHC Plans are put in place.
22. I am also concerned that in response to my enquiries, the Council said it was “unsure of the exact date” SALT and OT for Y had stopped. The Council has a non-delegable duty to ensure the provision in an EHC Plan is being delivered. I would expect the Council to have obtained evidence to satisfy itself Y was in receipt of the provision in his plan, and it should have had a system in place to monitor this.

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Agreed action

23. To remedy the injustice caused by the faults, the Council has agreed that within four weeks of this final decision, it will:
• Apologise to Mr X and Y;
• Pay Mr X £3600 to reflect the missed SALT. We suggest Mr X uses this payment for Y’s educational benefit.
• Pay Mr X £1800 to reflect the missed OT. We suggest Mr X uses this payment for Y’s educational benefit also.
• Pay Mr X £300 to reflect his time, trouble and frustration.

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Final decision

24. The Council is at fault and it has agreed to our recommendations to remedy the injustice caused to Mr X and Y. I have now completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman