Summary: Ms Y complained the Council failed to provide the support set out in, her son, Z’s Education, Health and Care (EHC) Plan. We have found fault by the Council in failing to make appropriate provision, together with communication failures, causing injustice. The Council has agreed to remedy this by apologising and making payments to acknowledge Z’s loss of education and reflect Ms Y’s time and trouble.

The complaint

1. The complainant, who I am calling Ms Y, complains the Council failed to provide her son, who I am calling Z, with the Occupational Therapy and Salt and Language Therapy set out in his EHC Plan issued in May 2021.
2. Ms Y says the failure to make this provision means Z has not received the support he needs at school. His missed provision has caused her additional distress and worry.
3. Z has been without this support for more than a year. Ms Y wants the Council to put his provision in place without any further delay.

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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. 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. 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)
7. 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

8. I spoke to Ms Y, made enquiries of the Council and read the information Ms Y and the Council provided about the complaint
9. I invited Ms Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education, Health and Care Plan (EHC Plan)

10. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
11. Councils have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)

What happened

12. I have set out a summary of the key events below. It is not meant to show everything that happened.
13. Z has Special Educational Needs (SEN). He has a diagnosis of Autistic Spectrum Condition (ASC). He has an EHC Plan.
14. Following an appeal about Z’s SEN provision, the SEND Tribunal ordered the Council in April 2021 to provide Z with Occupational Therapy (OT) and Speech and Language Therapy (SALT).

May 2021 to December 2021

15. On 27 May the Council issued Z’s Final Amended EHC Plan, pursuant to the SEND Tribunal order. This included the following provision:

• SALT to be provided by a specialist therapist for a minimum of 45 minutes a week, together with two 30 minute 1:1 social skills sessions a week; and
• Weekly direct sessions with an experienced Occupational Therapist, registered with the Health and Care Professionals Council and trained in Sensory Integration Therapy (SIT).

16. In September Ms Y contacted the Council’s SEN team to ask about Z’s provision.
17. The Council realised at this point, due to an administrative error, it had not taken action to arrange Z’s provision following the issue of his plan in May.
18. In October, the Council’s SEN team contacted its Communication and Interaction (C&I) Team about Z’s SALT provision. The C&I team told the SEN team it had no availability until March 2022. The Council then contacted a number of independent SALT providers about Z’s provision.
19. Z had been attending SIT sessions at a therapy clinic for children with SEN (SH) for a number of years. The Council asked SH to carry out Z’s OT assessment.
20. In November, SH told the Council it had arranged an assessment appointment for Z. However, due to communication failures Ms Y had not been told about this. The Council asked SH to rearrange the assessment.
21. In December, Ms Y asked the Council for an update about Z’s provision.

January 2022 – Ms Y’s complaint

22. Ms Y complained to the Council about its failure to make the provision in Z’s EHC Plan.
23. In its response to Ms Y’s complaint, the Council said it:

• accepted there had been a delay commissioning Z’s OT and SALT provision. It had approached several therapists but none had capacity to provide this for Z;
• accepted it should have communicated with Ms Y more frequently to keep her updated about its search;
• accepted due to miscommunication, Ms Y had not been told about the assessment appointment with SH;
• apologised for the delay in commissioning the therapies;
• would renew its search for an independent SALT therapist. In the meantime, its C&I team could provide lower level direct work and provide a programme for school to carry out; and
• would arrange a new OT assessment appointment with SH.

Z’s SALT provision – January 2022 to May 2022

24. The Council made further referrals about Z’s provision to independent SALT providers.
25. Its C&I team added Z to their list and confirmed he would be allocated a SALT therapist as soon as possible. It had told the Council it could provide some interim support but not all the provision in Z’s plan.
26. On 29 April the C&I team confirmed one of its therapists would assess Z for his SALT provision before the start of the May half term. I understand there were difficulties in arranging an assessment and because of this no interim support was provided for Z before the end of the summer term.

Z’s OT provision – January 2022 to May 2022

27. The Council continued to contact SH about Z’s OT assessment.
28. On 1 February it told Ms Y it had asked SH to arrange an assessment.
29. SH told the Council it had not heard back from Ms Y about an assessment.

March 2022 – May 2022 Ms Y’s complaint

30. Ms Y told the Council she wanted to escalate her complaint. She said the Council had not replied to her messages. It should not take this long to put Z’s provision in place. He was in year 4 when the process started and now had only one more year at junior school.
31. In its complaint response in May, the Council said:

• SH had been trying to contact Ms Y to arrange an appointment for Z’s OT assessment but had not heard from her;
• It had arranged for some interim SALT support and was still looking for an independent provider for the full support;
• It could not find any unreturned calls or messages since its last letter but accepted its updates could be more frequent; and
• It accepted not all Z’s provision was being made.

32. Ms Y told the Council she was not happy with this response. She also said SH were not Occupational Therapists. They could not assess Z for OT. SH could only provide SIT.
33. Ms Y brought her complaint to us in May 2022.

September 2022

34. The Council found an independent SALT provider for all of Z’s SALT provision. This provision was put in place in September.
35. The Council contacted the school about a meeting with Ms Y to discuss Z’s OT, any barriers Ms Y had to working with SH and any alternative routes to providing Z’s OT.

Council’s response to Ms Y’s complaint to us

36. The Council has told us it accepts the initial administrative error caused a significant delay in initiating referrals for Z’s OT and SALT provision. It also accepts there were further delays in communication which were due in part to its SEN team’s lack in capacity in the period from May 2021 to August 2022.
37. It has now appointed additional caseworkers and an SEN officer to address these capacity issues.

My findings – was there fault by the Council causing injustice?

Z’s SALT provision

38. Z’s SALT provision should have been in place from 27 May 2021, as set out in his amended EHC Plan. No SALT was provided for Z until September 2022. This is fault by the Council. Because of this Z has missed out on the SALT support he should have received.

Z’s OT provision

39. Z’s OT provision should have been in place from 27 May 2021, as set out in his amended EHC Plan. This had still not been arranged for Z as at September 2022. This is fault by the Council. Because of this Z has missed out on the OT support he should have received.

Impact on Z of the missed OT and SALT provision

40. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child.
41. I have considered the impact on Z of the loss of educational provision. He is a child of primary school age with SEN. He has missed out on important SALT and OT support for more than one whole school year at a stage when children are developing essential literacy, numeracy and social skills. For these reasons, I consider the payment should be at the middle of the scale until September 2022, when SALT was put in place and continue at the lower end of the scale until his OT provision started/starts.

Communication issues

42. The Council has accepted there were communication failures, and it did not keep Ms Y properly updated about the position with Z’s OT and SALT provision. This is fault by the Council. This caused Ms Y uncertainty and worry about when Z’s provision would start, and time and trouble chasing the Council for updates.

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Agreed action

43. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:

• apologise to Ms Y for its failure to provide Z’s SALT and OT support from May 2021 and its communication failures;
• pay Ms Y £300 to reflect the time and trouble caused by the communication failures. This figure is a symbolic amount based on the Ombudsman’s published Guidance on Remedies;
• pay Ms Y £400 for each school month of OT and SALT provision Z missed from 27 May 2021 to September 2022. I have assessed this as being 10.5 school months (excluding holidays) making a total of £4,200. This payment should be used for the benefit of Z’s education; and
• pay Ms Y £200 for each school month of OT provision Z missed from September 2022 until this provision was or is put in place This payment should be used for the benefit of Z’s education.

44. The Council should provide us with evidence it has completed the above actions.

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Final decision

45. I have found fault by the Council causing injustice. I have completed my investigation on the basis the Council will carry out the above actions as a suitable way to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman