Summary: Mrs X complained about the Council not delivering specialist services outlined in her son's Education, Health and Care Plan since December 2020. We found the Council to be at fault because it failed to deliver provision specified. Mrs X has suffered avoidable frustration and distress in getting the issues resolved and her son has missed services he should have received. To remedy the injustice caused by this fault, the Council has agreed to apologise, make a payment to Mrs X, take action to provide the services in future and increase the supply of therapists in its area.

The complaint

1. Mrs X complains the Council has failed to provide her son with specialist services included in his Education, Health and Care Plan, since December 2020. She also complains the Council took too long to contact an occupational therapist. She says she is worried her son is not making appropriate progress. Mrs X says this has caused her considerable distress and frustration.

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What I have investigated

2. Paragraph six (below) applies to this complaint. I have exercised discretion to investigate Mrs X’s complaint back to December 2020 when her son’s Education, Health and Care plan was first finalised as the issues have been ongoing since this time.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

7. I have considered all the information Mrs X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

9. A child with special educational needs may have an Education, Health and Care Plan (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.
10. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
11. The council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

What happened

12. Mrs X has a school-aged son, Y, who has an EHCP which was first finalised in December 2020. The plan states he has “mild to severe speech and language difficulties”.
13. Section F of the EHCP specifies Y must receive:
• four sessions of speech and language therapy (SALT) in the year;
• six sessions of occupational therapy (OT) in the year; and
• relevant direct and indirect support such as reviews and time for therapists to liaise with school staff etc.
14. Mrs X has provided evidence from the local NHS integrated therapy service to confirm that by April 2021, the last time Y was seen by the OT service was November 2020.
15. The same evidence confirms Y’s most recent SALT contact was in November 2020 (for his EHCP assessment) and that before this it had been November 2019.
16. In May 2021, the Council and local NHS clinical commissioning group jointly sent a generic letter to parents and carers of children with special educational needs and disabilities (SEND). The letter explained the difficulties they (and other local authorities) were experiencing with capacity, recruitment and retention of staff. The letter also outlined changes that had been made to Section 42 of the Children and Families Act 2014 in May 2020, but that these had ceased in July 2020.
17. The letter further outlined how the Council and its partners intended to deliver provision through a combination of private therapists, private providers and recovery work over the school holidays leading into the autumn term. The Council hoped by the end of the autumn term that its commissioned provider would have enough capacity to meet need.
18. Y moved to secondary school and started Year 7 in September 2021.
19. In December 2021 and almost a year since his EHCP was first finalised, Mrs X complained to the Council that it had not delivered any of the outlined SALT and OT provision to Y. She complained the Council always gave the same response that there were not enough therapists and the school would be asked to attend training. Mrs X asked the Council to confirm when it would actually deliver the provision to her son.
20. Shortly after, the Council issued a stage one complaint response to this. In its letter, the Council:
• listed the EHCP provision for SALT and OT;
• attached the generic letter sent out in May 2021;
• attached a generic therapy update from November 2021; and
• advised it would discuss Mrs X’s concerns at the next SEND team meeting and then be in contact with her.
21. The Council’s chronology shows a discussion with the therapy manager a couple of days later.
22. In January 2022, Mrs X escalated her complaint to stage two.
23. The Council responded in February 2022. In this letter, the Council:
• confirmed Y had received nine 30-minute SALT sessions, delivered in school between March and July 2021;
• referred to the information sent out with its stage one response and repeated the information regarding difficulties finding trained therapists;
• confirmed that where the commissioned service could not deliver SALT, an independent therapist would be arranged instead; and
• confirmed it could not arrange OT from any private therapists due to a national shortage but that if Mrs X could identify a qualified person, it would pay for the OT until the end of the summer term of 2022.
24. Mrs X emailed the Council late in April 2022 to advise she had found a private therapist to deliver Y’s OT and gave the Council her contact details.
25. Twenty days later, the Council made contact with the therapist to enquire about the possibility of her delivering OT to Y. The therapist advised she would not be able to start until September 2022.
26. Mrs X was unhappy with this delay and thought the Council’s slowness in making contact was the reason why the therapist was now unable to start immediately.
27. The Council offered to approach other OTs, but Mrs X declined as by this time she had made a complaint to the Ombudsman and she wanted to await our response.
28. Mrs X has since advised that Y has received some SALT in school during September 2022 but was unsure on what had been delivered as she was unaware of it taking place until Y told her.
29. Mrs X has further advised that the integrated therapy service has been unable to confirm who delivered SALT to Y in September as the name of the therapist provided to Mrs X by the school is allegedly not someone who is on its provider list.

Analysis

30. In its generic letter and update sent out in May and November 2021 respectively, the Council admitted difficulties in sourcing and delivering provision across its SALT and OT services.
31. Neither communication provided concrete assurances that provision in EHCPs would be delivered. Instead, the Council hoped that the service would improve. This does not excuse the Council from its duty to deliver EHCP provision and it is at fault if provision is missed.
32. The Council’s stage one complaint response to Mrs X simply repeated what Y should receive and attached the generic communication that had already been sent out. In my view, this was a poor response to Mrs X asking when her son would get the provision outlined in his EHCP.
33. The letter also referred to the upcoming meeting that promised SALT provision and an OT review in February 2022. No evidence has been provided to say either took place. Nor has any evidence been provided to say Mrs X was informed of the meeting. This lack of communication and subsequent action is fault on the part of the Council and would have added to Mrs X’s frustration.
34. The Council has confirmed it has not been able to provide all of the provision specified in Y’s EHCP. It confirmed there was:

• some SALT provision in the academic year 2020 -2021;
• no SALT between July 2021 and February 2022; and
• no OT provision from December 2020.

35. The Council has a duty to deliver provision set out in the EHCP and any missing therapy is fault on its part. The Council has provided no evidence to say that any further SALT or OT were delivered after its stage two response.
36. Mrs X also complains about the Council’s failure to secure the services of the therapist she put forward. She says this was because the Council took 20 days to contact her.
37. Whilst I accept the Council could have contacted the therapist more quickly, there is no evidence that the therapist could have started immediately as claimed by Mrs X, even if it had done so. For this reason, I do not find the Council to have acted with fault here.
38. It is unlikely that this delay led to any further injustice being caused to Mrs X and her son Y.
39. Despite saying it was unable to source OT provision, the Council then offered to approach therapists on its approved provider list. This contradicted its previous position. This offer was only made in response to Mrs X’s complaint. There is no evidence that an improvement in OT supply led to this change. Children should not have to wait for their parents to escalate complaints before services are arranged.
40. It is clear to me that this would have added to the frustration and anxiety Mrs X was suffering.

Injustice

41. The evidence I have seen shows that Y has missed:
• all four SALT contacts for the academic year 2021-2022; and
• all six OT contacts in each of the academic years 2020-2021 and 2021-2022.
42. Mrs X has confirmed that Y has had one SALT session in September 2022, delivered at school.
43. Mrs X is rightly concerned about the effect this has had on Y and that the gap between him and his peers has widened further due to the continued lack of provision delivered as specified in his EHCP.
44. The Council provided no evidence of how it intended to deliver SALT and OT provision going forward, but instead sent me copies of the generic letter and update sent out in 2021. Taking this into account, it seemed likely that Y may also miss further EHCP provision in the current academic year. I have made recommendations below to address this.

Shortages in the local area

45. As part of the draft decision statement recommendations, I asked the Council to take action, at a senior level, to address shortages in SALT and OT provision in its area. I asked it to provide a report to the Ombudsman explaining its proposed actions. As part of its comments on my draft decision, the Council shared details of numerous actions already taken. These show steps are being taken to resolve issues and that progress is being made towards addressing both short- and long-term concerns. As such, we do not need further information from the Council about this.

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Agreed action

46. I acknowledge that some SALT has been delivered to Y, however, he has still missed a significant amount of his SEN provision.
47. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within five weeks from the date of this decision:
1. apologise to Mrs X and her son Y;
2. pay Mrs X £200 to acknowledge the time and trouble taken to make her complaint;
3. pay Mrs X a symbolic payment of £1000 to acknowledge the failure to provide SALT and OT as outlined above;
4. make immediate arrangements for Y to receive his SALT and OT provision in accordance with his EHCP. The Council will confirm dates and availability with Mrs X in advance; and
5. where compliance with (d) (above) is not possible due to a lack of availability, if Mrs X is prepared to receive a direct payment to make the arrangements herself, the Council should consider doing so.

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Investigator's decision on behalf of the Ombudsman