Summary: Miss X complains the Council failed to provide provision as specified in her daughter, Y’s, EHCP. We have concluded our investigation having made a finding of fault by the Council. The Council were at fault for failing to secure the provision as per Y’s EHCP and this caused an injustice to Y and Miss X. The Council has agreed to our recommendations.

The complaint

1. Miss X complains the Council have failed to provide SALT provision for her daughter, Y, as per her EHCP. Miss X also complains that Y has been unable to access full time nursery provision as per her EHCP. Miss X would like the Council to ensure the provisions are delivered consistently without further delay. Miss X would like the Council to provide a remedy to acknowledge the impact on both Y and her family as a result of the Council’s actions.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I liaised with Miss X and considered the information she provided. I also considered the information the Council provided. I considered comments submitted by Miss X and the Council in response to my draft decision.

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What I found

Relevant law and guidance

Special Educational Needs

5. A child with special educational 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
6. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
7. The council has a duty to secure the specified special educational provision in an EHC plan 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)

SEND Code of Practice

8. As per the guidance, where an EHC plan is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
9. The local authority is relieved of its duty to secure the special educational provision in the EHC plan, including securing a place in a school or college named in the plan, if the child’s parent or the young person has made suitable alternative arrangements for special educational provision to be made, say in an independent school or college or at home

Speech and Language Therapy (SALT)

10. SALT is a type of therapy that focuses on helping children improve their communications skills, including their ability to understand and use language, express themselves and interact with others. SALT is typically provided by a qualified speech and language therapy who has expertise in assessing and treating a range of communication difficulties in children.

Individual Needs Assistant (INA)

11. An INA is a professional who works in a school or education settings to support the learning and development of children who require additional assistance or have special education needs.

Commissioned Service

12. The Council commission the services of Therapists A, who are part of the Health Authority within the local area. They are a team of physiotherapists, occupational therapists, speech and language therapists, therapy assistants and administrators who provide an integrated therapy service for children and young people from birth to school-leaving age (16 or 19) with physical, occupational or speech and language difficulties.

Background

13. Y is four and has delayed language and communication skills. The Council issued an EHCP for Y in July 2021. Y attended Nursery A from January 2021.

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What happened

14. I have included a summary of some of the key events below. This is not intended to be a comprehensive account of everything that took place.
15. In January 2022, the Tribunal ordered the Council to amend Y's EHCP to include 30 hours education provision, including continuous 1 to 1 support. In addition, the Tribunal ordered that one-hour weekly sessions of speech and language therapy (SALT), for 39 weeks of the year be provided. Y’s current placement at Nursery A was also named in Section F of the EHCP.
16. Following the Tribunal hearing, the Council shared the updated EHCP with Therapists A. Therapists A acknowledged receipt of the EHCP but did not immediately deliver the SALT provision.
17. In March 2022, Nursery A informed the Council that it was only able to provide a maximum of 15 hours per week for children deemed appropriate for that education provision. Nursery A also informed the Council that it could not provide an INA for Y. Following advice from the Tribunal, the Council sought to establish a dual placement for Y, and place Y in a second nursery for the additional 15 hours of educational provision that could not be delivered by Nursery A. The Council says Miss X accepted this proposal in April 2022.
18. In March 2022, the Council contacted School A to discuss the feasibility of providing the 1 to 1 support and additional 15 hours education provision. Nursery A informed the Council that it believed Y’s needs were well met and that it was able to meet the outcomes without the need for 1 to 1 support. Nursery A informed Y that it would be unable to fulfil the provision of an INA, and additional 15 hours education provision without sufficient finance and recruitment as it would impact the safety, wellbeing and learning of the other pupils.
19. The Council says it contacted 19 nurseries to source an available placement for Y. The Council informed Miss X that a place was available at Nursery B and suggested Miss X visit the nursery. The Council says Miss X declined the placement and it was therefore unsuccessful in securing a second nursery placement for Y.
20. Miss X complained to the Council in April 2022 regarding failure to deliver provision as set out in Y’s EHCP. After Miss X complained that the SALT provision was not being delivered, the Council took immediate action to ensure it was put in place by Therapists A.
21. Y started School C in September 2022. Y is now supported full time and receives her SALT provision.

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Analysis

22. It is clear that the Council took steps to place Y in an alternative education setting to provide the additional 15 hours of provision that Nursery A could not deliver. The Council sought advice from the Tribunal, demonstrating its commitment to resolving the matter in the best interests of Y.
23. The Council contacted a total of 19 nurseries in the local area, and it identified an available placement at Nursery B. It is not known why Miss X declined the placement, but in any event, this did not relieve the Council from its duty to secure the provision for Y.
24. Further, as per Y’s EHCP, provision for 1 to 1 support was supposed to be in place for Y but was not. Nursery A informed the Council that although it felt it was able to meet the needs and outcomes of Y without the 1 to 1 support, it was unable to provide the provision without sufficient funding and recruitment.
25. As per paragraph 9, the Council is relieved of its duty to secure the provision in the EHCP if the child’s parent or the young person has made suitable alternative arrangements for special education provision to be made. Suitable alternative arrangements were not in place and the Council did not secure the full provision as specified in Y’s EHCP, and I have therefore made a finding of fault.
26. Despite the Council’s efforts, Y did not have access to the full 30 hours of education provision, nor did she have access to 1 to 1 support between February 2022 and the end of the academic year in July 2022. This has caused an injustice to Y as she has missed out on educational opportunities and experiences that she would have gained with the additional hours of support. This also has caused an injustice to Miss X, who has been impacted by a loss of opportunity having to care for Y when the provision should have been in place.

SALT provision

27. Following the Tribunal’s decision in February 2022, SALT provision should have been put in place and delivered to Y. The Council says it referred Y’s updated EHCP to Therapists A following the Tribunal decision and made the assumption that it would be actioned and put in place by Therapists A. The Council says this is the standard practice in referring cases to Therapists A but acknowledges that this was not successfully completed.
28. The Council missed an opportunity to ensure the provision was being provided by Therapists A. Had sufficient processes been in place to confirm and validate what was required by Therapists A, the provision likely would have been in place from February 2022.
29. The Council says it was first brought to its attention that the provision was not being delivered after Miss X complained to it in April 2022. Following this complaint, the Council took action to resolve the matter and SALT provision was put in place in May 2022. The Council said it would ensure the 39 sessions of SALT provision were delivered as per the terms of the Tribunal Order.
30. As per paragraph 7, the Council has a duty to secure the specified special educational provision in an EHCP for the child or young person. Although the Council took immediate action to resolve the matter, SALT provision was not originally in place between February 2022 and May 2022 when it should have been and here I have made a finding of fault. I do not consider that this has had a significant impact on Y, as the provision outcome could still be achieved.

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Agreed actions

31. As per our guidance on remedies, where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. I consider it fair to arrive around the mid-point of the recommended remedy, which acknowledges the comments provided by Nursery A, and that 15 hours of the educational provision was provided. Using a figure of £350 for four and half months (considering school holidays), I have arrived at an amount of £1,575.
32. To resolve matters and prevent similar issues occurring again, the Council has agreed to:
1. Pay Miss X an amount of £1,575. This is a symbolic payment to acknowledge the loss of educational provision that the Council should have secured, and the impact this has had on Y.
2. Pay an additional amount of £500 to acknowledge the loss of opportunity, distress and impact on Miss X and her family.
3. Explain what it will to do to ensure, where it commissions other organizations to make provision, sufficient processes are in place to reduce the risk of provision not being delivered.
33. The Council has agreed to complete action a and b within one month of the Ombudsman’s final decision and action c within two months of the Ombudsman’s final decision.

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Final decision

34. I have concluded my investigation having made a finding of fault by the Council. The Council failed to secure the provision as per Y’s EHCP and this caused both Y and Miss X an injustice. The Council has agreed to my recommendations.

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Investigator's decision on behalf of the Ombudsman