Summary: Mrs X complained the Council did not provide the speech and language therapy support and physiotherapy support set out in her daughter, Y’s Education, Health and Care Plan since the Council issued it in December 2021. The Council failed to provide the speech and language therapy provision between January 2021 and July 2022, and the physiotherapy provision between March and May 2022. The Council will apologise to Mrs X and pay her £650 to recognise the uncertainty and time and trouble caused to her and the lost provision for Y.

The complaint

1. Mrs X complained the Council did not provide the speech and language therapy (SALT) support and physiotherapy support as set out in her daughter, Y’s Education, Health and Care Plan since it issued it in December 2021. Mrs X said this was detrimental to Y’s ability to maintain the skills needed to function independently.

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What I have and have not investigated

2. I have investigated Mrs X complaint up until July 2022. In July 2022 Mrs X had the right of appeal to the SEND tribunal and in August 2022 Mrs X used that right of appeal. Mrs X appealed to the tribunal about the named school as she felt the current school could not provide the provision specified in the EHC plan, specifically the SALT and physiotherapy provision. Therefore, the lack of provision she complains to the Ombudsman about is inextricably linked to the matter she has appealed to the tribunal.
3. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

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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. 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)
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.

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How I considered this complaint

7. I read the documents provided by Mrs X and discussed the complaint with her on the phone.
8. I considered the documents the Council provided in response to my enquiries.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Special educational needs and disability Code of Practice: 0 to 25 years

10. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out Education, Health and Care (EHC) assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014
11. A child with special educational needs may have an 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.
12. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process. The council has a duty to secure the specified special educational provision in an EHC plan for the young person (Children and Families Act 2014, Section 42).
13. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement.
14. 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. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. There is also a right of appeal against a decision not to amend an EHC Plan. The right of appeal is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

What happened

15. Y is of secondary school age. She has learning disabilities and complex health conditions which means she needs support in many areas of her life. She has a physical health condition that becomes worse as she grows, she uses a wheelchair and has significant communication needs.
16. The Council issued Y’s EHC plan in March 2020. Mrs X appealed to the SEND tribunal about the named school, special educational needs and provision set out in the plan. Mrs X wanted Y to attend school B.
17. In November 2021 the tribunal issued its decision. It named the school Y was already attending and set out the educational provision. The tribunal made five changes to the provision which related to SALT and physiotherapy. The tribunal specified Y needed:
• ongoing advice, support and monitoring by a Speech and Language Therapist implemented on a regular and frequent basis; and
• ongoing advice and input from a physiotherapist implemented on a regular and frequent basis.
18. It said where the provision was not provided by the NHS the Council should ensure it was provided privately as the school did not have a SALT provision. The SALT and physiotherapist would provide advice to the school in implementing appropriate support for Y which would influence five other elements of provision set out in the EHC plan.
19. In December 2021 the Council issued Y’s amended final EHC plan which specified the provision above.
20. Records show in January 2022 the Council struggled to commission SALT due to a lack of private providers.
21. Mrs X contacted the school and the Council in March 2022. She said she was concerned the SALT and physiotherapy provision was not being provided in line with Y’s EHC plan.
22. The Council asked the school what SALT and physiotherapy provision Y was receiving in April 2022. It said half termly input would be regular and frequent. The school said the NHS SALT had met with Y and set new targets, but Y did not meet the criteria to be on their caseload. It did not mention physiotherapy.
23. In May 2022 the Council began trying to commission the SALT privately.
24. The school held an annual review meeting in May 2022. It recorded there was a physiotherapy plan in place, but the SALT provision was not.
25. The Council wrote to Mrs X in July 2022 and said it would maintain Y’s EHC plan. It told her of her right to appeal to the Tribunal if she disagreed with its decision.
26. Mrs X complained to the Council in July 2022. She said the SALT and physiotherapy provision was not in place. She said the school could not meet Y’s needs and she wanted her to attend school B.
27. Mrs X appealed to the SEND tribunal in August 2022 about the named school in Y’s EHC plan. She said the school was not providing the provision the tribunal had stated and she wanted Y to attend school B.
28. The Council wrote to Mrs X in August and said the school was appropriate for Y’s needs. It said:
• Y had half termly visits from the physiotherapist who reviewed her plan, posture, exercises, and equipment as appropriate which was in line with the requirements of her EHC plan; and
• it had difficulties commissioning independent therapists and so it had not ensured the advice, support and monitoring by the SALT was in place. It said it would make sure it was in place by October 2022.
29. Mrs X raised her complaint at stage two. She said the Tribunal said the school was appropriate on the basis the correct support and resources were available, and they were not. She wanted the Council to name school B.
30. The Council responded and upheld its previous complaint response. It said it had delayed in ensuring the physiotherapy was in place, but it was now arranged. It apologised for the delay in arranging the physiotherapy and SALT provision.

Overview of SALT and physiotherapy provision

31. The NHS SALT assessed Y’s needs in January 2022. They provided a new communication and eating and drinking plan for Y in March 2022. They reviewed Y’s targets in school and eating and drinking at home in June and July 2022. They told the school in June 2022 they were not commissioned to write reports. The Council stated the SALT provision was in place from September 2022. Mrs X stated the SALT provision was in place but was not fully in line with the plan.
32. The physiotherapist provided written guidance for the school in January 2022. They began monitoring Y’s needs and providing advice and guidance in May which continued monthly in June and July 2022.

My findings

33. The Council should have taken steps to ensure the provision specified in Y’s EHC plan was in place when it was first set up. This was particularly important as the Council knew the school did not have a SALT and the Council was experiencing problems in commissioning private therapies. The Council did not do so and that was fault. Although the NHS SALT was providing some support this meant Y was without the specified monitoring, advice and support from January to July 2022.
34. Y’s EHCP does not specify what is regular and frequent. The Council stated it believed half termly was regular and frequent. There is no evidence to suggest that this was not appropriate.
35. Y should have received regular and frequent physiotherapy advice and support. A physiotherapist completed a review in January 2022, and this should have been reviewed again in March 2022, but was not done until May 2022. That was fault and meant Y did not receive the provision in her plan between March and May 2022. The physiotherapy support was particularly important as Y had a physical health condition that was getting progressively worse and needed ongoing input.
36. The SALT and physiotherapy advice should have fed in to five other elements of Y’s provision the school was delivering. The lack of therapist input caused uncertainty to Mrs X about whether the other elements of provision provided to Y were appropriate to her needs.

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Agreed action

37. Within one month the Council will:
• write to Mrs X and apologise for the uncertainty caused to her and the injustice caused to Y by the delay in securing the specified SALT and physiotherapy provision; and
• pay Mrs X a symbolic £450 to recognise the injustice caused to Y to be used for Y’s educational benefit as she sees fit; and
• pay Mrs X £200 to recognise the uncertainty caused to her and the time and trouble she has been put to in pursing the correct provision for Y.
38. Within three months the Council will:
• ensure it has a robust system in place to ensure provision specified in EHC plans is in place where a new or substantially different EHC plan is issued; and
• review how it commissions private SALT services and implement any changes it identifies as necessary to ensure SALT can be commissioned without significant delay.
39. The Council will provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation. I found fault leading to injustice and the Council has agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman