Summary: There was fault by the Council because it did not treat the appointment of a replacement speech and language therapist with the urgency it required, and because it entirely failed to begin commissioning a dyslexia support teacher for a long period because of an internal communication error. The Council has also since been unable to commission a dyslexia support teacher because of service failure. These faults, along with a poor standard of communication, have caused the complainant frustration, which the Council has agreed to remedy. It has also agreed to remind relevant staff of the importance of properly familiarising themselves with their cases.

The complaint

1. I will refer to the complainant as Mrs C.
2. Mrs C complains the Council has failed to implement elements of provision set out in the education, health and care plan it issued for her son, K. Specifically, she says:

• the Council has not arranged a replacement speech and language therapist since the previous one retired at the end of the 2021/22 school year; and
• the Council has never arranged specialist dyslexia support.

3. Mrs C also complains the Council has generally been poor in communicating with her.

Back to top

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)

Back to top

How I considered this complaint

5. I reviewed the Council’s correspondence with Mrs C and with a number of education providers, along with a chronology created by the Council and its covering letter in response to my enquiries.
6. I also shared a draft copy of this decision with each party for their comments.

Back to top

What I found

7. The following will be a summary of the key events relevant to this complaint. It will not detail everything that happened or every item of correspondence between the relevant parties.
8. K has been diagnosed with a number of learning and development disorders, including autism and dyslexia. Since 2021 he has been subject to an education, health and care (EHC) plan, which sets out the specialist provision he requires to support him in his education. The provision includes weekly sessions with a speech and language therapist and with a dyslexia teacher.
9. For ease of understanding, I will provide separate chronologies for each element of K’s provision.

Speech and language therapy (SALT)

10. K had been receiving regular SALT sessions, but on 9 June 2022, Mrs C informed the Council the therapist was due to retire shortly. The therapist had recommended a particular person to replace her, whom I will refer to as Ms P. Ms P had worked with K several years before, and Mrs C expressed her support for this proposal.
11. Mrs C said she had spoken to Ms P already, who had said she was happy to work with K again. Ms P contacted the Council herself the following day to confirm this.
12. On 12 July, the Council says it consulted with two alternative SALT providers. One of these was the Council’s own Communication and Interaction team, although the Council says it was already aware the team had no capacity at the time to provide a therapist for K. The other provider, a private organisation, did not ultimately respond to the consultation.
13. On the same day, the Council’s case officer called Mrs C. The officer noted Mrs C’s preference for Ms P to be appointed as the replacement therapist, but explained it was Council policy for such positions to be put to an open tender. The officer Mrs C had said the Council would need a good reason to arrange a different therapist than Ms P.
14. On 4 August, the Council contacted Ms P to enquire about her availability and costs. Ms P replied with this information the following day. On 9 August, the Council informed Mrs C it had contacted Ms P, but needed to complete ‘due diligence’ checks before it could commission her.
15. In September, Mrs C contacted the Council to ask about its progress with appointing Ms P. She expressed frustration that this had not been completed yet, given how long it had been since she had asked for it. She also complained she had not received a response to messages she had sent to the case officer.
16. On 16 September the Council’s commissioning manager contacted the case officer. He explained he had requested and received some information from Ms P, but that “there [was] no evidence apart from working for the NHS”, and that he would need to seek further information from her. The case officer emailed Mrs C to explain this.
17. On 10 October Mrs C contacted the commissioning manager direct for an update, and to explain the impact the missing provision was having on K.
18. The following day, an officer from the Council’s Speech Therapy team contacted Mrs C. She acknowledged it was not acceptable that K was not currently receiving his SALT provision, but explained it was important for the Council to complete its checks on Ms P before commissioning her. In particular, she said the Council required a Disclosure and Barring Service (DBS) check to be completed, and for this reason Ms P could not immediately start working with K. However, the officer said she would contact Ms P that day to discuss some options with her.
19. In the meantime, the officer said she could arrange for a therapist from the Speech Therapy team to begin working with K after half-term, to cover the provision until Ms P was able to take over. Alternatively, the officer said the team’s therapist could continue in the longer term, if Mrs C felt that was better for K. She asked Mrs C to provide her phone number so she could call and discuss the proposal.
20. Mrs C forwarded the officer’s email to the commissioning manager, asking for clarification on the DBS checks and other matters. She also advised at this point she had made a complaint to the Ombudsman.
21. An officer from the Communication and Interaction team emailed Mrs C again on 12 October to reiterate the offer to arrange a therapist immediately. She said the therapist could contact Mrs C the same week and begin working with K the following week. The officer emailed Mrs C again on 18 October to say the team was currently holding a place for K, but this would need to be allocated to another person if Mrs C felt it was not appropriate for K.
22. On 19 October Mrs C emailed the Council to express her preference for Ms P to be commissioned to work with K, to avoid having to introduce him to someone new.
23. After further correspondence, on 18 November the Council contacted the school to propose it commission Ms P, with funding from the Council. Mrs C spoke to a Council officer on 28 November, where the officer explained the school was currently considering the Council’s proposal. As an alternative, Mrs C could commission Ms P direct herself, with a personal budget from the Council to fund it. The Council says Mrs C said she would wait to hear the school’s decision before considering this.
24. The Council says it is still waiting for the school to confirm whether it will commission Ms P. It says it will ensure its Communication and Interaction team is approached to make SALT available, including additional sessions.

Dyslexia support

25. In May 2022 Mrs C submitted a formal complaint to the Council. She said the Council had had a duty to arrange dyslexia support for K since December, when her appeal to the SEND Tribunal had been concluded. Mrs C said she had understood at the time it would take longer than the statutory deadline of five weeks to arrange this; however, six months had now passed, and despite repeated requests from Mrs C, the Council had not provided any update on the arrangements.
26. On 1 June, the Council contacted Mrs C to confirm it had not yet commissioned dyslexia support for K. It apologised for this. It later explained in its formal complaint response this had been due to miscommunication between the officer responsible for the appeal and K’s case officer.
27. Later in June the Council sent consultations to two providers, to enquire about the availability and cost of dyslexia teachers. It also consulted with K’s school to identify whether it had any staff who could fill this role. The school replied to say it did not, but it believed another local school was in the process of training a staff member. Mrs C also provided the Council with a list of potential providers.
28. In July the Council consulted with three other providers. It then chased up responses to the consultations in August.
29. One provider identified a potentially suitable tutor and, in August and September, liaised with the Council and school to arrange an appropriate time for the sessions to be held without interfering with K’s general timetable. This was ultimately unsuccessful.
30. In November, the Council arranged some online dyslexia support sessions for K as an interim measure. After two sessions, Mrs C and the school fed back to the Council that the tutor was not suitable for K’s needs, and questioned whether he had the appropriate qualifications. The Council then cancelled the remaining sessions.
31. In December, the Council used a list of tutors compiled by the local dyslexia association to continue its search. It contacted three, but they either did not have capacity, were not qualified to the appropriate level or could only offer online sessions. The Council reconsulted with one of the previous providers it had contacted, but it again responded that it had no tutors available.
32. The Council says it is continuing its search for a dyslexia teacher for K as a matter of priority.

Back to top

Legislative background

33. 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.
34. 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. 

35. 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)

Back to top

Analysis

36. I will address each element of Mrs C’s complaint in turn.

Speech and language therapy

37. K had been receiving regular SALT sessions, but in June his therapist announced they were due to retire at the end of the school year. This meant the Council had approximately three months to arrange a replacement, to be in place for the start of the new year in September.
38. I am conscious of the difficulties the Council has experienced in seeking to commission Ms P. I understand Mrs C’s reason for preferring her to a new therapist, with whom K would be unfamiliar; but it is for the Council to decide what checks it needs a potential therapist to pass before being commissioned as a sole trader, as Ms P is. I cannot criticise it for deciding the information she had provided was insufficient, as this was a decision it was entitled to make.
39. The Council has suggested alternative ways for Ms P to work with K, including being commissioned direct by the school or by Mrs C herself, with Council funding, and both of these options remain open at the time of writing. The Council says it also offered Ms P the opportunity to work under its Communication and Interaction team on a zero-hours contract, which she declined.
40. I therefore cannot say the Council is at fault for not commissioning Ms P, and in fact it appears committed to finding ways to overcome the obstacles here. I also note the Council has offered, several times, for its Speech Therapy team to provide a therapist for K, as either an interim or permanent placement. Again, I understand Mrs C’s reasons for preferring Ms P, but I am satisfied the Council has, in the general sense, made appropriate arrangements for K to receive SALT provision.
41. I am, however, concerned at the general evidence of delay here. The Council was aware by 9 June the current therapist was due to retire, and that it needed to find a replacement by the start of the next school year in September. But it appears to have then done nothing substantive until 12 July, more than a month later, when it consulted with two providers, one of which was an in-house team the Council was already aware had no capacity.
42. It was nearly another month before the Council contacted Ms P to begin the commissioning process, despite being aware she was Mrs C’s preferred provider and had capacity to take K on. Given the subsequent and ongoing problems with commissioning Ms P, I cannot say this delay ultimately made any difference – it is quite possible the Council would still have been unable to commission her, even if it had started the process earlier. But this again speaks to the Council failing to act promptly when the clock had started ticking.
43. And, more critically, as soon as it became clear Ms P would not be in place for the beginning of the school year, the Council should have taken steps to find an alternative. It is therefore particularly difficult to understand why the offer of a therapist from the Speech Therapy team was not made until 11 October, more than a month into the new year.
44. I am again conscious Mrs C did not take up the offer from the Speech Therapy team. I also note she has not agreed to the Council’s suggestion she employ Ms P direct via a personal budget, pending the school’s decision whether to commission her; and that the school itself has yet to make a decision on this proposal. It is clear the Council has a limited range options to implement the SALT provision, but it has explored each one and taken steps to put provision in place. I do not consider, therefore, that it can reasonably be said the provision would now be in place were it not for fault by the Council.
45. However, I am still struck by what appears to be a lack of urgency on the Council’s part here, in dealing with what should have been a matter of priority. This is fault. While I cannot say this fault is directly responsible for the fact K has not received SALT provision so far this year, it has clearly caused Mrs C frustration, which is itself an injustice. I will discuss what the Council should do to remedy this injustice towards the end of this decision statement.
46. I find fault causing injustice in this element of Mrs C’s complaint.

Dyslexia support

47. Mrs C says that, at the point her appeal was concluded in December 2021, she understood there was likely to be some delay in implementing the dyslexia support element of K’s provision. However, after hearing nothing for six months, she considered the delay had become unreasonable.
48. The Council has explained the initial delay in seeking a dyslexia teacher was due to a miscommunication between the officer responsible for handling the appeal, and K’s dedicated case officer. The appeal officer did not explain the requirement to arrange dyslexia support when she handed over to the case officer; and the case officer did not then independently check what provision was due to be arranged, in the assumption the appeal officer had given a full explanation. The case officer was therefore unaware of the need to commission dyslexia support for K.
49. I acknowledge the Council has already accepted fault here, but I consider it important to stress how poor this is. The implication here is that the case officer failed to properly read K’s EHC plan. Given the plan is designed to give precise directions to the Council in what support it should be providing K, it is concerning that such an oversight could happen.
50. Again though, it is difficult to say what difference this has ultimately made. The Council has now been attempting to identify a dyslexia teacher for K for more than six months, but despite consulting with a range of different potential providers, its search has proved essentially fruitless. There is no reason to believe the Council would have had any more success even if it had started the search sooner.
51. This being the case, I consider this is an example of what we call ‘service failure’. Service failure is where an authority has been unable to discharge its duty for reasons entirely beyond its control, and despite its best efforts. A finding of service failure does not imply blame, intent or bad faith on the part of the authority involved, although we still categorise it as fault, and can consider what injustice it may have caused the complainant.
52. For the avoidance of doubt, I consider the initial handling error by Council officers in this case to be maladministration, for which the Council is to blame; but its continued inability to commission dyslexia support, since the original fault was identified, is service failure.
53. Either way, the injustice to Mrs C and to K remains the same, because he has not received the dyslexia support he is entitled to. This is particularly troubling because he is now in his GSCE year and thus at a pivotal stage of his education. Again, I will discuss what I consider the Council should do to remedy this at a later point in this statement.
54. I find fault causing injustice in this element of Mrs C’s complaint.

Poor communications

55. In its complaint responses, the Council also accepted Mrs C had often experienced delays in receiving responses when she had contacted it. The Council explained this was due to officers having extremely large caseloads, with managers being responsible for “in excess of 250 to 300 cases”. The Council accepted this did not excuse the poor response times Mrs C had experienced, but considered it served to explain it.
56. It is clear Mrs C’s frustration at the Council’s errors was compounded by the amount of time she found herself having to wait for it to respond on some occasions. Again, I consider the Council to be at fault here, although I acknowledge, as the Council says, that delays of this nature can be difficult to avoid when staff are working under high pressure.
57. I find fault causing injustice in this element of Mrs C’s complaint.

Back to top

Conclusions and remedy

58. There are several distinct points of fault here:

• the Council did not approach the question of SALT provision with the urgency it demanded;
• the Council entirely overlooked the requirement to arrangement dyslexia support provision for approximately six months, due to a communication error;
• the Council has been unable to identify suitable dyslexia support due to service failure; and
• the Council has delayed responding to Mrs C’s contacts.

59. I am unable to say any of these errors has made a substantive difference to the provision K has received. It does not appear either the SALT or dyslexia support provision would have been put in place any sooner, even if the Council had not been at fault. However, the faults have caused Mrs C frustration, which is an injustice. And I note the Council has offered Mrs C £250 in recognition of this injustice.
60. Where we find provision has been missed because of council fault, our normal approach is to recommend it offer the complainant a ‘tariff’ remedy payment. This is a payment based on the number of months provision has been missed, with the express purpose of being used for the benefit of the child or young person, principally by allowing replacement provision to be purchased for them.
61. But I do not consider this type of remedy to be appropriate here. This is because it appears clear the provision would have been missed even if the Council had not been at fault. This being the case, I consider it more appropriate for the Council to offer a payment to reflect Mrs C’s general frustration at the fault here, as it has done, rather than for anything more tangible.
62. I consider, however, that the situation calls for a payment greater than £250. The Ombudsman’s Guidance on Remedies says we will typically recommend a payment of between £100 and £300 for distress or frustration. But, given Mrs C’s frustration was caused by a range of different faults, I consider a remedy of £500 to be appropriate here. I make a recommendation to this effect.
63. Separately, I am also concerned at the implications of the communication error, which suggests the case officer failed to thoroughly read and process K’s EHC plan, despite being responsible for its delivery. Although the Council has acknowledged this fault, its response does not say it has taken any steps to avoid a recurrence.
64. I consider, therefore, the Council should circulate guidance to all relevant staff, highlighting what happened in this case, and reminding them of the importance of properly familiarising themselves with the contents of EHC plans they are responsible for, especially in cases which are new to them. I make a recommendation to this effect.
65. In response to my draft decision, the Council has agreed to my recommendations.

Back to top

Agreed action

66. Within one month of the date of my final decision, the Council has agreed to:

• offer to pay Mrs C £500, to reflect her frustration at its faults in this case; and
• circulate guidance to all relevant staff, explaining the internal communication error which occurred in this case, and reminding them of the importance of properly familiarising themselves with the contents of EHC plans they are responsible for, especially when a case is newly assigned to them.

67. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

68. I have completed my investigation with a finding of fault causing injustice.

Back to top

Investigator's decision on behalf of the Ombudsman