Summary: Mrs C says the Council failed to put in place speech and language therapy provision following a tribunal. The Council put in place speech and language therapy between October and December 2022 but has not put in place any provision since then, which is fault. An apology, payment to Mrs C and action to put in place speech and language therapy promptly is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complained the Council:
• misrepresented the ability of the school to meet her son’s special educational needs at the tribunal in 2022;
• named an inappropriate school in her son’s education, health and care plan (EHCP); and
• failed to put in place speech and language therapy provision for her son following a tribunal in 2022.
2. Mrs C says fault by the Council means her son has been unable to access an education or his special educational needs provision and this has had a significant effect on her family.

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What I have and have not investigated

3. I have investigated Mrs C’s concerns about the failure to put in place speech and language therapy provision for her son following tribunal in 2022. I have not investigated Mrs C’s concerns about the school named in her son’s EHCP or the representations the Council made at tribunal about the ability of the school to meet her son’s special educational needs..

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The Ombudsman’s role and powers

4. A child with special educational needs may have an 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.
5. 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.
6. The first-tier tribunal (special educational needs and disability) considers appeals against council decisions regarding special educational needs.
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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)
9. 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)
10. 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

11. As part of the investigation, I have:
• considered the complaint and Mrs C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
12. Mrs C and the organisation 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

What should have happened

13. When an EHCP is maintained for a child or young person the local authority must secure the special educational provision specified in the plan.

What happened

14. Mrs C’s son has educational needs and has an EHCP. Mrs C appealed in relation to sections B, F and I of the EHCP issued following a review in February 2021. That appeal was heard by tribunal in June and July 2022. The first-tier tribunal made its decision on 4 August 2022 and directed some changes to the provision in section F for speech and language therapy. The tribunal decided the school named by the Council was an appropriate school for Mrs C’s son.
15. At the beginning of September Mrs C contacted the Council to say the Council would be breaking the tribunal ruling by insisting her son attend the allocated school as there was no specialist speech and language therapy provision available. In response the Council told Mrs C it had agreed to provide/fund additional support to the school to put in place the speech and language therapy.
16. The Council contacted Mrs C again on 8 September to tell her it had arranged speech and language therapy within the allocated school. The Council told Mrs C this would involve once a week direct intervention with a speech therapist. The Council said this would only be available until the end of term 2 (December 2022) and recruitment to replace the staff member would continue. The Council said the school would aim to book the teaching assistant on a training workshop on cued articulation the following week.
17. Mrs C said she did not consider the arrangements adequate and said she wanted her son to attend a different school with an established speech and language team.
18. Mrs C subsequently complained to the Ombudsman and the Council again confirmed to Mrs C in October 2022 that it had provided additional funding for the allocated school to provide speech and language therapy to her son. That speech and language therapist was available until December 2022. From that point the Council accepts it has been unable to identify a speech and language therapist to take over.
19. Mrs C’s son has not attended the allocated school since September 2022.

Analysis

20. Mrs C says the Council failed to put in place speech and language therapy provision following tribunal in 2022. Mrs C says because the Council has not put the provision in place her son is unable to attend the school named in section I of his EHCP.
21. The evidence I have seen satisfies me tribunal reached its decision on Mrs C’s appeal in August 2022. That appeal decision meant the school the Council had named in section I was considered suitable for Mrs C’s son with the intention of the Council providing additional funding for the school to purchase in speech and language therapy provision. Given the tribunal decision was not made until the beginning of August when schools were on the summer break I do not criticise the Council for the delay putting any provision into place until October 2022. I am satisfied though the Council had speech and language therapy provision in place at the school between October and December 2022. I am aware Mrs C has provided evidence from the NHS about the difficulties it was having meeting demand for speech and language therapy during that period. However, both the Council and the school have confirmed the speech and language therapy was in place and accessible for Mrs C’s son between October and December 2022. I therefore do not criticise the Council for any lack of speech and language therapy provision before the end of December 2022.
22. The Council accepts though communication with Mrs C about the speech and language therapy provision and what the Council was doing could have been better. I consider failure to properly engage with Mrs C about the provision of speech and language therapy at the school likely contributed to her not feeling confident to send her son to the school between October and December 2022. All Mrs C knew by the beginning of October 2022 was that the Council had identified short-term speech and language therapy for her son to be delivered at the school in one session per week. I understand Mrs C’s concern about that provision given it does not match what is in her son’s EHCP. I also understand why Mrs C would have been reluctant to send her son to the school given there was no clear plan for how to deliver his speech and language therapy from the end of 2022. I consider the Council’s poor communication with Mrs C likely undermined any confidence she had in the Council to deliver the speech and language therapy in her son’s EHCP.
23. In this case it is clear there have been issues with the Council identifying suitable speech and language therapy provision from the end of 2022. So, currently Mrs C’s son is not able to access any speech and language therapy even if he were to attend the school. Failure to put in place that speech and language therapy from January 2023 is fault. I note the Council says it will look at approaching private speech and language therapists should the NHS continue to be unable to put in place any provision. It is clear though there is a significant issue with NHS provision of speech and language therapy in the area. Given the Council knew Mrs C’s son required speech and language therapy at the school I would have expected the Council to explore alternative provision before now. Failure to do that is fault. I am satisfied this has left Mrs C feeling the school is unsuitable for her son.
24. I am also satisfied there has been a delay putting in place a cued articulation workshop for teaching staff at school. That links to provision in Mrs C’s son’s EHCP and should have taken place in September. The Council has confirmed the teaching assistant did not attend the cued articulation training course until December. Although that is fault I do not consider that caused Mrs C’s son a significant injustice given Mrs C had not sent him to school and therefore he did not miss out on that provision due to fault by the Council.
25. So, I have found the Council at fault for failing to communicate effectively with Mrs C and put in place speech and language therapy provision from January 2023. I consider these failures have undermined Mrs C’s confidence in the ability of the Council to ensure the school puts in place the necessary provision for her son. That has, in turn, affected her willingness to send her son to school.
26. The Ombudsman normally recommends a financial remedy of between £200 and £600 for each month where a child with special educational needs does not receive the provision in the EHCP. In this case the situation is complicated by the fact Mrs C’s son is not currently attending school and is therefore not receiving any of the provision in his EHCP. I cannot seek a remedy for the missing education though, or for any other elements of the provision in the EHCP which are not related to speech and language therapy. That is because there is no evidence the school cannot put in place the other provision in Mrs C’s son’s EHCP and the Ombudsman cannot comment on whether the school is suitable for Mrs C’s son as that is a matter which has already been determined by tribunal.
27. The fact remains though that were Mrs C to send her son to the school he would be without his speech and language therapy as the Council has not identified a provider. I consider an appropriate remedy would be for the Council to pay Mrs C £300 per month for the missing speech and language therapy provision from January 2023 until the point at which the speech and language therapy is put into place. The amount I have recommended takes into account the fact the placement has been determined as appropriate by tribunal and the remainder of the provision in the EHCP could be put into place if Mrs C’s son attended school. I consider that amount appropriate even though I recognise Mrs C has not sent her son to the school, including for the period where there was speech and language therapy in place. That is because I consider the poor communication with Mrs C is likely to have contributed to her unwillingness to send her son to the school and that may have been avoided if the Council had communicated more effectively with Mrs C.
28. I also recommended the Council confirm with the NHS whether it is able to put in place speech and language therapy for Mrs C’s son at the school within the next term. If it is not, the Council should prioritise seeking an alternative private provider for speech and language therapy. In addition, I recommended the Council pay Mrs C £250 to reflect her time and trouble in pursuing the complaint. The Council has agreed to my recommendations.

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Agreed action

29. Within one month of my decision the Council should:
• pay Mrs C £300 for each month her son misses out on speech and language therapy from January 2023. The Council should continue to pay that amount up until the point at which speech and language therapy is in place;
• pay Mrs C an additional £250 to reflect her time and trouble in pursuing the complaint.
30. The Council should confirm with the NHS whether it is able to put in place speech and language therapy for Mrs C’s son within the next term. If it cannot the Council should prioritise seeking an alternative provider for speech and language therapy.

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Final decision

31. I have completed my investigation and uphold the complaint.

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Parts of the complaint that I did not investigate

32. I have not investigated Mrs C’s concerns about the Council naming an inappropriate school in her son’s EHCP. That is because that is a matter for which Mrs C has exercised her right of appeal. It therefore falls outside the Ombudsman’s jurisdiction.
33. Nor have I investigated Mrs C’s concerns about the information the Council provided to tribunal about the ability of the named school to meet her son’s special educational needs. That is because that is a matter connected with the tribunal proceedings which are outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman