Summary: Miss X complained that the Council failed to provide all the speech and language provision set out in her son’s Education, Health and Care plan. She said this impacted on her son’s communication skills, wellbeing, and confidence. She said it caused her unnecessary distress. We find the Council at fault, and this caused injustice. The Council will apologise, arrange some speech and language sessions, and make a payment to Miss X.

The complaint

1. The complainant, who I refer to here as Miss X, complained that the Council failed to provide the provision set out in her son’s Education, Health and Care plan.
2. Miss X said this impacted on her son’s speech and language progression and skills, wellbeing, and confidence. She said it caused her unnecessary distress.

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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 significant injustice, or that could cause injustice to others in the future 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. As I have said above, we cannot investigate late complaints unless we decide there are good reasons.
9. In this case, Miss X complained to us in March 2023 about the Council’s failure to provide certain provision set out in her son’s Education, Health and Care plan back to September 2021.
10. Miss X explained that she did not know about the lack of provision until October 2022. After which she complained in good time to the Council and to the Ombudsman.
11. I consider this a good reason for us to exercise our discretion and investigate Miss X’s complaint back to September 2021.

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How I considered this complaint

12. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
13. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies (updated).

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What I found

What should have happened

14. Education, Health and Care (EHC) plans set out the special educational provision required to meet a child’s special educational needs. Councils have a legal duty to provide the special educational provision specified in the EHC plan.

What happened

15. Miss X’s son, B, has special educational needs and an Education, Health and Care (EHC) plan.
16. In January 2021, B’s EHC plan said that a speech and language therapist (SALT) would provide six 30-minute demonstration sessions per term with a member of school staff. The EHC plan said the SALT would evaluate B’s progress and give advice about the level of ongoing speech and language intervention.
17. In April 2022, another EHC plan was issued, with the same provision as the 2021 EHC plan (as set out above).
18. In December, Miss X complained to the Council that B was not getting all of the speech and language provision he should have been.
19. In January 2023, the Council told Miss X it was “regrettable” that B had not received six termly sessions as set out in his EHC plan.
20. In February, a new EHC plan was issued for B which reduced the number of termly 30-minute SALT demonstration sessions from six to three.
21. In March, the Council told Miss X that not all of the speech and language demonstration sessions with the SALT had taken place.

Analysis

22. Miss X complains that the Council failed to provide all the speech and language provision set out in her son’s Education, Health and Care plan. Miss X complains about the following terms: autumn, spring, and summer terms for the academic year 2021/22; and autumn term for the year 2022/23.
23. Throughout the period I have investigated, B’s EHC plan said a speech and language therapist (SALT) would attend B’s school six times per term for demonstration sessions.
24. There is evidence that a SALT attended B’s school for demonstration sessions the following number of times in these terms:
• Five sessions in the autumn term 2021/22
• Eight sessions in the spring term 2021/22
• No sessions in the summer term 2021/22
• Three sessions in the autumn term 2022/23
25. Given that a SALT attended more than six times in the spring term (2021/22), I find this makes up for the one missed session the term before (autumn term 2021/22).
26. The Council accepts that B did not get any demonstration sessions from a SALT in the summer term. This is fault. The Council says this was due to the NHS’s “capacity issues”.
27. I also find the Council at fault because B only got half the speech and language demonstration sessions he should have received in the autumn term 2022/23. B’s EHC plan was not amended to say three sessions, rather than six, until February 2023, which is after the terms I have investigated.
28. I find this fault caused B injustice. Even though school staff delivered speech and language sessions with B, there was no evaluation of B’s progress, no updated targets, and no modelling of new activities – all of which would have been done by the SALT during these six termly visits. This must have been detrimental to the development of B’s speech and communication. The provision during this time would have been based on professional recommendation, so we cannot assume there is no detriment to B if this did not happen.
29. I also find this fault caused Miss X injustice in that it caused her unnecessary and avoidable distress.
30. Miss X complains that a SALT recommended “direct therapy”. So, Miss X thought this meant a SALT would provide speech and language therapy directly to B. She did not think this meant a SALT would show school staff what to do, and the staff would then deliver it to B.
31. I have seen the SALT’s report which informed B’s EHC plans. It says that B will get direct speech and language therapy, but it does not say it would be from a SALT directly.
32. I find the EHC plan echoes the SALT’s report, which sets out that B will get daily speech and language input from school staff. This daily input would be shaped by the SALT who would come into school and deliver six 30-minute demonstration sessions to staff each term.
33. I therefore find that B has received direct therapy in line with his EHC plan.

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Agreed action

34. Within four weeks of this decision, the Council has agreed to apologise to Miss X for the injustice caused by the missed speech and language demonstration sessions.
35. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making this apology.
36. B missed a term and half of speech and language demonstration sessions, or nine sessions.
37. Within ten weeks of this decision, the Council will source, arrange, and pay for nine private speech and language therapy sessions for B. I consider this an appropriate and proportionate remedy for the impact of the missed provision.
38. Within four weeks of this decision, the Council has agreed to make a payment of £200 to Miss X to remedy the avoidable and unnecessary distress caused by the fault. This is in line with the Ombudsman’s guidance on remedies.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation. I find the Council at fault, and this caused injustice. I propose the Council apologises, arranges speech and language sessions, and makes a payment to Miss X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman