Summary: Mrs X complained the Council failed to ensure her child, D, received special educational needs support set out in their Education, Health, and Care plan. The Council failed to arrange replacement Speech and Language Therapy for D in good time, after Mrs X told it this was not in place. The Council agreed to apologise, pay a financial remedy, and issue a reminder to its staff with a copy of our decision.

The complaint

1. Mrs X complains the Council failed to secure special educational needs (SEN) provision for her child, D, in line with their Education, Health, and Care (EHC) plan, for the 2022/2023 school year. She also says the Council failed to keep her updated about these issues, respond to her queries, and turn up to agreed meetings. Because of this she says:
• D has regressed without the support they need, which has impacted their ability to communicate and access education. This has been harmful to their wellbeing; and
• Mrs X feels helpless, and has been caused stress, anxiety, and loss of sleep. She has also spent significant time and trouble chasing the Council which has caused her frustration.
2. Mrs X wants the Council to:
• apologise;
• arrange suitable SEN provision for D in line with their EHC plan;
• provide a financial remedy for the provision D missed, and for the frustration and time and trouble caused to Mrs X; and
• provide reassurance that it is aware of its legal obligations to children with SEN.

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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)

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How I considered this complaint

5. I considered:
• information provided by Mrs X and discussed the complaint with her;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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 found

What should have happened

Education Health and Care (EHC) plans

8. A child with special educational needs (SEN) may have an Education, Health, and Care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them.
9. Councils have a duty to secure the specified SEN 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)
10. We can look at complaints where support set out in an EHC plan has not been provided.
11. We cannot investigate complaints about what happens in schools unless it relates to SEN, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s EHC plan.
12. Councils must review EHC plans as a minimum every 12 months. The review process enables changes to be made to the plan, so it remains relevant to the child’s needs and desired outcomes. (SEND Code paragraphs 9.166 and 9.186)

The Human Rights Act

13. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act requires all councils, and other bodies carrying out public functions, to respect and protect individuals’ rights.
14. The First Protocol, Article 2 of the Human Rights Act says every person is entitled to an effective education.
15. Our remit does not extend to making decisions on whether or not a council has breached the Human Rights Act – this can only be done by the courts. But we can decide whether a council has had due regard to an individual’s human rights in its treatment of them, as part of our consideration of a complaint. In practical terms, councils will often be able to show they have complied with the Human Rights Act if:
• they can show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.

What happened

16. Mrs X’s child, D, is at primary school and has an EHC plan. The plan includes provision for Speech and Language Therapy (SaLT). For the period covered in this complaint, the education section of D’s EHC plan included the following SaLT provision.
• A minimum of 30 minutes per month direct intervention, and 30 minutes per month indirect support (including liaising with staff and writing care plans and reports), from a qualified SaLT therapist.
• One 60-minute session per week of targeted support, in school, with a SaLT therapist, trained school staff, and parents. This session was to include ongoing review of D’s use at home and in school of an augmentative and alternative communication (AAC) device.
• Two 10-minute sessions per day of targeted support, in school, with a SaLT therapist and trained school staff.
• For the first 6 months the plan was in place, one 2-hour Paediatric Autism Communication Therapy (PACT) session every other week, delivered by a PACT-trained SaLT therapist and school staff. This was to be followed by 6 months of one 2-hour PACT maintenance session every month. Plus, an annual review assessment by a PACT-trained SaLT therapist to measure D’s progress.
• Various other activities for trained school staff to undertake daily as set out in D’s speech, language, and communication care plan, including 15 minutes per day of structured social communication with peers.
• One 60-minute session per week in D’s home, for the SaLT therapist to work with the family.
• One home intervention/review appointment with the SaLT therapist and parents per term.
• One meeting with the SaLT therapist, parents, and school staff, at the beginning of each half term to review progress and agree new targets.
17. At the end of the 2021/2022 school year, when D was finishing Year 4, the Council reviewed D’s EHC plan and decided it should make no changes to D’s SEN provision.
18. In September 2022, D started Year 5. In February 2023, Mrs X told the Council D was not receiving the SaLT provision as set out in their EHC plan. At this point the Council ended its contract with D’s SaLT therapist.
19. In April 2023, Mrs X complained to the Council. She said she had continued to chase the Council, but it had not arranged a new SaLT therapist for D. The Council told Mrs X it was still working to source a new therapist. Mrs X escalated her complaint to Stage 2 of the Council’s process. The Council’s position on the complaint did not change at Stage 2, and Mrs X came to the Ombudsman in May 2023.
20. Three weeks after Mrs X came to the Ombudsman, the Council told her it had commissioned a new SaLT therapist for D. The new SaLT visited D three times in the last week of term before the 2022/23 school year ended.
21. In September 2023, D started Year 6, with support from their new SaLT therapist in place.

My findings

Speech and Language Therapy (SaLT) provided to D

22. I considered all evidence available and found the following about the SaLT provision D received from September 2022 to July 2023.
• During the 2022/2023 school year, D should have had six of the 2-hour fortnightly Paediatric Autism Communication Therapy (PACT) sessions referred to in their EHC plan, followed by the six 2-hour monthly maintenance sessions. D’s first SaLT therapist visited them at school four times between October 2022 and February 2023 to carry out PACT sessions. Each of these four visits was 1 hour long on average.
• D’s first SaLT therapist did not visit D in school at all other than those four PACT sessions.
• D received two 10-minute sessions per day of targeted support in school, delivered by school staff who had been trained by a SaLT therapist, but not by a SaLT therapist as was specified in the plan.
• The Council said D had use of an “augmentative and alternative communication (AAC) device” in school, with support from school staff who had been trained by a SaLT therapist. Mrs X said this was not the case.
• D’s second SaLT therapist visited them three times in the final week of term. These were introduction and observation sessions, not targeted support sessions as set out in D’s EHC plan.
• D also received some support from an NHS SaLT therapist, as set out in the health section of their EHC plan. I did not consider this, as my role is to consider the Council’s duty to secure the provision in the education section of the plan.
23. During the 2022/23 school year, D did not receive most of the SaLT provision outlined in the education section of their EHC plan.
24. However, the Council was not aware D was not receiving the full provision set out in their plan until Mrs X reported this in February 2023. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the SEN provision for every pupil with an EHC plan. We consider as a minimum councils should have systems in place to:
• check SEN provision is in place when a new or substantially different EHC plan is issued, or there is a change in placement;
• check the provision at least annually via the EHC plan annual review process; and
• investigate complaints or concerns that provision is not in place at any time.
25. When D began the 2022/2023 school year, this was at the same school, with the same EHC plan provision in place. I would not expect the Council to have checked provision was in place outside the annual review process. Therefore, the Council was not at fault in its actions before February 2023, when it became aware of the issue with D’s SaLT provision.
26. However, once the Council became aware of the issues in February 2023, it did not make suitable efforts to replace D’s SaLT therapist. It did not ensure it met its duties to secure the provision in D’s plan in good time. Mrs X repeatedly chased the Council, complained, and then came to the Ombudsman before the Council arranged a new therapist for D. This was fault, which left D without the required amount of SaLT provision for the rest of the academic year. This caused distress to both D and Mrs X. The Council should remedy the injustice caused.

The Human Rights Act

27. I am not satisfied the Council had due regard to D’s human rights under The First Protocol, Article 2, which entitles them to an effective education. It did not properly meet its duties to ensure they had an effective education in place. It did not properly consider the impact its decisions would have on them. This was fault.

Communication with Mrs X

28. I considered the communication between the Council and Mrs X about these issues. I found:
• the most significant gap in contact was a two-week period at the start of April 2023, after which Mrs X made her complaint;
• the Council responded to the complaint in good time and directed Mrs X to Ombudsman once it completed its complaints process;
• the Council updated Mrs X as soon as it commissioned the new SaLT therapist in early June 2023;
• in late-June 2023, while our investigation was ongoing, a senior member of Council staff agreed to meet with Mrs X. The Council accepted the staff member failed to show up to this meeting. Both the Council and Mrs X said the staff member rang Mrs X that evening to apologise; and
• in July 2023 Mrs X reported the new SaLT had told her they may pause support for D if they did not receive payment. The Council quickly resolved this issue and SaLT support was in place for the 2023/2024 school year.
29. The Council did not take suitable steps to replace D’s SaLT provider in good time, and I appreciate this caused Mrs X significant frustration and distress. However, I did not find fault with how the Council communicated with Mrs X and responded to her queries.

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Agreed action

30. As set out in our Guidance on Remedies, where we find fault has resulted in loss of educational provision (for example where a child is out of school), we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. Where there has been a loss of other provision, such as Speech and Language Therapy, the level of financial remedy is likely to be lower than that for loss of educational provision. We consider the level of provision missed and the impact of this on the child.
31. In deciding an appropriate financial payment to recognise the impact of D’s missed SaLT provision, I considered the following.
• During this period, D was in year 5 of primary school. As set out in our Guidance on Remedies, we do not consider this to be one of the most significant periods in a child’s school career, as we would say for the first year of primary or secondary school.
• D received some support from a SaLT therapist during 2022/2023, and support from school staff trained by a SaLT. However, they did not receive most of the SaLT provision the Council had agreed was necessary for them. The lack of necessary SaLT provided to D had a significant impact on their ability to communicate and to access their education.
32. Based on this, I consider a remedy of £700 for each term of missed SaLT to be suitable. This will apply from February 2023, when the Council became aware D did not have the necessary SaLT support in place.
33. Within one month of our final decision, the Council will:
1. apologise to Mrs X for the faults identified and the impact of those faults. Our Guidance on Remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making its apology; and
2. pay Mrs X a total of £1,550, comprising of:
1. £1,050 to recognise the 1.5 terms of SaLT provision D missed after the Council became aware this was not in place. This is intended for D’s future educational benefit;
2. £300 to recognise the avoidable distress caused to Mrs X by the Council’s failings; and
3. £200 to recognise the avoidable distress to D.
34. Within three months of our final decision, the Council will share a copy of our decision with relevant staff across its Special Educational Needs and Disability service. It will remind staff of the Council’s statutory duty to secure the SEN provision in a child’s EHC plan.
35. The Council will provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation. There was fault by the Council which caused D to miss special educational needs provision. It also caused avoidable distress to D and Mrs X. The Council agreed to our recommendations to remedy this injustice and issue a reminder to its staff with a copy of our decision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman