Summary: There was fault by the Council in ensuring the implementation of provision set out in an education, health and care plan. The Council was also entitled to refuse the complainant’s request for a personal budget, but it was at fault because it did not inform her she had the right to request a review of this decision. The Council has agreed to apologise for this, invite her to request a review now, and remind staff of this requirement.

The complaint

1. I will refer to the complainant as Mrs B.
2. Mrs B complains the Council has failed to secure the speech and language and occupational therapy provisions set out in the education, health and care (EHC) plan for her son, to whom I will refer as G.

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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)

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How I considered this complaint

4. I reviewed Mrs B’s correspondence with the Council, G’s EHC plan, and sought the Council’s comments on several points.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. G has Down Syndrome, and suffers a number of disabilities as a result. He is at a specialist school and is subject to an EHC plan. The plan sets out that G should receive speech and language therapy, including both direct sessions (involving G himself) and indirect sessions (discussions and reviews with his parents, teachers and other relevant parties). The plan also sets out that G should receive occupational therapy, in the form of a daily sensory diet.
7. In March 2023, Mrs B submitted a formal complaint to the Council. She said G had not been receiving the speech and language therapy hours required by the EHC plan, and that he had experienced a high turnover of therapists. Mrs B complained the Council’s therapy provider was not fit for purpose, asked the Council to provide a personal budget, to allow her to arrange a therapist herself.
8. Mrs B also complained G was not receiving the daily sensory diet required by his plan, because the therapy provider had told her this was not a service it offered.
9. The Council responded to Mrs B’s complaint in April. It said its panel had considered Mrs B’s request for a personal budget, but had not agreed it because it would “have an adverse impact on services provided” by the Council through the provider.
10. It said it had discussed the speech and language therapy with the provider, and was satisfied G had received his allocated number of speech and language therapy hours. However, it acknowledged the inconsistency arising from the high turnover of therapists had affected G’s progress, and said it was working with the provider to ensure better consistency going forward.
11. The Council said the occupational therapy element of the plan should be led by the school, with advice from their own therapists. It said the school could seek further support if required, with G’s EHC plan being amended if necessary.
12. Mrs B referred her complaint to the Ombudsman in June.

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Legislative background

13. A child or young person with special educational needs may have an education, health and care plan. This sets out the person’s needs and what arrangements should be made to meet them.
14. The EHC plan is set out in sections. Councils are responsible for making sure that arrangements specified in the EHC plan are put in place.
15. A person can request a personal budget for part or all of the provision required by their EHC plan. A personal budget can be delivered in different ways, including by the use of direct payments. This is where the council pays money direct to the person or their parents or representatives, so they can arrange and fund the provision themselves.
16. Councils must consider all requests for a personal budget, but they do not have to agree, where they consider it would have an adverse impact on their ability to provide services. In such circumstances, a council must give a written explanation for its decision, and inform the person they have a right to request a formal review of the decision.

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Analysis

17. The Ombudsman’s role is to review the way councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not taken into account relevant information, or failed to properly explain a decision it has made. We call this ‘fault’ and, where we find it, we can identify any consequences of the fault and ask the council in question to address these.
18. But we do not make operational or policy decisions on councils’ behalf, and nor do we offer a right of appeal against their decisions. If a council has made a decision without fault then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We cannot uphold a complaint simply because someone disagrees with what a council has done.
19. What that means here is that it is not for us to decide, for example, whether the provision G is receiving is adequate for his needs, as this is a matter of professional judgement for the Council to decide.
20. There are two broad aspects to Mrs B’s complaint, which for clarity I will address separately.

Speech and language therapy

21. G’s EHC plan says he should receive 29 hours of direct and indirect speech and language therapy.
22. I will first note I find it unusual the EHC plan does not explain over what period these 29 hours are supposed to be delivered, which we would normally expect to see. However, Mrs B has told me it is supposed to be over a year, with the therapy being considered at each annual review and possibly renewed for another year; and so I will work on the basis this was the Council’s intent when it drafted the plan.
23. To this end, I asked the Council to provide a breakdown of the number of hours he has received, and in response it provided me a spreadsheet showing the hours from September 2022 to September 2023. By my calculation, these add to a total of 27.9 hours, with 3.9 hours indirect therapy, and the remainder direct.
24. I acknowledge this is just short of the 29 hours required by the EHC plan. However, I do not consider a discrepancy of slightly more than one hour – over a year – to be so significant to amount to fault. I am therefore satisfied there is no fault in this respect.
25. Mrs B also complains there has been a high turnover of speech and language therapists. In response to my enquiries, the Council told me:

“Due to the national recruitment issue and unavoidable staff sickness within the service, the commissioned provider has used locums to support staffing where necessary. This has resulted in five Speech and Language Therapists supporting [G] over the last year. To mitigate the impact of the this, the commissioned provider ensured a consistent Speech and Language Therapy assistant throughout who was able to support handovers between Therapists.”

26. I acknowledge the importance of consistency in provision, and I understand that repeatedly having to adjust to a new therapist is not helpful for G. This situation is clearly not ideal.
27. However, it is equally clear this is something outside the Council’s control. Under such circumstances, we may sometimes make a finding of service failure – which we define as a fault, but which has occurred because of circumstances beyond the relevant authority’s control. In this case though, I am conscious that G was still receiving his therapy hours, despite the high turnover in staff. Although this is not ideal, I do not consider it would be appropriate to find there has been a service failure, when the Council has still been able to discharge its duty here.
28. I also asked the Council to elaborate on its reason for refusing Mrs B’s request for a personal budget. It said:

“[The Council] have a commissioned block contract for the provision of therapy services for children with EHCPs across Essex. To disaggregate the spend for any Personal Budgets relating to the provision of therapy services would represent a double spend against the budget and represent an inefficient use of the public purse.”

29. Paragraph 9.106 of the SEND Code of Practice sets this out precisely as one of the reasons councils may refuse a request for a personal budget, and so I have no grounds to criticise the Council for this. However, paragraph 9.107 says councils must set out their decisions in writing, and explain to the requestor that they have the right to request a formal review.
30. The Council responded to Mrs B’s request as part of its overall complaint response. Although this meets the requirement for a decision in writing, at no point does this response explain Mrs B’s right to request a formal review. I therefore find fault on this point.
31. I cannot speculate what difference a review may have made here, but I still consider this has caused Mrs B an injustice because of the uncertainty this has created. To remedy this, I consider the Council should apologise for its error here, and allow Mrs B to request a review of its decision on the personal budget matter, if she wishes to do so.
32. Separately, the Council should issue guidance to relevant staff, to remind them a decision to refuse a personal budget request carries a formal right of review, and they must explain this when notifying a requestor of the Council’s decision.
33. I make recommendations to this effect.
34. I find fault causing injustice in this element of Mrs B’s complaint.

Occupational therapy

35. G’s EHC plan also says he should receive “daily sensory diet activities”. However, Mrs B says the Council’s therapy provider has told her this is not a service it offers.
36. I asked the Council to elaborate on its comments that it was for G’s school to lead on this. It told me:

“[Sensory diet activities] are delivered as part of the daily curriculum through the universal offer of a special school, who have a workforce trained to meet the needs of pupils with complex learning difficulties.

“At this time there has not been an identified need that requires [G] to receive individual direct input for sensory needs, over and above that of the universal curriculum delivery in the school. If at any time this was identified as a need, by school (as informed by the report outlined above) or parent then the need for an assessment can be highlighted and requested through the annual review process, and would be commissioned by Education. Should individual direct input be identified as a requirement following that assessment it would be commissioned by Education from its commissioned provider.  

“The LA review and monitor the progress of individual pupils through the annual review process, and have done for [G]. At no point, to date have we been made aware that his sensory needs were not being met through the universal offer, and trained workforce of the school.”

37. It appears, therefore, that there has been some misunderstanding between Mrs B and the Council on this point, with Mrs B believing the intent of the EHC plan was for a separate sensory diet provision to be implemented. I do consider this is something the Council should have explained better, if not in the plan itself, then at least in its response to Mrs B’s complaint; although again, this is not so significant as to amount to fault.
38. I understand Mrs B may disagree the school is providing an adequate sensory diet for G. However, I consider this to be a matter of professional judgement, and not something I am in a position to decide. The annual review process should allow Mrs B to air any concerns she has about this to the Council. If necessary, she also has a right of appeal to the SEND Tribunal, if she disagrees with the provision set out in G’s EHC plan when it is re-issued after a review.
39. I find no fault in this element of Mrs B’s complaint.

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Agreed action

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

• write a formal letter of apology to Mrs B, to acknowledge its failure to explain she had the right to request a formal review of its decision to refuse her personal budget request. 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 its apology;
• invite Mrs B to request a review of its decision now, if she wishes to make one; and
• circulate guidance to all relevant staff, to remind them a decision to refuse a personal budget request carries a formal right of review, and the statutory guidance requires them to inform a requestor of this right, when writing to inform them of the Council’s decision.

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

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Final decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman