Summary: The Council failed to take sufficient action to secure the speech and language therapy in Ms X’s daughter’s Education, Health and Care Plan (EHC Plan). This caused Ms X frustration and caused her daughter to miss out on provision she was entitled to receive. The Council has agreed to apologise, pay Ms X £850, and carry out service improvements. It has also agreed to pay a financial remedy for ongoing missed provision.

The complaint

1. Ms X complains the Council failed to secure the speech and language therapy set out in her daughter, Z’s, February 2023 EHC Plan.
2. Ms X said this caused her daughter to miss provision that was important for her social and communicative development and caused Ms X distress and frustration.

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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 an injustice, 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. 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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How I considered this complaint

6. I considered the information provided by Ms X and the Council.
7. I considered the relevant law and guidance as set out below.
8. I considered our Guidance on Remedies.
9. I considered all comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

10. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out their needs and what arrangements should be made to meet them.
11. 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. 
12. Councils are responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
14. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. However we consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. For instance, the council should have systems in place to quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

What happened

15. Ms X’s daughter, Z, has a learning difficulty and has an EHC Plan.
16. On 1 February 2023 the Council issued a final EHC Plan for Z which said she should receive two sessions with a speech and language therapist each half-term. This was written in Section F of the Plan.
17. On 2 February, Z received one speech and language session. Z did not receive any more speech and language therapy until 24 November 2023.
18. On 15 March Ms X told the Council Z had so far not received all the speech and language therapy in her Plan.
19. The Council responded to say these sessions were the responsibility of the local NHS service to arrange and offered to send her complaint directly to that service.
20. The Council chased the NHS service regarding the speech and language provision during this time.
21. Ms X declined to have her complaint forwarded to the NHS service. She said the speech and language provision was listed in Section F of Z’s Plan, so the Council was responsible for delivering it.
22. The Council responded to say it had followed up with the NHS service once Ms X told it the sessions weren’t taking place. The service said the sessions had not been delivered due to lack of capacity which it was currently taking steps to improve. The Council apologised for the frustration caused and said if Ms X was unhappy with the response she could complain to the Ombudsman.
23. Ms X complained to the Ombudsman on 30 June 2023. By this time, the Council had again chased the NHS service but it still could not put the provision in place. Z continued not to receive any of the speech and language therapy in her EHC Plan up until 24 November 2023, when she received one session.

My findings

24. Between 1 February and 24 November 2023, Z should have received ten sessions of speech and language therapy. Instead Z received two sessions.
25. When, on 15 March 2023, Ms X made the Council aware the provision was not taking place as required by her EHC Plan, the Council chased the NHS service it had made the referral to. It wrongly said the provision was ultimately the NHS’s responsibility. It did not consider securing the provision for Z any other way, such as by consulting speech and language therapists privately.
26. The Council had a non-delegable duty to ensure Z received this therapy as it was listed in Section F of her EHC Plan. The Council did not take sufficient action to secure the provision in Z’s EHC Plan. This was fault. This fault caused Z to miss out on provision which she required to develop her communication and social skills. The fault also caused Ms X a period of frustration and distress.
27. I have calculated the remedy for missed provision from 15 March – when the Council first became aware the provision was not in place - until 24 November, when my investigation ends.
28. I have not investigated events after 24 November, as this falls outside the period that can be covered by the evidence from this investigation. However as Z’s speech and language therapy is still not being delivered in accordance with the EHC plan, I have recommended a remedy for ongoing injustice. Should the Council continue to fail to secure provision beyond that point we will consider what further steps to take.

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Agreed action

29. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X for the injustice caused by the faults in this case;
2. Pay Ms X £700, which can be used for Z’s benefit, to reflect the impact of loss of speech and language provision between February and November 2023;
3. Pay Ms X £100 for each session of speech and language therapy that Z missed out on, and continues to miss out on, from 24 November 2023 up to three months after the date of the final decision on this case;
4. Pay Ms X £150 to reflect the frustration and distress she was caused by the Council not taking steps to address the missed provision much earlier; and
5. Demonstrate how the Council intends to secure the speech and language provision in Z’s EHC Plan, through private means if necessary, and agree to carry out monthly checks with the provider to ensure the provision remains in place for several months after it is secured.
30. Within three months of the date of the final decision, the Council has agreed to:
1. Review its commissioning arrangements with regards to speech and language therapy to ensure it can secure this type of therapy when it is set out in its children’s and young people’s EHC Plans; and
2. Remind its SEND staff that the Council’s duty to secure the provision in Section F is non-delegable. The Ombudsman appreciates that it is not always possible to secure provision from industries where there is a national shortage of professionals, such as in speech and language therapy. However we do expect to see evidence that the Council has tried to secure the provision in the Plan and not delegated this duty to another service.
31. The Council has agreed to provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay a financial remedy and carry out service improvements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman