Summary: Mr X complained the Council failed to provide Speech and Language Therapy (SALT) provision to his son, C, when he began attending college. I find the Council at fault. It failed to provide the SALT as detailed in the Education Health and Care plan. Further, it failed to take reasonable steps to source provision when its own SALT provider had no availability. The Council will make payment to recognise the loss of provision and take action to prevent reoccurrence.

The complaint

1. Mr X complained the Council failed to provide the necessary Speech and Language Therapy (SALT) provision since his son, C, began at college.
2. He says C could not attend school for a full day as a result and eventually the placement ended due to the lack of provision.

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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. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal… such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
5. 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)
6. 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

7. I have considered:
• The information provided by Mr X and discussed the complaint with him;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
8. Mr X 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

Law and guidance

9. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections.
10. The council has a duty to secure the specified special educational 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)
11. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational 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 review process; and
• investigate complaints or concerns that provision is not in place at any time.

12. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

13. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

Key events

14. In January 2022, while C was still at school, the SALT report noted that he was experiencing increasing difficulty with the class environment and was demonstrating increased periods of dysregulation.
15. In December 2022 the Council arranged an Occupational therapist to carry out an assessment. The report noted that C’s needs were impacting other learners at the college. It also stated the college did not have the space and resources to meet C’s needs which was preventing him from settling at the college. It noted his vocalisation noise levels had increased and his sensory behaviours when dysregulated had become more extreme.
16. In January 2023 the tribunal heard Mr X’s appeal of C’s EHC plan. The appeal discussed issues around the number of hours C attended college, the reasons for this and his SALT and occupational therapy provision. The tribunal noted the college only provided around 16 hours per week to all students and C was attending for 12 hours a week. At the appeal the Council agreed not to reduce C’s SALT provision. This meant he was entitled to two hours SALT provision each week. It agreed the provision should be provided in addition to the hours he was currently at college for.
17. Following the hearing the Council issued a new EHC plan for C. This plan stated he was entitled to two hours of SALT per week to be run as two sessions.
18. In early March the Council sent the college details of a SALT provider so it could arrange a referral. The college contacted the SALT provider asking for provision during the three hours a day C attended college. The college updated the Council in late March to explain that one provider had no in-person availability and the other provider had not responded to emails or telephone calls.
19. Mr X raised a complaint about the lack of SALT provision and other issues in May 2023.
20. In mid-May 2023 the college emailed Mr X with an update on C’s behaviour. It noted that instances of C hitting himself had increased since joining the college and that his wellbeing score had dropped. It estimated that C hit himself in excess of 100 times a day now. The college express concerns of the impact this could have on C’s health. It stated that in its view C was not coping with college.
21. The college contacted a third SALT provider in mid-May to enquire about SALT availability. It says they responded to say they had no availability during that academic year at the wanted time.
22. In late May 2023 the Council held a student meeting. At the meeting it admitted that it was not providing SALT to C and it had a duty to do so. It stated it had contacted three providers and been able to place C on a waiting list for one of these.
23. The Council responded to Mr X’s complaint in late May. It apologised that it had been unable to find a SALT provider for C.

Findings

24. C was entitled to two hours of SALT provision each week under his EHC plan. The Council has accepted that C did not receive this provision as it could not find an available professional.
25. I have considered whether the Council took reasonable steps to try and secure provision during this time. The Council asked the college to arrange the provision on its behalf. The college contacted two organisations in March, two months after the tribunal decision. Despite not being able to get any provision neither the Council nor the college took any further action to try and find another organisation that would provide SALT provision until Mr X raised a complaint. Following Mr X’s complaint, the college only contacted one other organisation.
26. The Council has not taken reasonable steps to find a suitable SALT provider and therefore its failure to provide the provision outlined in C’s EHC plan is fault.
27. As a result of the Council’s actions C has not received the support he was entitled to. This loss of provision warrants recognition. I appreciate that Mr X feels that this lack of support has led to the failure of C’s college placement. I cannot say on balance that C’s placement failed because of the lack of SALT provision.

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Agreed action

28. Within one month of the final decision the Council will:
• Pay Mr X, for the benefit of C, £900 for the loss of SALT provision.
• Review the commissioning arrangements around the provision of SALT once an EHC plan is finalised to ensure this is provided promptly when internal providers are not available.
29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. I have completed my investigation. I have found fault leading to injustice. The Council will take action to remedy the injustice and prevent reoccurrence.

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Investigator's decision on behalf of the Ombudsman