Summary: Mrs X complained the Council failed to provide the speech and language therapy in her son, Y’s, Education Health and Care plan from June 2022. The Council was at fault. It should make a payment to remedy the injustice to Y caused by the missed provision. It should also pay Mrs X £500 for the avoidable time and trouble she was put to pursuing the matter and for failings in its complaints handling process.

The complaint

1. Mrs X complained the Council had failed to ensure her son, Y, received the speech and language support (SALT) set out in his Education, Health and Care (EHC) Plan since June 2022. Mrs X also complained the Council failed to keep her informed of the action it was taking to address this and failed to respond to her emails asking for updates.
2. Mrs X says this has impacted on the development of his communication and on his wellbeing. In addition, she has been put to avoidable stress, time and trouble pursuing the matter.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), 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).
6. 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

7. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
8. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

9. A child with special educational needs (SEN) 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 EHCP is set out in sections. We cannot direct changes to the sections about special educational needs and provision, or name a different school. Only the Tribunal can do this.
10. The Council is 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.
11. 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)

Direct payments

12. Parents and carers of a disabled child can ask for a direct payment (DP), which is a payment that allows them to arrange support for their child. Where a DP is to arrange support in section F of an EHC Plan, the details of the payment should be included in the plan.

Complaints handling

13. The Council’s complaints policy says it will acknowledge the complaint within three working days and provide a full reply within 20 working days. It also says if a complaint raises complex issues that could not be answered within 20 working days, it will keep the complainant informed of progress until it can fully respond.

What happened

14. Y has complex learning difficulties and medical conditions. He has an Education, Health and Care (EHC) Plan and attends a special school. The support in his EHC Plan includes speech and language therapy (SALT) for one hour every two weeks by a qualified therapist. The plan says the therapist will provide updates to Mrs X after each session and should either attend two parent consultation sessions and the annual review of Y’s plan, or provide a report in advance if they are not able to do so.
15. In June 2022 the private SALT provider said they would not continue to work with the school after the end of that term because the therapist providing the support was leaving. The Council told Mrs X that the contract had ended in mid-July. Mrs X said the therapist was unwell in July, which meant no SALT was provided from June 2022.
16. In response to our enquiries, the Council said it tried to find an alternative provider over the summer but was not able to do so. However, it said the private SALT provider had left a therapy plan with the school, which it said meant the school had a relevant plan for supporting Y until December 2022. Since there was no SALT provider involved at that point or since, there is no way to verify this.
17. Mrs X sent emails asking for updates on the action the Council was taking to identify an alternative provider on 27 September, 5 October, 20 October, 9 November and 5 December 2022. She said the Council failed to respond.
18. On 20 October 2022, Mrs X made a formal complaint. The Council responded at stage 1 of its complaints process on 20 January 2023. It apologised for the delay in responding. It said a personal budget had now been agreed and included in Y’s EHC Plan. This related to music therapy rather than SALT.
19. Mrs X remained unhappy. She responded that day and asked the Council to consider the complaint at stage 2 of its complaints process. She asked for a telephone call to discuss her complaint. The Council responded at stage 2 on 17 April 2023. In its letter, it:
• apologised for the delay in responding to her complaint;
• explained there is a national and local shortage of speech and language therapists;
• apologised for the frustrating delays in finding an alternative provider for Y, but could not say how much longer Y would have to wait;
• apologised for its poor communication and failure to provide updates and said it had reminded relevant staff of the need to keep families informed.
20. In May 2023, following a request from Mrs X, the Council arranged for a one-off consultation with the Kent and Medway Communication and Assistive Technology Team (KM CAT). This took the form of a meeting at Y’s school, involving key school staff, Mrs X and staff from KM CAT. The record of the consultation shows KM CAT made some recommendations for supporting Y in school. Mrs X said Y was not present at the consultation meeting and was not seen by KM CAT staff. She also said it did not result in a new speech and language therapy programme for Y.
21. In response to our enquiries, the Council said:
• there is a national and local shortage of key professionals, including speech and language therapists, which makes recruitment difficult;
• staff have regularly been reminded of the need to keep families updated, including at a SEND service training day in March 2023;
• a significant increase in EHC Plans and complaints had impacted on its ability to meet expectations around keeping families updated and responding to complaints in a timely manner. It recognised a need to improve and this was being addressed through an Accelerated Progress Plan;
• it was considering an expression of interest for the SALT contract, although Mrs X could, if she wished, request direct payments so she could arrange the support herself; and
• it offered to pay Mrs X and Y £500 each to remedy the injustice caused to them by the missed provision and the avoidable time and trouble Mrs X was put to pursuing this.

My findings

22. There is no dispute that Y has not received the SALT sessions set out in section F of his EHC plan since June 2022. The Council took appropriate steps to try to find an alternative SALT provider in summer 2022 but was not able to do so. This was service failure.
23. I have not seen evidence it has taken appropriate steps to identify an alternative provider since summer 2022, and this is fault.
24. At Mrs X’s request, the Council arranged a consultation with KM CAT in May 2023, but this did not extend to professionals assessing Y’s needs in order to give advice to the school on how best to support Y. The Council has therefore not been proactive in seeking advice to help Y’s school to support Y with his speech and language needs and development, which is further fault.
25. The Council failed to respond to Mrs X’s requests for an update on what was happening between September and December 2022, which was further fault.
26. Mrs X complained in October 2022. The Council’s complaints policy says it will respond within 20 working days. It did not respond until January 2023. This delay was fault. When it did respond, it failed to address the complaint about missed SALT provision. This was further fault.
27. There was a further delay in responding to the complaint at stage 2, for which the Council apologised. At stage 2, it apologised for the delay in arranging alternative SALT provision, and for its poor communication and failure to keep Mrs X updated.
28. In response to my enquiries, the Council offered to pay Y £500 to remedy the missed provision. Mrs X has explained how the lack of SALT support since June 2022 has significantly affected Y’s ability to communicate his needs and wants, and this has detrimentally affected his mental health. I do not consider a payment of £500 is sufficient to remedy the injustice caused to Y.

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Agreed action

29. Within one month of the date of my final decision, the Council will:
1. pay Mrs X £500 for the time and trouble she was put to pursuing the missed SALT provision with the Council, and for the frustration caused by failings in its complaints handling;
2. pay Mrs X, for the benefit of Y, £3,750, which was calculated on the basis of £750 per term from September 2022 to Easter 2024, which is in line with our guidance on remedies. It should continue to pay £750 per term (£2,250 per academic year) until SALT support is in place; and
3. provide us with evidence of the steps it has taken and is taking to identify a SALT provider for Y.
30. The Council will provide us with evidence it has complied with the above actions.
31. The Council has agreed our recommendations to improve its complaints handling on another case and has already reminded relevant staff about the need to keep families updated, so no further recommendations are needed.

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Final decision

32. I have completed my investigation. I found fault leading to personal injustice. I have recommended action to remedy the injustice. I am satisfied the Council is already taking steps to prevent recurrence of the faults identified and no further recommendations are needed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman