Summary: The complainant (Mrs X) said the Council failed to ensure her son (Y) received the speech and language therapy provision identified in his Education Health and Care Plan. She also complained about the lack of occupational therapy support for Y and the Council’s poor communication. The Council has accepted its fault and offered some remedies. We cannot look at the occupational therapy issues as Mrs X appealed the content of Y’s Education Health and Care Plan in June 2022. The Council has agreed to make a higher payment to Mrs X to recognise Y's and Mrs X's injustice caused by the lack of the speech and language therapy provision for a whole year.

The complaint

1. Mrs X says the Council failed to ensure Y’s speech and language therapy (SLT) provision was delivered to him since September 2022. She also complains about the lack of the occupational therapy (OT) support despite the identified need for a referral. Mrs X complains about the inadequate communication from the Council.
2. Mrs X says the Council treated Y differently because of his race, which amounts to a discrimination.
3. Mrs X says the Council’s failings had a negative impact on Y’s education and development. She says Y’s speech visibly deteriorated and he regressed with his independence and self-confidence due to the unaddressed physical and sensory issues. Mrs X the Council’s failings had a negative impact on the whole family as they struggled to support Y.

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The Ombudsman’s role and powers

General

4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Special Educational Needs and Disabilities Tribunal

8. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
10. 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)
11. 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.
12. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal, such as where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal.

Equality Act

13. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

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What I have and have not investigated

14. As explained in paragraph five of this decision we normally investigate events which happened within twelve months before the complainant came to us and not before. Mrs X came to us at the beginning of November 2023. I consider there are good reasons to extend our investigation to the beginning of September 2022 as:
• Mrs X only found out in May 2023 that the Council had not been ensuring delivery of SLT to Y since September 2022;
• The Council completed its complaint process at the end of September 2023, which in turn delayed Mrs X coming to us with her complaint. She asked for the Council to consider her complaint at stage two at the end of July 2023. Mrs X should not bear negative consequences of the delays with the Council’s complaint handling;
15. I have not investigated whether the Council properly considered Mrs X’s request for an OT assessment until November 2022. Mrs X appealed Sections B, F and I of Y’s EHC Plan of April 2022 and Y’s independence issues were part of her appeal. We cannot consider anything which was the subject of appeal to the SEND Tribunal and anything that was closely linked to it.
16. I have investigated the impact of the Council’s failure to deliver SLT provision to Y from September 2022 as Mrs X did not appeal Y’s SLT provision. The package of the SLT support included in Y’s post Tribunal EHC Plan issued in August 2023 was the same as in Y’s EHC Plan of April 2022. There was no dispute about this part of Y’s support.

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How I considered this complaint

17. I spoke with Mrs X and considered the information she provided.
18. I considered the information provided by the Council.
19. Mrs X and the Council 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

Legal and administrative background

Delivery of special educational provision

20. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
21. 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.

Communication

22. Local authorities should support and encourage the involvement of children, young people and parents or carers by:

• Providing them with access to the relevant information in accessible formats
• Giving them time to prepare for discussions and meetings, and
• Dedicating time in discussions and meetings to hear their views.

(Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.24)

23. Councils must have regard to the need to support a child with special educational needs or disabilities and their parent to promote the development of the child and to help them achieve the best possible educational and other outcomes. (Children and Families Act 2014 section 19 (d))

What happened

24. In April 2022 the Council issued an amended final EHC Plan for Y. In Section F the Council included 20 hours of provision for Y’s SLT to be delivered by a qualified SLT supported by a Therapy Assistant when appropriate. The SLT provision consisted of:
• Direct therapy;
• Contributing to school-led target setting;
• Liaison with other professionals, school staff and parents;
• Updating clinical records;
• Providing programmes and strategies;
• Participation in Y’s annual reviews.
25. At the end of June 2022 Mrs X appealed Section B, F and I of Y’s EHC Plan. She was not happy with Y’s placement in the mainstream primary school (School 1). She also queried the lack of provision to develop Y’s independence skills.
26. At the end of November the SEND Tribunal issued a Consent Order. The Council and Y’s parents agreed some amendments to Sections B and F. The Council also agreed to name in Section I of Y’s EHC Plan specialist provision attached to a different mainstream school (School 2).
27. In February 2023 Y started attending School 2. In March School 2 asked for the most recent SLT and OT reports for Y.
28. After contacting the Council, in May Mrs X found out that Y had last been seen by his SLT in July 2022. Mrs X also learned the Council had failed to refer Y to the OT team, despite her repeated requests.
29. In the second week of July Mrs X complained about the non-delivery of Y’s special educational provision. She said he had not received any SLT for the last year. She also complained about the lack of any OT support for him. Mrs X considered the Council’s treatment of Y was different because of his race.
30. Two weeks later the Council responded to Mrs X’s complaint. The Council explained that due to an administrative error Y’s SLT support had stopped. There was another child with the same initials as Y for whom the SLT support should have been stopped instead. The Council said it would be working with its SLT provider to ensure such errors do not happen in the future. The SLT provider would start delivering Y’s special educational provision from the beginning of the new academic year, offering some catch up sessions in the summer. The Council also apologised for the lack of OT and confirmed it had already secured some OT involvement for Y.
31. Mrs X was not satisfied with the way the Council addressed her concerns and at the end of July asked the Council to consider them at stage two. At the beginning of August she provided some further information for her complaint.
32. At the end of August 2023 the Council issued a final amended EHC Plan for Y. The SLT provision was the same as in the previous EHC Plan issued in April 2022.
33. The Council responded to Mrs X’s complaint at stage two at the end of September. It confirmed its previous position, apologising for the missed SLT provision in 2022/2023 due to an administrative error. It offered Mrs X some remedies:
• Payment of £876.92 for the loss of SLT provision for a whole school year;
• Payment of £200 for the distress and frustration caused by poor communication and delays in progressing an OT referral;
• Payment of £250 for time and trouble;
34. Mrs X was not satisfied with the remedies offered by the Council and complained to us at the beginning of November 2023.

Analysis

35. As explained in paragraph 15 of this decision we cannot look at any actions of the Council about the OT provision for Y.
36. The Council accepted its failure to deliver Y’s SLT provision and to adequately communicate with Y’s parents. I consider an apology and the payment offered for the failings with communication as sufficient to remedy the injustice caused.
37. When deciding on the injustice caused by the Council’s failure to ensure that Y received his SLT provision in the school year 2022/2023 I considered:
• The length of time when Y had no SLT support;
• Y’s communication and interaction needs as specified in his EHC Plan of April 2022;
• The impact of the lack of SLT provision on Y’s communication reported by Mrs X;
• Information on Y’s difficulties in communicating and understanding instructions included in his amended EHC Plan of August 2023;
• Improvement of Y’s speech and communication reported by Mrs X since Y started getting the SLT support from September 2023;
• Y was receiving education at school throughout the year.
38. Considering the above, the injustice caused to Y and his family by the lack of the SLT provision was significant. Referring to our revised Guidance on remedies I do not think the payment offered by the Council reflects the injustice caused. I will recommend the payment of £1,500 based on the calculation of £500 per term.
39. As explained in paragraph 13 only courts can decide whether the Council’s actions amounted to racial discrimination. Through our casework we are aware of the councils’ difficulties in meeting their statutory duties for children with special educational needs, whatever their individual circumstances and characteristics. I have seen no evidence that when dealing with Y the Council failed to have regard to its duties under the Equality Act 2010.

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Agreed action

40. In addition to the remedies offered for the distress and time and trouble, to remedy the injustice caused by the lack of the SLT provision for Y for a year, we recommend the Council within four weeks of the final decision pay £623.08 to Mrs X. This is in recognition that the Council has already paid £876.92 for the missed SLT. The Council should provide us with the evidence it has made an additional payment.

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Final decision

41. I found fault with the Council in the part of Mrs X’s complaint about the lack of Speech and Language Therapy provision for Y for a year. This fault has already been accepted by the Council. The Council’s fault caused injustice to Y and Mrs X. I cannot look at any Occupational Therapy issues as Mrs X could have included them in her appeal to the SEND Tribunal. The Council has accepted my recommendations for an additional payment, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman