Summary: Miss X complained the Council failed to arrange the speech and language therapy set out in her child, Z’s, Education, Health and Care Plan. The Council was at fault. This caused Miss X avoidable frustration and meant Z missed out on provision they needed. To remedy Miss X and Z’s injustice, the Council should apologise and pay Miss X a total of £1650. The Council should also remind its complaints staff that they should consider whether to offer a complainant a remedy when they uphold their complaint.

The complaint

1. Miss X complained the Council failed to arrange the full amount of speech and language therapy in her child, Z’s, Education, Health and Care Plan. Miss X said this caused her significant stress and meant Z’s speech and language development was affected.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

5. I have considered:
• all the information Miss X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

7. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section F sets out the special educational provision the child needs.
8. 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)  
9. In 2018 the Ombudsman issued guidance titled the “Principles of good administrative practice”. It notes councils should be prepared to put things right when they have gone wrong. This includes having an effective complaints procedure which offers a fair and proportionate remedy when a complaint is upheld.

What happened

10. Miss X’s child, Z, is a young child with developmental difficulties and particular challenges with speech and language. In August 2023, the Council issued an EHC Plan for Z which noted they would have Education Otherwise That At School (EOTAS). This is a package of education delivered in settings outside of school. The package varies depending on the child and their needs.
11. Section F of Z’s EHC Plan noted:
• Z needed three half an hour sessions of Speech and Language Therapy (SALT) per week. Two of the sessions would be delivered to Z alone and one was in a group;
• Z should have daily practice of their SALT targets, delivered by a member of staff like a tutor and guided by a SALT therapist; and
• the SALT therapist should have up to 45 minutes per term to work with Z’s parents to advise them on strategies they could use at home to improve Z’s speech, language and communication skills.
12. The day before the Council issued Z’s August 2023 EHC Plan, it contacted Miss X’s preferred SALT therapist (Provider A) for a quote to deliver the provision in Z’s Plan.
13. In late September 2023, Miss X told the Council she had not heard from Provider A and would look for other therapists in the area. Soon after, Miss X agreed for the Council’s usual SALT provider (Provider B) to deliver Z’s provision.
14. Provider B said it would not be able to deliver the group SALT sessions in Z’s EHC Plan because Z received their SALT at home. The Council accepted this.
15. Z had their first session in late November 2023. At the session, Miss X heard Provider B only had one other session planned before Christmas. She complained to the Council.
16. The Council responded in late December. It said there had been a miscommunication with Provider B, who thought it needed to deliver two sessions total in the autumn term, not two per week.
17. Z started attending a school in January 2024. The Council has commissioned Provider B to deliver Z’s SALT while they are in school.

Findings

18. The Council had a duty to secure all the SALT provision in Z’s EHC Plan from the date it issued the Plan in August 2023. This included the weekly group sessions. The Council knew Z’s provision would be delivered through an EOTAS package when it finalised the Plan. If group sessions were not possible in that setting, the Council should not have included them in Z’s Plan.
19. Initially there was delay in arranging the provision because Provider A did not respond to the Council’s contact. Later a miscommunication between Provider B and the Council meant Provider B only thought it needed to deliver two sessions total. Regardless of the reasons, the Council failed to meet its duty, which was fault.
20. The fault caused Miss X avoidable frustration. A full term is thirteen weeks long so Z should have had 39 sessions of SALT. Z missed out on 37 of those sessions. In addition, Miss X did not have the termly session with the SALT to discuss strategies for her to use with Z at home and staff involved with Z did not have SALT input to ensure they could deliver the daily SALT practice Z needed. This had a negative impact on Z.
21. The Council was also at fault for a poor complaint response. Its December 2023 response accepted the Council had failed to deliver the SALT provision in Z’s EHC Plan but despite this, it did not offer any remedy for the injustice that failure caused. This was not in line with the Ombudsman’s Principles of Good Administrative Practice. The fault caused Miss X further frustration.

Agreed action

22. Within one month of the date of my final decision, the Council will:
1. Apologise to Miss X for the frustration she felt because of the Council’s failure to secure the SALT provision in Z’s EHC Plan and poor complaints response. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
2. Pay Miss X £150 in recognition of her frustration.
3. Pay Miss X £1500 in recognition of the impact of the lost provision on Z.
4. Remind complaints staff they should consider whether to make a remedy offer to a complainant when they uphold a complaint.
23. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

24. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman