Summary: The Council was at fault for failing to deliver Mr B’s son’s speech and language therapy for around two months. It was also at fault for being slow to investigate whether other aspects of his special educational needs support were being delivered. It has already offered Mr B suitable remedies for his – and his son’s – injustice. It will also take steps to improve its service.

The complaint

1. The complainant, whom I refer to as Mr B, complains that the Council failed to deliver his son’s special educational needs support. I refer to his son as C.
2. Mr B also makes various complaints about C’s school, and makes allegations about the Council, including of misconduct, lying, corruption and abuse (of Mr B).
3. Mr B says these matters caused distress to himself and C.

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The Ombudsman’s role and powers

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 complaints about what happens in schools, unless a complaint relates to how a school has delivered a child’s special educational needs support (when the school is acting on behalf of a council). (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. We cannot investigate a council’s conduct during an appeal to the SEND Tribunal. This includes “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…”. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
8. If we are satisfied with a council’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)
9. 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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What I have and have not investigated

10. I have not investigated the various complaints Mr B made about C’s school, because we do not have the power to investigate most complaints about schools.
11. The exception is where Mr B has complained about how the school delivered C’s special educational needs support. I have investigated this complaint.
12. I cannot investigate any complaints Mr B has made about the Council’s conduct in relation to his appeal to the SEND Tribunal. I have only investigated the Council’s delivery of C’s special educational needs support outside the appeal process.
13. I have not investigated the complaints Mr B has made about lying or corruption, for example (among other things).
• If the very serious allegations Mr B makes were true, this would almost certainly amount to maladministration. But the threshold of evidence needed to justify such considerable claims would be very high.
• Having considered the documents on Mr B’s complaint, I have not seen any evidence which would come even close to meeting that threshold (or, in fact, any evidence to support his allegations at all).
• This means further investigation of these matters is not justified.

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How I considered this complaint

14. I considered:
• Information from Mr B and the Council.
• Relevant law.
• The Ombudsman’s guidance on remedies.
15. Mr B 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

The Council’s responsibilities

16. 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.
17. The EHC plan is set out in sections which include section F (the special educational provision needed by the child or the young person).
18. Councils have a duty to make sure children receive the special educational provision set out in section F of their EHC plans. (Children and Families Act 2014, section 42)
19. The duty to arrange this 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 liable. (R v London Borough of Harrow ex parte M [1997] ELR 62); (R v North Tyneside Borough Council [2010] EWCA Civ 135)
20. The Ombudsman’s guidance on remedies says we do not punish councils in the way a court might. This means we do not award ‘damages’ or ‘compensation’.
21. Instead, we can ask a council to make a payment to ‘symbolise and acknowledge’ the distress someone suffered because of what it did wrong.
22. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss.
23. Financial remedies for other missed provision, such as speech and language therapy, are likely to be lower than those for lost educational provision.

What happened

24. In early 2023, C was in his final year of primary school. He had an EHC plan, which, in mid-February, the Council updated. The new plan said the Council would provide, among other things:

1. Speech and language therapy.
2. A social skills group, run by staff trained by a speech and language therapist.
3. Additional vocabulary support, “e.g. using a Precision Teaching approach”.
4. A key person at secondary school who, during C’s first term, would “check in” with him for five minutes at the beginning or end of the day.
5. Regular mentoring sessions with a trained member of staff.
6. A “sensory diet” to be devised, and closely monitored, by an occupational therapist.
7. Support to learn touch-typing.

25. C had already been receiving speech and language therapy at school. However, in February, this stopped because the provider withdrew.
26. In early March, a private educational psychologist (commissioned by Mr B) visited C at school. And, the day after, he told Mr B that C’s school was not delivering the seven examples of support I have summarised above.
27. At the end of March, Mr B complained to the Council about C’s school’s delivery of his support. He referred to “seven blatant breaches” of C’s EHC plan but did not explain what he meant.
28. In mid-April, the NHS told the Council that it had a speech and language therapist available for C. The Council asked Mr B’s solicitor if Mr B consented to the new therapist. At that point, this was how correspondence was being exchanged in relation to Mr B’s Tribunal appeal.
29. The Council did not receive a response.
30. Shortly after, the Council answered Mr B’s complaint. It said it had consulted 17 different providers of speech and language therapy, without success. It appears that, at the time of writing the complaint response, the respondent did not know about the availability of the new NHS therapist.
31. The Council also said a manager would write to C’s school to find out how much of his special educational needs support he was receiving. It asked Mr B to provide more details about the ‘seven breaches’ to which he referred in his complaint.
32. In early May, the Council asked Mr B’s solicitor, again, if Mr B consented to the new therapist. The solicitor responded, but only addressed different matters relating to the Tribunal appeal. There was no response about the ongoing delivery of speech and language therapy.
33. Later in May, Mr B made another complaint to the Council. He said C was still not getting the right special educational needs support.
34. The Council, again, asked Mr B’s solicitor if Mr B consented to the new therapist. Again, it received no response.
35. In late June, the Council answered Mr B’s complaint. It said:
• The new therapist was available to support C.
• Mr B had still not provided information about the ‘seven breaches’ to C’s EHC plan, despite its request that he did so. This meant the school had been unable to comment on the alleged breaches.
• Nonetheless, the Council’s ‘inclusion advisor’ had now been asked to visit the school the review the delivery of C’s special educational needs support.
• ‘Precision teaching’ was a suggested approach in C’s EHC plan, not an outcome. His school used a different approach which shared precision teaching’s fundamental principles.
36. Because it accepted that C had missed speech and language therapy, the Council apologised, and offered Mr B symbolic payments of £1,000 (to recognise C’s loss of support) and £100 (to recognise Mr B’s time and trouble).
37. C finished primary school in mid-July and started his new secondary school in September.

My findings

38. There was no speech and language therapy available to C between early February and mid-April 2023, for which the Council was at fault (and which it has already accepted).
39. However, the Council identified a new therapist in mid-April. The therapist was available to C from that point. Any later delay was caused by a lack of consent from Mr B. This was not the Council’s fault.
40. With regard to the rest of the special educational needs support which Mr B believes C missed:
• The Council asked Mr B to explain which support he was talking about, but he did not do so.
• The Council’s view was that C’s additional vocabulary support was being delivered properly. This was professional opinion which it is not my role to question.
• The five-minute ‘check in’ was for secondary school, not primary school, so was not relevant at that point.
41. This means questions only remain about C’s school’s delivery of his mentoring sessions, sensory diet and touch-typing support.
42. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational needs support for every pupil with an EHC plan. But they should still be able to demonstrate effective oversight. We expect them to have systems in place to quickly investigate when complaints or concerns are raised that support is not being delivered.
43. The Council did, eventually, send an officer to C’s school to assess whether it was delivering all his support. But it only did this in late June 2023, despite knowing about the potential missing support at the end of March.
44. Even taking into account the lack of information from Mr B, the Council could have done more, quicker, to establish whether C was getting all the support he needed. It was at fault for not doing so.
45. The Council has already offered Mr B a £1,000 symbolic payment to recognise C’s missing speech and language therapy. Even though C may have also been missing out on some other support, this offer is still within a reasonable range, as suggested in our remedies guidance. I have no grounds to recommend that the payment be increased.
46. The same is true of the Council’s offer of £100 to recognise Mr B’s time and trouble.
47. However, the Council said, in one of its complaint responses, that it is “working with our Health colleagues to find suitable solutions [to the shortage of therapy providers], both in terms of commissioning and recruitment”. It should explain to us exactly what it means by this.

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Agreed actions

48. Within a month, the Council has agreed to make the symbolic payments to Mr B which it agreed before the Ombudsman’s involvement. These total £1,100 and recognise the injustice to both Mr B and C.
49. Within two months, the Council has agreed to send us an action plan which sets out how it intends to overcome its difficulties in commissioning and recruiting speech and language therapists (as seen in C’s case).
50. The Council will provide us with evidence it has done these things.

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Final decision

51. The Council was at fault.

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Investigator's decision on behalf of the Ombudsman