Summary: Ms X complained the Council did not fully deliver provision set out in her son’s Education, Health and Care Plan. We found fault because her son did not receive all of the provision linked to his plan in the 12 months after it was first issued. This caused Ms X avoidable distress and frustration. It also meant her son did not access the services he should have done. To remedy the injustice caused, the Council has agreed to apologise to Ms X, make a payment to her, organise sessions to catch up on what her son missed and issue reminders to relevant staff.

The complaint

1. Ms X complains the Council has failed to fully deliver specialist speech and language therapy provision set out in her son, Y’s, Education, Health and Care Plan (EHC Plan), since spring 2023.
2. She says this has caused her distress and frustration and that Y has missed out on the provision he was due.

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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. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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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What I have and have not investigated

7. My investigation begins when Y’s EHC Plan was issued in spring 2023.
8. My investigation ends in May 2024 when Ms X brought her complaint to us.

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How I considered this complaint

9. I have considered all the information Ms X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
10. Ms X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

11. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
12. The EHC Plan is set out in sections which include Section F, which is the special educational provision needed by the child or the young person. 
13. 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)  
14. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in Section F for every pupil with an EHC Plan.
15. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

What happened

16. I have set out below a summary of the key events. This is not meant to show everything that happened.
17. Ms X has a young son, Y, who attends primary school.
18. After going through the needs assessment process, the Council issued Y’s first EHC Plan early in spring 2023.
19. Amongst other things, provision in Section F of Y’s plan stated that:
• he will have three direct speech and language therapy (SALT) contacts (from a speech and language therapist) across the year, each lasting 30 minutes and which would be delivered individually or in small groups;
• the direct sessions will involve discussion or feedback with relevant teaching staff and with Y present;
• sessions include modelling of specific strategies and activities with the relevant adult working with Y; and
• activities and strategies modelled will then be carried out daily by school staff.
20. Section F also said:
• there should be five hours of indirect SALT contacts across the year (from a speech and language therapist);
• the five hours should include two hours to plan, set up and review the programme, and update targets according to progress;
• one hour to deliver specific training to relevant staff or parents;
• one and a half hours to write the annual review report; and
• 15 minutes to be used for record keeping on each of the direct contact sessions.
21. At the end of February 2024, Ms X complained to the Council. She said no SALT sessions had yet been delivered to her son. She said she had been told by the SALT service that therapy would be delivered in school in the summer term. Ms X said this would be from early-spring 2024 onwards which meant Y would not have received any of his sessions in the 12 months since his EHC Plan was first issued in spring 2023. Ms X said that if the provision could not be delivered then the Council should allocate the money so a private therapist could deliver the provision.
22. In mid-March 2024, the Council sent its stage one complaint response to Ms X. It said that over the past academic year, Y had received therapy provision in the summer holidays of 2023 and early in 2024. It also said Y was due to be seen in the summer term and the therapist would arrange visits with the school.
23. On the same day, Ms X escalated her complaint to stage two of the Council’s process. She said the two contacts listed were clinic appointments and did not deliver provision set out in Y’s EHC Plan. Ms X also complained that Y’s EHC Plan annual review was booked for 12 months after his plan had been issued but that there would be nothing to review as school staff did not know how to work on Y’s targets. Ms Y complained she received vague replies which did not address her concerns.
24. At the end of March 2024, Y’s school emailed Ms X with a letter from the speech and language therapy service. The letter said the therapist would visit school in the summer term and deliver two direct sessions. Sessions would review communication skills, model strategies to teaching staff and update communication targets.
25. Ms X contacted the therapist directly and was told Y would be seen for two sessions in the summer term of 2024. The therapist said she would complete a report after the visits but this would not be ready until June so it may be kept for the next year’s annual review.
26. The Council sent its stage two complaint response in mid-April 2024. It said therapy provision was both direct and indirect and could be delivered in a variety of ways. It also said the school was able to contact therapy services on the telephone. The response repeated that Y would be seen in the summer term and the therapist would arrange visits with the school. The response signposted Ms X to the Ombudsman.

Analysis

EHC Plan Section F provision

27. The Council’s complaint responses to Ms X and its responses to my enquiries contradict themselves. They also contradict the evidence provided by Ms X about when and how often she was told by the SALT service that therapy would be delivered to Y in school.
28. I am satisfied that clinic appointments Y attended during the school summer holidays of 2023 and another appointment early in 2024 do not contribute to either the direct or indirect school-based provision. This was supposed to be delivered in the 12 months following his EHC Plan being finalised in spring 2023.
29. The Council’s complaint responses to Ms X did not list any in-school sessions of direct or indirect therapy contact and said only that Y would be seen in the summer term of 2024.
30. The Council’s responses to me then listed six sessions of direct therapy related to Y’s EHC Plan. It said all of these had been delivered in Y’s school setting.
31. Of the direct sessions listed, one session was dated before the EHC Plan was issued and before Y started at the school. One session was in the school summer holidays during of 2023. One session was in spring 2024. Two sessions were in the summer term of 2024 (and matched the dates given in emails directly from the therapist to Ms X) and one in October 2024. The clinic appointment from early 2024 was not listed.
32. Of the indirect sessions listed in the response to me, one was in September 2023, and one in each of May, June and October 2024.
33. Ms X has provided evidence of her emails to various people at the SALT service commissioned by the Council to deliver SALT to children who need it. This evidence clearly states that sessions were delivered to children at Y’s school in the summer term of 2023 before he started there and that this approach would be repeated in the summer term of 2024. It said it was rotating support so that that all children in the Council’s area would receive fair provision. Evidence from Ms X also indicates the therapist had not met Y prior to the planned sessions in May 2024.
34. Viewing the available relevant evidence, I am satisfied that on the balance of probabilities, Y did not receive any direct, school-based SALT in the 12 months after his EHC Plan was issued in Spring 2023.
35. I am also satisfied that on the balance of probabilities, the full five hours of indirect therapy indicated did not take place during the 12 months after the EHC Plan was issued. There is no evidence to suggest a therapist met with school staff during this time. Evidence shows the report on Y’s progress would be written in June 2024, after the two direct in school sessions had been delivered in May, after his annual review was scheduled and not within the 12 months after the EHC Plan was issued.
36. In response to my enquiries, the Council was not aware of the SALT service’s recurring plan to deliver only two direct sessions to children at the school and for this to be in the summer term of the academic year.
37. The Council’s duty to deliver Section F provision as outlined in Y’s EHC Plan is non-delegable. This means that even if it asks someone else to deliver the provision, the Council itself still has a duty to ensure it happens. Not delivering the direct and indirect provision set out in Y’s EHC Plan was fault. It would have caused Ms X distress and frustration. It meant Y did not have access to the services he should have as outlined in his plan. I have made a recommendation below to remedy this injustice.

Checking progress of a new plan

38. As set out in paragraphs 13 and 14, we do not expect the Council to keep a watching brief over the delivery of Section F provision. However, we do expect councils have procedures in place to check the SEN provision is being delivered when a new EHC Plan is issued or when a plan is reviewed.
39. In my enquiries, I asked the Council what checks it did to ensure Section F content was being delivered in the initial weeks after Y’s EHC Plan was issued. The Council said schools were advised to inform the Council and the designated SEN worker if there are any issues related to the delivery of the provision. There is no evidence to suggest the Council has a proactive approach in checking if the provision is being delivered.
40. Also, evidence from early-February 2024 provided by Ms X shows the Council’s response to her concerns about the lack of any provision having been delivered was to tell her to contact the SALT service directly herself.
41. When Ms X did then formally complain, the Council told her sessions would be delivered in the summer term, before it later provided a response to me which contradicted what the SALT service had said to Ms X about delivery and its own complaint response.
42. I am satisfied, that in the circumstances of this complaint, this shows a lack of oversight on the Council’s part. It has an over reliance on the SALT service to deliver content without knowing if and when this is taking place or whether it fulfils the Section F provision. It does not have reliable systems in place to proactively check the content of a plan is being delivered. Its complaint responses did not act on Ms X’s concerns but confirmed Y would have to wait until the 12 months after his plan had been issued was almost over, before he would access any of the Section F provision at all. This lack of oversight and decisive action is fault. It would have caused distress and frustration to Ms X. It also meant that Y did not access any of the direct SALT provision or significantly benefit from the indirect provision during the 12 months after his EHC Plan was issued in spring 2023. I have made a recommendation below to remedy this injustice.
43. The Ombudsman has already made a service improvement recommendation in a recent similar case, regarding the Council’s oversight of whether or not Section F provision is being delivered. The Council agreed to this recommendation so I will make no further related recommendations here.

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Agreed action

44. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Ms X for the injustice caused by the identified fault;
• make a symbolic payment to Ms X of £200 to recognise the distress caused by the identified injustice;
• arrange for the missed direct SALT for spring 2023 to spring 2024 to be delivered to Y in a school-based setting as per the plan in force at the time and to be delivered within six months of the date of my final decision; and
• remind officers and relevant managers of the need to take a proactive stance when issues relating to a lack of Section F provision are brought to its attention.
45. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
46. Payments made are in line with the Ombudsman’s guidance on remedies.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman