Summary: Miss X complained the Council failed to ensure her child, Y received Speech and Language provision in line with their Education, Health and Care (EHC) Plan. Y did not receive daily Speech and Language provision in line with their EHC Plan between November 2023 and November 2024 which was fault. The Council agreed to apologise and make a payment to Miss X to acknowledge the injustice caused.

The complaint

1. Miss X complained the Council failed to ensure her child, Y received Speech and Language provision in line with their Education, Health and Care (EHC) Plan between November 2023 and July 2024. Miss X said this has impacted on Y’s development.

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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).

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How I considered this complaint

5. I spoke to Miss X about her complaint and considered information she provided.
6. I considered information from the Council including its complaint responses to Miss X.
7. Miss X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

EHC Plans

8. 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. Section F sets out the special educational provision needed by the child or the young person.
9. 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).  

What happened

10. Miss X has a child, Y who is of primary school age. Y has special education needs (SEN) and an EHC Plan which the Council issued in mid-November 2023. Y attends an infant school which is named in the Plan.
11. Section F of the EHC Plan outlines the specialist provision Y is entitled to. This includes 30 minutes every day of Speech and Language Therapy (SALT) delivered by a trained adult following guidance from a Speech and Language Therapist.
12. In March 2024 Miss X complained to the Council about Y’s SALT provision. She told the Council the daily 30 minute provision was not in place as there was no trained adult and Y’s school had not received any advice or guidance from a Speech and Language Therapist.
13. The Council responded to Miss X in May 2024. It said it understood a referral was made to local health services for a SALT to see Y. It said it would ask when Y was due to be seen and check with the school about whether provision was in place or not. There is no evidence showing the Council did either.
14. Miss X remained unhappy and complained to us.
15. Since complaining to us Miss X said the NHS provided the school with a SALT report in August 2024. She said Y’s began receiving two 30 minute sessions a week from September 2024. Miss X said the full daily provision was in place by mid-November 2024.

My findings

16. As explained above it is the Council’s duty to ensure a child receives the specialist provision in an EHC Plan and that duty is non-delegable.
17. Following the conclusion of a SEND tribunal appeal the Council was responsible for ensuring Y’s specialist provision was in place from the point it issued the EHC Plan in November 2023. Y did not receive any SALT provision in line with their Plan between November 2023 and July 2024. Y then only received two of the sessions a week until November 2024. Despite Miss X raising these concerns with the Council there is no evidence it carried out any oversight. All of this is fault which has impacted on Y’s development.
18. The delay putting SALT in place in this case appears be because Y was on the waiting list to be assessed by an NHS therapist to advise the school on delivery of the provision. Until that happened the school was not in a position to deliver the SALT.

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Agreed action

19. Within one month of the final decision the Council agreed to take the following action:
1. apologise to Miss X to acknowledge the distress and uncertainty caused by its failure to ensure Y received the SALT provision in line with their EHC Plan between November 2023 and November 2024. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Pay Miss X £1000 to recognise the impact on Y caused by the loss of SALT provision in line with their EHC Plan between November 2023 and November 2024.
20. Within two months of the final decision the Council agreed to consider what measures it will put in place to ensure children with Speech and Language provision in an EHC Plan receive that provision while on a waiting list to be assessed by an NHS therapist.
21. The Council should provide us with evidence it has complied with the above actions.

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Final decision

22. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman