Summary: Ms B complained the Council failed to put in place provision in her daughter’s education, health and care plan. I am satisfied some of the claimed missing provision was in place but the Council failed to put in place the speech and language therapy. The Council also failed to make its own enquiries with the school when Ms B complained. That means Ms B’s daughter missed out on speech and language therapy and Ms B experienced distress. An apology, payment to Ms B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, Ms B, complained the Council failed to ensure the school put in place the provision in her daughter’s education, health and care plan (EHC Plan).
2. Ms B says this means her daughter missed out on provision which affected her and her daughter’s mental health.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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

6. As part of the investigation, I have:
• considered the complaint and Ms B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Ms B and the organisation 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

What should have happened

8. A child or young person with special educational needs (SEN) may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
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 B’s daughter has SEN. On 14 February 2024 the Council issued a final EHC Plan for her. That included various provisions in section F, including speech and language therapy.
11. The Council provided Ms B’s daughter’s school with a budget for the provision in the EHC Plan in March 2024. The school contacted the Council to ask about the arrangements for speech and language therapy which it said it could not provide.
12. In May Ms B put in a complaint as she believed the Council had not verified whether the school had put the provision in the EHC Plan in place. The Council responded to the complaint on 11 June. The Council explained it was satisfied the school had the funding to put in place the provision in the EHC Plan. The Council suggested Ms B return to the school if she wanted to understand how the school was supporting her daughter.
13. Ms B raised further concerns about her daughter not receiving 1:1 support, as set out in her EHC Plan, in June 2024. The Council responded in July 2024 confirming it had paid the school the budget for the provision in the EHC Plan. The Council told Ms B if she wanted to discuss the issue of support not in place she should contact the school.
14. In response to my enquiries on the complaint the Council accepts it failed to put in place speech and language therapy for Ms B’s daughter. The Council offered Ms B a financial payment of £500 to reflect the missed provision and £250 to reflect Ms B’s distress.

Analysis

15. Ms B says the Council failed to ensure her daughter’s school put in place the provision in her EHC Plan. Ms B’s daughter has listed large elements of the provision in the EHC Plan which she says was not in place. I am satisfied though that, with the exception of the speech and language therapy, the school has provided evidence it made provision available to Ms B’s daughter but she did not take it up. As the school has provided evidence to show the provision was in place I cannot say it was not.
16. That is different for the speech and language therapy though. The Council accepts speech and language therapy was not in place for Ms B’s daughter from the point at which it issued her EHC Plan. Failure to put that provision in place is fault. I am also concerned when Ms B raised concerns with the Council about provision not being in place the Council directed Ms B back to the school. That is despite the fact the school had already told the Council speech and language therapy provision was not in place. As the Council retains responsibility for ensuring provision in an EHC Plan is in place I consider the Council at fault for directing Ms B back to the school when she raised concerns about missing provision and for not acting on the information the school provided.
17. I am satisfied Ms B’s daughter has missed out on speech and language therapy provision from February 2024 until the end of 2024 due to fault by the Council. That is 2.5 terms of missed provision. Taking into account that during some of that period Ms B’s daughter would have been on study leave due to sitting her GCSEs I consider an appropriate financial remedy would be for the Council to pay Ms B £200 per term for the missing provision. That makes a total financial remedy of £500 which is what the Council has offered. The Council has also offered an additional £250 to reflect Ms B’s distress. I consider that an appropriate remedy for Ms B to reflect the fact she had to go to time and trouble to pursue her complaint because the Council had failed to check with the school about what provision was in place.
18. I also recommended the Council remind officers dealing with EHC Plans that the Council remains responsible for ensuring provision is in place and if a parent or carer raises concerns about missing provision the Council should make enquiries with the education provider rather than directing the parent/carer to the school. The Council has agreed to my recommendation.

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Action

19. Within one month the Council should:
• apologise to Ms B for the distress she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Ms B £750; and
• remind officers dealing with EHC Plans of the Council’s responsibility for ensuring provision in an EHC Plan is in place. That reminder should include the need to liaise with the education provider if a parent/carer raises concerns about provision not being in place, rather than directing the parent/carer back to the education provider.
20. The Council should provide us with evidence it has complied with the above actions.

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Final decision

21. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman