Summary: Mrs X complains the Council failed to secure all the speech therapy set out in her child’s Education, Health and Care Plan. The Council has accepted service failure in that three sessions were missed. It has apologised and provided catch up group provision. It has agreed to also refund the cost of three private sessions Mrs X organised.

The complaint

1. Mrs X complains the Council failed to provide special educational provision (speech and language therapy) as set out in her child’s Education, Health and Care (EHC) Plan.
2. Mrs X also complains the level of speech and language therapy in the EHC Plan is insufficient.
3. Mrs X says while the Council offered catch up therapy in the summer holidays, this was group therapy and should not be seen as a replacement for the individual sessions missed.
4. Mrs X says she has spent time chasing the Council and paid for private speech and language therapy. Mrs X says private therapy has taken her child away from other activities and believes if the EHC Plan had been correctly implemented her child would have made more progress.
5. Mrs X wants the level of speech and language therapy to be increased and / or direct payments for therapy to be provided so parents can source this themselves. Mrs X also considers the level of one-to-one support in the EHC Plan and funding needs to be increased.
6. Mrs X told me she tried to apply to the Tribunal but could not do so as she did not have a decision letter.

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The Ombudsman’s role and powers

7. 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)
8. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
9. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
11. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
12. 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)

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How I considered this complaint

13. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
14. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
15. 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 found

Relevant law and guidance

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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
17. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section C: Health needs related to the child or young person’s SEN.
• Section F: The special educational provision needed by the child or the young person. 
• Section G: Any health provision required because of their learning difficulties or disabilities which results in the child or young person having SEN.
• Section I: The name and/or type of educational placement.
• Section J: Personal budget.

18. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
19. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
20. 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)  
21. 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. 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. 

22. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The process is only complete when the council issues a decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
23. If the council decides not to amend an EHC Plan, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
24. Where the council proposes to amend an EHC Plan, it must issue the final amended EHC Plan within twelve weeks of the review meeting. If the parent disagrees with the content of the final amended Plan they have a right of appeal to the Tribunal.

What happened

Speech and language therapy

25. The Council issued a final EHC Plan in Spring 2023 which included six sessions of input from a speech therapist per year: one observation of 60 minutes and 5 x 60 minute sessions with the child and a school staff member, to include at least 20 minutes face to face time with the child, plus demonstration, problem solving and discussion time.
26. Speech therapy interventions would be delivered 1:1 or in a small group by school staff throughout the year.
27. The therapy was included in Section F of the EHC Plan, so the responsibility to secure this lay with the Council. The Council arranged for the NHS speech therapy service to provide this.
28. Mrs X complained about lack of therapy and the content of the EHC Plan in Summer 2024. Mrs X said she was paying for private therapy at £75 per session and had spent £450 so far.
29. The Council sought input from the NHS to reply to the complaint. The NHS speech therapy team acknowledged challenges with provision of therapy due to a shortage of therapists and recruitment problems. It said it had arranged group catch-up sessions during the summer holidays for children affected. Mrs X’s child attended these sessions.
30. Records from the group sessions show Mrs X’s child made progress and was to receive another block of therapy.
31. The Council’s response to the complaint in Summer 2024 apologised for the missed sessions and explained the action it and the NHS service had taken to address this.

EHC process

32. The school held an annual review in early 2024. The Council’s decision after the review was to maintain the Plan. The Council sent Mrs X a decision letter. This did not mention appeal rights in the body of the letter but did include an attachment which referred to appeal rights available. Mrs X says she did not receive this letter until two months after the review meeting when she asked for a decision letter to be able to bring an appeal.
33. The Council sent Mrs X a further copy of the Spring 2024 decision letter. Mrs X says the Tribunal needed a letter dated within two months. Mrs X asked for an emergency review meeting to be held to obtain a new appeal right. This took place in early Autumn 2024. The Council’s decision was to amend the Plan, but the Council told me no changes to speech therapy provision were considered necessary.
34. The Council told me Mrs X has registered an appeal with the Tribunal and the Council is addressing issues raised via the working document process.

What I have and have not investigated

35. I have investigated the above complaint except for Mrs X’s concerns about the level of provision in the EHC Plan. The content of EHC Plans is a matter for the Council and Tribunal. Mrs X has now appealed to the Tribunal which is the correct forum to consider these matters. The Ombudsman has no jurisdiction to investigate a decision which is the subject of an appeal. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

Analysis

Fault

36. The Council secured the provision in that it asked the NHS to provide the speech therapy, and the NHS agreed to do so. We would not have expected the Council to have checked again until the next review unless it received a complaint.
37. Mrs X did not raise a complaint until Summer 2024. The Council then investigated and found Mrs X’s child had missed three sessions. It apologised for the service failure and confirmed catch-up group sessions would be held over the summer holidays.
38. The Council did not consider it was responsible for Mrs X’s decision to fund private therapy. Mrs X has commissioned private therapy above the level in the EHC Plan.
39. There is not enough evidence to say there was any delay by the Council in informing Mrs X of the Spring 2024 review decision or giving her a right of appeal. The letter I have seen is dated May, but Mrs X says she did not receive it until July. Mrs X has now appealed. It is not for me to speculate what the outcome of the Tribunal appeal may be.

Injustice

40. Mrs X’s child, and school staff who had to deliver interventions, missed out on three sessions of input from the speech and language therapist. This was service failure, which the Council has accepted.
41. While catch-up provision was provided and Mrs X’s child made progress during these sessions, there is uncertainty what difference more input throughout the year would have had. This uncertainty is an injustice. The impact for Mrs X’s child will have been mitigated by the fact they were receiving private therapy alongside the provision in the EHC Plan.

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Action

42. The Council has already apologised for service failure causing missed therapy and provided group catch-up provision. This is good practice.
43. Within four weeks of my final decision, the Council has agreed to refund Mrs X for the cost of three private therapy sessions to acknowledge the missed sessions, being a payment of £225 (3 x £75).
44. The Council will provide us with evidence it has complied with the above actions.

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Decision

I find service failure causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman