Summary: Mrs B complained the Council failed to provide speech and language therapy for her son, or respite breaks for her. We uphold both parts of Mrs B’s complaint. The Council had not ensured adequate records were kept of the reasons for the therapy delay. And it delayed providing respite, which it had assessed Mrs B as needing. The faults caused uncertainty and distress. The Council has agreed to our recommendations: for symbolic payments to Mrs B and that it reminds its officers of the importance of record keeping.

The complaint

1. The complainant (Mrs B) complains the Council delayed providing the following contents of her son’s (X) Education, Health and Care (EHC) Plan:
1. speech and language therapy (SLT), between September 2023 and September 2024:

• the Council’s complaint response listed sessions that were assessments, not therapy sessions, so it should not have counted them when considering how much therapy X had had; and
• SLT did start at the end of February 2024. But after X stopped attending his educational placement, in mid-March, the SLT stopped as the therapist could not work in the home environment. The Council should have ensured suitable alternative arrangements for SLT were in place. It did not do this;
2. respite for Mrs B between August 2023 and February 2024. This should have been provided by the Council’s Children’s Social Care Team. Its complaint response did not present an accurate picture of its role in the delay in finding some respite provision.

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

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What I found

Legal and administrative background

Education Health and Care Plans

8. A child or young person with special educational needs may have an 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. 
9. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs;
• Section D: Social care needs related to the child or young person’s special educational needs (SEN);
• Section F: The special educational provision needed by the child or the young person;
• Section I: The name and/or type of educational placement;
• Section H2: Any social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN.

Social Care Provision in EHC Plans

10. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child or young person’s social care needs. Where the council decides it is necessary for support to be provided by Early Help or under Section 17 of the Children Act 1989 (child in need) this should be included in Section H2 of the EHC Plan. 

Maintaining the EHC Plan

11. A 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)

Reviewing EHC Plans

12. 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 council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews.

Duty to safeguard and promote welfare

13. The Children Act 1989, Section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under Section 17.
14. The Care and Support Statutory Guidance says while a council can take into account its budget when considering how best to meet an individual’s needs, if it has assessed an eligible need, it must meet it.

What happened

15. What follows is a summary of key events and is not intended as a comprehensive account of everything that took place.

Background

16. X is a teenager with SEN. He has had an EHC Plan since 2021. He moved to a specialist school in 2021, but stopped attending that school at the end of 2022. Mrs B is X’s sole carer. In April 2023 X started at a new school on a reduced timetable.
17. A previous Ombudsman investigation looked at the period to the end of July 2023. It found fault in missed Speech and Language Therapy provision and that the Council had not provided Mrs B with respite. This complaint considers events from August 2023 to September 2024. Mrs B made a new complaint to the Council before complaining to the Ombudsman.

Speech and language therapy

18. Mrs B complains about the provision of SLT for X from September 2023 to September 2024.
19. The Council had reviewed X’s EHC Plan in March 2023. Included in that Plan was provision for speech and language therapy. The Plan notes:
• the minimum SLT provision should be:
• assessment and liaison – 5 hours per year;
• therapy – 4 hours per year;
• administration – 3 hours per year.

• “[the] SLT provision is subject to [X] being available in school and key teaching / class staff availability”;
• a Speech and Language Therapist would formally assess X once he had settled at a new educational setting;
• part of the support provided by the Therapist included demonstrating social communication activities and strategies to a member of the school’s staff.

20. Earlier in the year, the Council’s Speech and Language Service tried to complete an introductory assessment with X. But its Therapist could not complete a formal assessment due to X’s anxiety. In September the school had acknowledged previous issues with carrying out a SLT assessment.
21. In early October, in response to contact from Mrs B, the school advised her a new Therapist was due to start an assessment later in the month.
22. Over a few weeks in late October and into early November the Therapist carried out four assessments with X. The Council says the assessments were spaced out to cater to X's “…profile and accessibility needs”. Following the assessments, the school emailed the Therapist seeking input on how to “…implement and deliver therapy”.
23. The school, Therapist and Mrs B had a meeting at the end of November 2023 to discuss delivery of X’s SLT. Following the meeting the Therapist sent the school and Mrs B a proposal for weekly-based language therapy.
24. The Council says that it does not have a record of the November meeting. But “…there was concern raised that the SaLT sessions themselves were causing anxiety and so they were suspended in the interests of [X] and then reinstated in the February”.
25. At the end of February 2024, the Therapist had a session with X. Her record of that meeting noted X had:

“…show[n] remarkable progress in communication and social interaction skills. By implementing the recommended strategies…[X’s] overall development in speech and language can be further enhanced”.

26. After a March session with X, the Therapist provided further SLT advice.
27. X’s placement at school ended in mid-March due to his anxiety. Around a week later the school, Mrs B, X’s social worker and X’s SEND (special educational needs and disability) caseworker had a review meeting. The record of the meeting notes:
• the school’s headteacher recognised the impact staff changes and absences had had on X’s anxiety;
• the amount of new staff had been challenging for X and his SLT outcomes;
• a plan for after X had re-engaged with the school environment, at his pace.
28. The Council says Mrs B met with its officer in May. It says they discussed a change of placement and looked at “priorities for change”. It says its officer’s recollection was “…they explained that moving X to education out of school would likely lead to a delay in the Council delivering some services, as it would need to recommission them”. It does not have a record of that meeting.
29. The Council says:
• after the May meeting it agreed to work towards putting a package together for September 2024;
• Mrs B noted in an email her main priorities for X in that period were around occupational therapist support and swimming;
• “…professionals in this case have acted in good faith and have tried to support [X] and Ms [B] to the best of their abilities, notwithstanding the immense complexities of the case. The school was delivering SaLT but only suspended it in [X's] interests”;
• it would not expect the school to minute every meeting or necessarily share records with the Council.
30. In September 2024, X started on a new package of support, including SLT. Mrs B says he has responded positively to the new arrangements.

Respite

31. X has a Child in Need (CiN) Plan (see paragraph 13). The key support measure is for respite for Mrs B (variable times over term and holiday periods). The need for this support is set out in X’s EHC Plan.
32. A previous Ombudsman decision noted the Council had not been able to provide respite for X and Mrs B over an extended period due to many providers either not having staff available or not being able to meet X’s complex needs. The Council did provide Mrs B with some payments in lieu of respite. Our decision noted we recognised there is a national shortage of specialist respite provision. But statutory guidance clearly said if a council was satisfied it was necessary to provide support services, it must provide them, regardless of their resources.
33. Mrs B made a new complaint about the respite provision, as it was ongoing after the end of the previous investigation.
34. A September 2023 review of X’s CiN Plan noted:
• its searches for agencies to provide a personal assistant to allow respite for Mrs B. It listed problems with the providers it had tried;
• Mrs B advised she did not have any capacity to complete a short break assessment, as X was only attending school for a few hours per week. She would look to rebook when she had further capacity;
• the respite support was outstanding “…but new agencies are now having capacity”;
• there was a risk of Mrs B becoming unwell “…due to the high demands and high level of care provided to [X]”.
35. At a mid-November CiN review the social worker:
• wondered if it was the right time to revisit the short break assessment. Mrs B advised of obstacles preventing her from having energy to co-ordinate searches. She advised she was exhausted;
• suggested whether, initially, a provider could visit at the school. Mrs B agreed to that suggestion.
36. Later in November there was a follow up and in December a short break referral was sent to providers. A worker profile was sent out in January 2024 with a view to progressing, but Mrs B had been unwell.
37. In January, X was matched with a worker from a care provider.
38. In response to Mrs B’s complaints the Council said it had taken action to improve the supply of personal assistants.

Analysis

SLT

39. X’s March 2023 EHC Plan was the most recent one for most of the time this complaint considers. It sets out minimum SLT over the course of a year. For the period March to August 2023 (which is outside the scope of this investigation) X had not received any SLT.
40. Some face-to-face assessments with X did begin in October 2023 and into November. The Council says the direct Therapist support was suspended between then and February 2024, but has no contemporaneous record of the reasons for this.
41. The Ombudsman’s Principles of good administrative practice says keeping proper and appropriate records is one of our basic principles in how we determine what good administration looks like. I accept the Council’s assertion that not every meeting warrants a record. But I would expect to see a record of the rationale for important decisions, which is what a decision to pause a programme of Therapy set out in an EHC Plan is. To not have such a record is fault. And this is fault, ultimately, by the Council, due to its non-delegable duties under Section 42 of the Children and Families Act (see paragraph 11).
42. I do note however, that when the Therapist did see X again in February 2024, she recorded he had made “remarkable progress”. This suggests that X did likely have some SLT input during the period. That is as expected, as his EHC Plan had an action for the Therapist to demonstrate social communication activities and strategies to a member of the school’s staff.
43. X stopped attending the school in March 2024 and, because of this, the SLT stopped (as it was commissioned by the school). As X remained on the school role until August, the Council did not have duties to provide alternative education. However, the Council’s Section 42 duties – to deliver the contents of X’s EHC Plan – remained, despite the end of the placement. The Council has set out what it remembers as being agreed with Mrs B as the key priorities for X. But, again, it does not have a contemporaneous record. And Mrs B disputes the Council’s version of events. So I find fault with the lack of record, leading to uncertainty about what was discussed, which in turn leads to uncertainty about whether X could have received further SLT.
44. The reasons for the lack of progress on providing any SLT led by a Therapist – from November to the beginning of February and then from March to September – are disputed. On the evidence available I cannot decide, even on the balance of probabilities, the extent to which further direct SLT might have been a benefit for X in either of these periods. That is why the injustice I have found is limited to uncertainty.

Respite

45. As in our earlier decision, the Council’s records show that Mrs B was in desperate need of respite. They also show the Council made some attempts to source appropriate respite provision for the family. The Council has advised us of a shortage of personal assistants to provide the support Mrs B needs. I also note its update that it had taken action to improve the supply of personal assistants. But the continuing delay was not in line with the Care Act, or statutory guidance, and so was service failure.
46. The records show that Mrs B said she did not have capacity in September. But she gave the same advice in November. At that point the Council suggested an alternative which was acceptable to Mrs B. Given the urgency of the need, it was fault to have not earlier explored these alternative arrangements.

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Agreed action

47. I recommended that, within a month of my final decision, the Council would:
• make a payment of £200 to Mrs B for the uncertainty and distress caused by the inadequate record keeping about the SLT provision;
• make a payment of £500 to Mrs B for the missed opportunities to provide respite for the period this complaint considers;
• remind its SEND officers of the importance of ensuring a record is kept of the reasons for important decisions.
48. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.

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Decision

49. I find fault causing injustice. The Council has agreed actions to remedy injustice, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman