Summary: Mrs X complained the Council failed to ensure her child (Y) received the specialist provision set out in their Education Health and Care (EHC) Plan. The Council failed to ensure Occupational Therapy (OT) and Speech and Language Therapy (SALT) provision was in place as outlined in Y’s EHC Plan for the 2023/2024 school year. This caused Mrs X distress, frustration and uncertainty and Y’s needs went unmet for longer than necessary. The Council should apologise and make a payment to recognise this.

The complaint

1. Mrs X complained the Council failed to ensure her child (Y) received the specialist provision set out in their Education Health and Care (EHC) Plan for the 2023/2024 school year.
2. This has caused Mrs X distress, frustration and uncertainty as Y’s needs went unmet for longer than necessary.

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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. 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 X and the Council as well as relevant law, policy and guidance.
7. Mrs X 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

Relevant law and guidance

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. 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. Councils are responsible for making sure all the arrangements set out in in the EHC Plan are put in place.
10. The Council has a legal duty to ensure the educational and social care support set out in a final EHC Plan is delivered. This duty is non-delegable.

What happened

11. Mrs X has a child (Y) of primary school age. Y has special educational needs and an EHC Plan which outlines the specialist provision they require. Section F of the Plan outlined for the 2023/2024 school year they were entitled to the following provision:
• An intervention plan based on Y’s language and communication needs devised by a Paediatric Speech and Language Therapist. Y will have three clinic Speech and Language Therapy appointments per year each lasting approximately an hour and three quarters which include assessment, observation and liaison time. There will be two hours following each visit for the Therapist to write up notes and update the care plan. They will also provide an up-to-date report for the annual review.
• A minimum of three sessions by the Paediatric Occupational Therapist in the school setting to review Y’s progress and to adjust and review the intervention plan. This will include two hours following each session to write up notes and update the plan.
12. In June 2024, Mrs X raised a stage one complaint that Y had not received the provision as outlined in paragraph 11. Mrs X said she had chased this numerous times and discussed it both at the annual review meeting in October 2023 and a further meeting in April 2024.
13. The same month the Council issued a stage one complaint response. The Council upheld the complaint and apologised that the provision was still not in place. It said it would be in touch with an update as soon as possible.
14. In July 2024, Mrs X escalated her complaint. The following month the Council issued a stage two complaint response. The Council upheld her complaint as it accepted that Y had not had OT or SALT provision to date. The Council agreed to backdate the funding via direct payment for Mrs X to use in the 2024/2025 school year.
15. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us. Mrs X said the Council has not backdated the funding. The Council provided evidence it did backdate the funding via direct payment for the OT which was approximately £750 in summer 2024. However, it accepts it did not backdate the funding for SALT which equates to approximately £340.

My findings

16. Y was entitled to OT and SALT provision for the 2023/2024 school year once the Council issued the final EHC Plan. The Council has a legal duty to ensure provision in line with section F is secured and provided. The Council has accepted that it failed to provide OT and SALT for the whole school year from September 2023-July 2024. This was fault which has meant Y has lost the opportunity to receive this provision and their needs have gone unmet for longer than necessary. This has caused Mrs X distress, frustration and uncertainty.
17. We have found similar fault with the Council on separate cases which has resulted in service improvements. In these cases, the Council agreed to:
• develop an action plan to show how it intends to address the ongoing lack of Occupational Therapy and Speech and Language Therapy availability in its area.
• review its procedures to ensure the provision set out in section F is in place from the date the final EHC Plan is issued.
18. We will continue to monitor the Council’s progress on the above actions through our casework. Therefore, no further service improvements are required.

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Action

19. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mrs X to recognise the distress, frustration and uncertainty caused by the Council’s failure to implement the SALT and OT provision as set out in Y’s EHC Plan. 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 Mrs X £300 to recognise the distress, frustration and uncertainty caused by the Council’s failure to implement the SALT and OT provision set out in Y’s EHC Plan.
3. Pay Mrs X the money for lost SALT provision.
20. The Council should provide us with evidence it has complied with the above actions.

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Decision

21. I have completed this investigation. I found fault and the Council has 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