Summary: Ms X complained to the Council on behalf of her child, Mr Y, that the Council delayed putting in place speech and language therapy provision. We found the Council was at fault for the time taken to put in place the provision. This meant Mr Y missed speech and language provision he should have received. To remedy the injustice caused the Council agreed to apologise and make a payment to recognise the missed speech and language provision.

The complaint

1. Ms X complains on belief of her son Mr Y, that the Council delayed putting in place speech and language provision (SALT) after it issued a post Tribunal Education, Health and Care Plan for her child.
2. Ms X said Mr Y has missed out on SALT provision.

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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. 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.
5. 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) 
6. 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(1), as amended)

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What I have and have not investigated

7. I have investigated matters from May 2024, after the SEND Tribunal’s decision until January 2025, the end of the complaints process.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
10. 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

Law and guidance

11. 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. 
12. 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)  
13. In R (on the application of BA) v Nottinghamshire County Council [2021] EWHC 1348, a judicial review about the Council’s s.42 duty, the Court rejected the Council’s argument it only had to put provision in place within a reasonable time rather than immediately. The Court found the five-week period built into the SEND Regulation 44 following a Tribunal decision to issue an amended EHC Plan was designed to allow time for implementation and the bulk of the child’s provision, at least, should have been in place within that time.

What happened

14. Mr Y, has special educational needs. On 24 May 2024, the Council issued a final EHC Plan for Mr Y following a decision from the SEND Tribunal. The EHC Plan contained SALT provision.
15. The Council said it carried out a consultation process to find Mr Y a specialist post 16 school placement as he was currently being educated in the home. The Council said it also tried to find a SALT alongside this to provide the provision in Mr Y’s EHC Plan.
16. In July 2024, a SALT provider confirmed they could work with Mr Y but from September 2024. Mr Y started with this SALT provider in September 2024.
17. After one session Ms X cancelled the SALT provider as the SALT provider asked Mr Y why he was at home, asked whether he was on medication and put Mr Y’s EHC Plan on screen during his session. Ms X said Mr Y told her he did not feel comfortable with this SALT provider. Ms X asked the Council to provide a new SALT provider.
18. In November 2024, Ms X complained to the Council about the delays putting in place Mr Y’s SALT provision.
19. In December 2024, the Council responded to Ms X’s complaint. The Council said there was a delay sourcing a SALT following the post Tribunal EHC Plan but this was due to a shortage of SALTs. The Council said Ms X chose to cancel the SALT provider it put in place but the Council had now been able to find a new SALT provider who could start in January 2025.
20. Ms X asked the Council to consider her complaint at the next stage of its process. Ms X said Mr Y had not received any SALT provision and the Council should have provided this as soon as it finalised the May 2025 EHC plan.
21. The Council responded to Ms X’s complaint and told her it believed it had addressed her concerns at stage one and explained why there were delays finding a SALT provider.
22. In early January 2025, Mr Y started session with the new SALT provider.

Analysis

23. After the Council finalised Mr Y’s post SEND Tribunal EHC Plan on 24 May 2025, it should have had the SALT provision in place within 5 weeks, so by 13 June 2024. Failure to do so was fault.
24. Mr Y’s SALT provision was to be delivered in a school or educational setting, therefore he missed out on getting SALT provision from mid-June 2024 to the end of the school term in July 2024. This caused an injustice to Mr Y as he has not received the SALT provision he was entitled to.
25. From early September 2024, the Council put in place a SALT provider, however Ms X decided to cancel this provider. I cannot see any good reasons why this provider was not suitable for Mr Y. The questions Ms X says the SALT asked Mr Y were not inappropriate and given his age it was suitable for the therapist to try to engage Mr Y to get his views. I therefore do not consider the Council at fault for the time Mr Y was without SALT from September 2024 until January 2025.

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Agreed Action

26. Within one month of my final decision, the Council agreed to:
• Apologise to Ms X and Mr Y for the injustice caused for the delays in finding a SALT provider. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mr Y £150 to recognise the loss of SALT provision from 13 June 2024 to September 2024.
27. The Council should provide us with evidence it has complied with the above actions.

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Decision

28. I find fault causing injustice. The Council agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman