Summary: Mrs X complained the Council failed to provide the provision set out in her son’s Education, Health and Care (EHC) Plan. We found the Council’s failure to ensure Y received the speech and language therapy (SALT) set out in his EHC Plan is fault. This fault has caused an injustice. Mrs X has incurred costs in employing a private therapist to try and mitigate the impact of the missed SALT provision on her son. The Council will apologise, make payments and take action to remedy the injustice.

The complaint

1. Mrs X complained the Council failed to provide the provision set out in her son’s EHC Plan. As a result Mrs X has incurred costs in employing a private therapist to try and mitigate the impact of the missed SALT provision on her son.

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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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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(1), 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 have an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

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What I found

Education, Health and Care (EHC) Plan

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.
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)
10. 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.

What happened here

11. Mrs X’s son Y has an EHC Plan and attended a mainstream school. As Y was not receiving the Speech and Language therapy (SALT) provision in his EHC Plan, in August 2024 Mrs X paid for a private SALT assessment and weekly sessions.
12. Following the annual review of Y’s EHC Plan in January 2025 the school told the Council it could no longer meet Y’s needs. It also told the Council that the waiting list for Y to be seen by SALT was 18 to 24 months. The NHS SALT service also confirmed that Y was last seen in October 2023 and had been on the waiting list for further contact.
13. On 20 January 2025 Mrs X’s representative Mrs Z made a formal complaint to the Council about the failure to deliver the special educational provision in Y’s EHC Plan. She asserted the failure to provide a setting where SALT was embedded into the curriculum was extremely detrimental to Y’s language and communication development. Mrs Z said Y is non-verbal and without SALT being delivered within his curriculum he would not be able to achieve the outcomes set out in his EHC Plan.
14. Mrs Z asked the Council to reimburse Mrs X the £965 she had paid for private SALT. She also asked the Council to complete Y’s annual review and issue an amended EHC Plan naming specialist provision as soon as possible.
15. The Council responded on 31 January 2025 and confirmed Y’s annual review would progress in line with the statutory guidance and that it would consult with Mrs X’s preferred specialist school.
16. It acknowledged there were significant delays in the NHS SALT service due to service demands and capacity. And that Mrs X had been funding private therapy while Y was waiting to be seen, in order to support him in school.
17. The Council offered to fund 10 sessions with Y’s private therapist in the interim. This would include work on the development of speech sounds and motor speech to support language and functional communication as advised by the NHS SALT therapist. And would be reviewed on a 10-weekly basis.
18. Mrs X has accepted the Council’s offer but believes the Council should also reimburse the cost of private therapy Y has already received. Mrs Z has asked us to investigate Mrs X’s complaint. She says the family would not have had to incur these costs if Y had received the provision set out in his EHC Plan.
19. Since Mrs Y complained to us the Council has issued a final EHC Plan naming a specialist school from September 2025.
20. In response to my enquiries the Council says it has now paid for 10 sessions with Y’s private therapist at a total cost of £600. It has offered a further payment of £400.
21. The Council has also confirmed it is aware of five other children who are not receiving any or only part of the SALT provision in their EHC Plan. It says that where this missed provision is brought to its attention, the Council will consider it on a case by case basis with input from NHS therapists. The Council says it funds provision if a delay has been highlighted.

Analysis

22. The Council’s failure to ensure Y received the special educational provision set out in his EHC Plan is fault.
23. The Council issued Y’s original EHC Plan in November 2023, yet Y did not receive any SALT provision until August 2024 when Mrs X arranged and paid for this privately. This is a significant injustice.
24. The Council agreed to commission Y’s private therapist to provide sessions from February 2025. This is to be welcomed but does not remedy the injustice caused by the earlier lack of provision or cost to Mrs X in providing it herself.
25. I did not consider the Council’s offer to pay £400 is an adequate remedy. The Council should reimburse Mrs X the full £965 she has paid for a private therapist.
26. The Council says it is aware of other children who are not receiving any or only part of the SALT provision in their EHC Plan. It says it will consider funding provision if a delay is brought to its attention. Given the significant waiting list for the NHS SALT service we would expect the Council to be more proactive in identifying and addressing delays rather than waiting for them to be brought to its attention.
27. In January 2025 the NHS told the Council its waiting list for a follow up appointment was 18 to 24 months. According to its website the current waiting time is 24 months. We would expect the Council to take account of this and put measures in place to ensure children with SALT provision in an EHC Plan receive that provision.

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Action

28. The Council has agreed that within four weeks of the final decision it will:
• apologise to Mrs X and pay her £200 to recognise the frustration, difficulties and distress the failure to ensure Y received the special educational provision set out in his EHC Plan has caused. 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.
• reimburse Mrs X the sum of £965 she has incurred in private SALT sessions;
29. The Council has also agreed that within eight weeks of the final decision it will:
• review whether it has suitable processes in place to check that all elements of Section F in a new or amended Plan are fully in place, and that additional funding requests are considered and decided in a timely way.
• consider what measures it will put in place to ensure children with Speech and Language provision in an EHC Plan receive that provision while on a waiting list for an NHS therapist.
30. The Council should provide us with evidence it has complied with the above actions.

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Decision

31. 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