Summary: The Council failed to make sure that Mrs X’s child received the speech and language therapy set out in their Education Health and Care Plan. It also failed to make sure that the therapist circulated a report in time for the annual review of the Plan. This caused Mrs X distress and frustration, and meant that her child missed speech and language therapy for over a year. I have recommended the Council make a symbolic payment in recognition of the therapy Mrs X’s child missed out on.

The complaint

1. Mrs X complains that the Council failed to make sure that her child received the speech and language therapy (SALT) set out in her Education Health and Care (EHC) Plan. She also complains that the SALT service did not produce a report in time for the annual review of the EHC Plan.
2. Mrs X says that the Council’s failings have caused her distress and frustration, and meant that her daughter has missed SALT provision from January 2024 to February 2025. She says the review meeting could not adequately consider the SALT provision without a report. Mrs X also says the Council has not provided a sufficient remedy for the impact on her and her child.

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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(1), as amended)

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How I considered this complaint

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

The law and guidance

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. 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. 

11. 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 special educational needs and disability code of practice says that when there is an annual review, the school must seek advice and information about the child and must circulate this to all parties at least two weeks before the review meeting. (paragraph 9.176)

What happened

12. Mrs X’s child K has an EHC Plan. The Plan says that she will have 18 hours of SALT per year delivered by a therapist or member of their team. This is around 6 hours per school term.
13. The therapy provider changed in January 2024 and K’s SALT stopped. Mrs X called and emailed the Council to try to get the SALT reinstated. K had two visits from a SALT therapist towards the end of 2024 for an assessment.
14. K’s EHC Plan annual review meeting was in December 2024. Reports should be circulated to all parties two weeks before the review meeting. The therapist called Mrs X to discuss the lack of provision the day before the review meeting. The therapist produced a report after the meeting and so the review meeting could not consider the SALT therapist’s views.
15. Mrs X complained to the Council that the SALT had been missed for some time, and the SALT service had not produced the report in time for the annual review of the EHC Plan. She asked the Council to fund catch up SALT sessions that she would arrange with a private therapist to help make up for the missed provision.
16. The Council acknowledged that the SALT had not been delivered in accordance with K’s EHC Plan. It also agreed that the SALT service had not prepared the report in time for annual review meeting. The Council apologised for these shortcomings, and that Mrs X had needed to contact it several times to address the issue. The Council said that it would discuss the delays with the SALT service to make sure reports were ready on time in future. The Council said that the impact on K had been remedied by reinstating the SALT. It said it would not fund catch up sessions, and in general the SALT service considered catch up therapy to be unsuitable for children.
17. The Council amended K’s EHC Plan following the review meeting, and issued the new final EHC Plan in January 2025.

Findings

18. There was fault by the Council. It did not meet its duty to ensure that the EHC Plan provision was made. The Council also remains responsible for the annual review and should have ensured that the SALT report were completed and circulated at least two weeks before the meeting. The Council has apologised to Mrs X for the failings and ensured the SALT is reinstated.
19. It is clear that K needed SALT, and continues to need it. The Council’s failings meant that K missed SALT from January 2024 to February 2025, and this is likely to have impacted on her progress to the outcomes set out in her EHC Plan. In total K missed around 3.5 terms of SALT equating to around 21 hours of missed therapy.
20. The Council’s failings also caused Mrs X distress and frustration.

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Action

21. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
22. The Council will within 6 weeks of this decision the Council will:
• make a symbolic payment to Mrs X of £700. This represents a payment of £200 per term and is in recognition of the impact on K of the missed SALT provision, and the distress and frustration caused to Mrs X.
23. The Council should provide us with evidence it has complied with the above actions.

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Decision

24. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman