Summary: Ms X complained the Council failed, for the second time, to put in place the provision for speech and language therapy in her son’s EHC Plan. The Council accepts it failed to ensure the number of sessions in the EHC Plan were provided. That meant Ms X’s son missed out on speech and language therapy provision. An apology, payment to Ms X, arrangements for additional speech and language therapy sessions, training for officers and introduction of a process to monitor issues with provision is satisfactory remedy.

The complaint

1. The complainant, Ms X, complained the Council again failed to ensure her son received all the speech and language therapy provision set out in his education, health and care plan (EHC Plan). That is despite a previous Ombudsman investigation being upheld about the same matters.
2. Ms X says her son has missed out on speech and language therapy provision as a result.

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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 an injustice, 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)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and Ms X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received 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

What should have happened

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 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)

What happened

10. Ms X’s son has special educational needs and an EHC Plan. That EHC Plan says during the year Ms X’s son should receive nine direct sessions of speech and language therapy with 7.5 hours of indirect speech and language therapy provision.
11. In a previous Ombudsman investigation we found the Council had not put in place all the sessions set out in Ms X’s son’s EHC Plan in the academic year 2023/24.
12. Ms X made a further complaint to the Ombudsman because she said despite the Council’s agreement it had only provided her son with four direct sessions for speech and language therapy in the academic year 2024/25.

Analysis

13. In response to my enquiry on the complaint the Council accepted it had not provided 9 sessions of speech and language therapy in the academic year 2024/25. The Council says that is because the speech and language therapy provider did not consider Ms X’s son needed that amount of sessions. The Council says Ms X’s son received five sessions of speech and language therapy.
14. The Council has not provided any evidence to show how many sessions of speech and language therapy Ms X’s son received during 2024/25. However, Ms X has provided evidence the provider only put in place four sessions. I am therefore satisfied Ms X’s son only received four sessions of speech and language therapy. Failure to put in place nine sessions of speech and language therapy is fault.
15. The Council accepts that while Ms X’s son’s EHC Plan says he should receive nine sessions of speech and language therapy it has a responsibility to ensure that is in place. I am particularly concerned the same error has happened as in our previous complaint investigation. That means Ms X’s son missed out on five speech and language therapy sessions he should have received.
16. The Council has proposed the following remedy for the complaint:
• an apology to Ms X;
• arrangements for the missing sessions to be provided during the first term of the 2025/26 academic year, in addition to those set out in the EHC Plan for that year;
• pay Ms X £300 to reflect her frustration and inconvenience.
17. I consider that a satisfactory remedy for Ms X and her son.
18. The Council also says it will:
• provide training to those dealing with EHC Plans to ensure they are aware of the duty to secure special educational needs provision in an EHC Plan, with the training to take place before the end of December 2025;
• to work on a pathway to ensure where a provider fails to put in place provision the Council is notified without delay so it can make alternative arrangements to secure the provision;
• work on building its own therapy team to provide additional capacity and deliver therapy where the existing provider will not assist. Further to that the Council has appointed two speech and language therapists and intends to appoint a further one. The Council is also advertising occupational therapist roles;
• prepare a protocol to agree with the speech and language therapy provider which will set out the process to be followed where the provider does not agree to provide the therapy in the EHC Plan.
19. I welcome the Council’s actions here and do not make any further recommendation for a procedural remedy.

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Action

20. Within one month of my decision the Council should:
• apologise to Ms X for the distress and frustration she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Ms X £300;
• arrange for Ms X’s son to receive the five missing speech and language therapy sessions from 2024/25, with that additional provision completed by the end of the academic year 2025/26.
21. Within three months of my decision the Council should:
• complete a training session for those dealing with EHC Plans to remind them of the duty to secure special educational needs provision in an EHC Plan and what happens when things go wrong; and
• provide evidence to the Ombudsman of any process the Council has introduced to monitor provision in EHC Plans and to take action when provision is missing.
22. The Council should provide us with evidence it has complied with the above actions.

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Final decision

23. 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