Summary: There was fault by the Council, because it did not secure provision set out in a child’s education, health and care plan. However, this did not cause any significant injustice. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Mr P.
2. Mr P complains the Council has failed to ensure that his son, V, receives elements of his the provision set out in his education, health and care (EHC) plan, specifically relating to speech and language therapy.

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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. 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

4. I reviewed Mr P’s correspondence with the Council, V’s EHC plan, and comments the Council made in response to my enquiries.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. V has a learning and developmental disorder and is subject to an EHC plan, which sets out that he should receive speech and language therapy (SALT). He started primary school in September 2022, where he attends a specialist unit for children with communication difficulties.
7. The EHC plan says that, each school term, there will be a single 45-minute meeting between V’s parents, school staff and a speech and language therapist, to discuss his needs and to agree outcomes. Separately, there will also be a single 60-minute session per year between a therapist and V himself to re-assess his needs.
8. The Council uses the NHS as its SALT provider.
9. In March 2023 Mr P submitted a complaint to the Council. He said the school had been asking for “a SALT session from the start of the school … year”, but it had taken until November for someone to visit V. The school then did not receive a report about this visit until February, by which point V should have been having his second SALT session. Mr P complained the SALT did not discuss and agree outcomes as required by the EHC plan.
10. Mr P said he was concerned this had had a detrimental impact on V’s progress. He asked the Council to provide a personal budget to allow “a locum” therapist to complete the work required.
11. The Council responded in April. It acknowledged a lack of capacity in the NHS meant the school had been unable to arrange V’s SALT sessions. However, it said it was confident school staff “have a high level of additional training and experience together with a clear understanding of [V’s] identified communication difficulties”, and that V’s needs were “well understood and supported”.
12. Mr P then submitted a second complaint in May. He said the Council had not explained the reason for the failure to provide the required SALT, and nor had it provided a resolution.
13. The Council responded a few days later. It reiterated the impact of the lack of capacity at the NHS, but noted the NHS had now offered Mr P a virtual review meeting, which he had declined. The Council said virtual reviews and assessments were now common in the NHS because of the impact of the COVID-19 pandemic and resource problems. The Council said it considered this was an appropriate solution to the problem, because V was attending a specialist unit with highly-trained staff.
14. Mr P then referred his complaint to the Ombudsman.

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Legislative background

15. A child with special educational needs may have an education, health and care plan. This sets out the child’s needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place.

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Analysis

16. I asked the Council to confirm exactly how many of the sessions set out in V’s EHC plan had been missed. It responded to say that, when Mr P made his complaint to the Ombudsman, the spring term session had been missed and a date for the summer term had not yet been set. It commented that the NHS had offered Mr P a virtual review session for May, but he had declined this, and consequently the summer term session had also been missed.
17. The Council went on to say that V would have a review of his communication needs on 18 September, which I infer to be the 60-minute annual session required by the plan. As it is due to take place after the start of the 2023/24 school year, this appears to mean it is technically late; although I appreciate it is only the very beginning of the new year and so this does not appear to represent a significant delay.
18. I note the Council says the missed sessions have been because of a lack of capacity in the NHS, its SALT provider. I asked it whether, therefore, it had considered seeking an alternative provider to cover the sessions; but the Council said it had not, because it was satisfied the NHS’s suggestion of a virtual review was appropriate. The Council also said it had held a virtual meeting with Mr P in June, during which it explained how he could request a personal budget (to allow him to source his own therapist), but he had not done so since the meeting.
19. I also asked the Council how it had ensured itself V was receiving adequate speech and language support, even without the review sessions. The Council responded:

“The Local Authority contacted [the school] on 24.02.2023, during the telephone communication the Local Authority were assured by [the] Assistant Headteacher/SENCO [special educational needs co-ordinator] that that as a school with the Specialist ASD Unit they had a good understanding of [V’s] identified special educational needs, in particular those relating to communication and interaction. The school advised that [V] was working well towards the agreed outcomes in his EHC plan and the provision provided in a specialist unit were appropriate to meet his needs.

“The annual review report received from school notes in that [V] is using spoken language to communicate and he is now able to follow 2 part instructions with minimal support. He is developing his play skills and will engage and play alongside peers...

“In the summer term of 2023, at the time of the annual review it was agreed that [V] is working at expected levels for word reading, writing, comprehension, number and numerical patterns…

“Therefore, the Local Authority is confident that [V] is well-supported and achieving good academic outcomes.”

20. The law says councils have a duty to secure provision set out in an EHC plan. Therefore, although I understand the Council has no control over NHS availability, it remains responsible for the fact some of V’s review sessions have been missed.
21. However, I find the Council’s argument persuasive, that the virtual session offered by the NHS was an adequate substitute for a face-to-face review meeting. I appreciate Mr P does not agree with this, but given this was for a relatively short meeting between V’s parents and professionals, I do not consider the purpose of the meeting could reasonably have been compromised simply because of its virtual setting.
22. I am also persuaded by the evidence the Council has provided, showing V is well-supported in school, despite the missed review sessions. I acknowledge Mr P’s fears about V falling behind his peers, but given the purpose of these sessions is only to review V’s needs and progress, and not to provide substantive therapy or teaching, I consider it speculative to suggest this could have had a significant impact on V so far.
23. This is not to say the review sessions have no purpose, and clearly it is important they occur as scheduled going forward. However, I do not consider there is any evidence to show V has suffered a significant detriment because of two missed termly reviews and one slightly late annual review.
24. Taking these points together, I find fault by the Council because it did not secure the SALT review sessions, as required by law; but under the circumstances I do not consider this can be said to have caused a significant injustice.

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Final decision

25. I have completed my investigation with a finding of fault which did not cause injustice.

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Investigator's decision on behalf of the Ombudsman