Summary: The Council was at fault because it failed to ensure Y received speech and language therapy in line with his Education, Health and Care Plan. This caused a loss of special educational provision, avoidable distress and time and trouble complaining. The Council will apologise and make payments of £100 and £200.

The complaint

1. Ms X complained the Council failed to ensure her child Y received the speech and language therapy set out in his Education, Health and Care (EHC) Plan. This caused a loss of special educational provision and avoidable distress.

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The Ombudsman’s role and powers

2. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
3. The Council uses Provide Wellbeing to deliver speech and language therapy services for children with special educational needs (SEN) who have EHC Plans. We can investigate it.
4. 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)
5. 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)
6. 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

7. I considered the complaint to us, the Council’s complaint response and documents set out later in this statement.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

9. 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. Section F sets out the special educational provision the child needs.

10. 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 2014). 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)
11. 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

12. Y has an EHC Plan which the Council issued in November 2022. Section F says he will receive the following speech and language therapy (SLT) provision:
• 12 hours of direct support that may include direct intervention with Y and a member of school staff to model, review targets, assessments and observations, liaising with parents, delivering staff training.
• 3.5 hours of indirect support to include care plan writing (one plan a term) and writing of report for annual review.
• Total SLT therapy hours: 15.5.
13. Ms X complained to the Council in March 2024 raising the same issues as in her complaint to us. The Council responded in April saying it commissioned ‘Provide’ for its SLT service; Y’s case had been raised directly with Provide and sent to its customer service department for their attention and a therapist would be contacting Y’s school for a review. The Council said this was its final response and Ms X should contact the us if she remained unhappy.
14. Ms X complained to us in June 2024. At that time, she said Y had not been seen by a therapist since December 2023 and had no care plans since June 2023. She also said neither Provide nor the Council’s SEND Team replied to her messages.
15. Since Ms X’s complaint to us, a therapist from Provide has delivered some SLT hours for Y (over the summer holidays). Ms X pointed out that the hours were supposed to be spread out over the school year and there was no report for the annual review or care plans for two school terms last year (Spring and Summer).

Findings

16. The Council was at fault.
17. It is obliged under Section 42 of the Children and Families Act 2014 to secure the provision in Section F of Y’s EHC Plan. In Y’s case, this is 15 hours a year of input from a speech and language therapist from Provide. The Council did not secure Y’s SLT provision. And, when this was brought to its attention by Ms X’s complaint, it responded by saying Provide would be in touch with her. This is not in line with what we expect of councils when a parent raises concerns about non-delivery of provision on an EHC Plan as I have described in paragraph 11.
18. The Council retains responsibility for ensuring provision on an EHC Plan is being delivered as well as for ensuring complaint responses fully address the issues raised. This includes making sure a commissioned provider has taken action to address concerns a parent has raised through the formal complaint process.
19. As a consequence, Y has missed out on having SLT sessions during the last school year. And although Provide has delivered sessions, it has not delivered the remaining two hours specified in Section F or done any of the three and a half hours of the indirect support (liaison, care planning or report writing) also set out on the Plan.

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Agreed action

20. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with ‘Provide’ I have made recommendations to the Council.
21. The Council will, within one month:
• Apologise to Ms X and pay her £100 to reflect her avoidable distress and time and trouble.
• Make an additional payment of £200 to reflect the SLT direct and indirect provision Y has not had.
• Ensure all the SLT provision in Y’s EHC Plan is in place and being delivered.
• Share this statement with council staff responsible for drafting complaint responses so they are made aware of what we expect when complaint handlers are dealing with complaints about commissioned services.
• Give Ms X named contacts in the SEND team and at Provide Wellbeing so she can liaise directly should any problems arise in future.
22. The Council should provide us with evidence it has complied with the actions in paragraph 21.

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Final decision

23. The Council is at fault because it failed to ensure Y received speech and language therapy on his Education, Health and Care Plan. This caused a loss of special educational provision, avoidable distress and time and trouble complaining. The Council will apologise and make payments of £100 (to Ms X) and £200 (to reflect Y’s missing educational provision)
24. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman