Summary: Ms X complained the Council failed to secure the speech and language therapy in her child, W’s, Education, Health and Care Plan. The Council was not at fault. However, it was at fault for failing to respond to Ms X’s complaints properly. This caused Ms X avoidable frustration, for which the Council should apologise and pay her £100.

The complaint

1. Ms X complained the Council failed to secure the Speech and Language Therapy in her child, W’s, Education, Health and Care Plan.

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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. 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)
3. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6).
4. The Council has not issued a final response to Ms X’s complaint. However, for the reasons I set out at paragraphs 39 and 40, I consider the Council has had ample opportunity to respond to Ms X’s complaint so it would not be reasonable to give it further time.

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How I considered this complaint

5. I have considered:
• all the information Ms X provided and discussed the complaint with her;
• evidence from W’s school;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
6. 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

Relevant law and guidance

Special educational needs

7. 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 which include section F: the special educational provision needed by the child or the young person. 
8. The council has a duty to “secure” the special educational provision set out in section F of a child or young person’s EHC Plan (Section 42 Children and Families Act). Councils can secure that special educational provision by asking schools and other organisations to provide it to the child or young person using their own budgets.
9. 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 when there is a change in educational placement; 
• check the provision at least annually during the EHC Plan annual review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement. Parents and young people can appeal the special educational provision in a child or young person’s EHC Plan. The appeal right arises when the council issues a final EHC Plan.

Complaints

11. The Council has a two stage complaints procedure. Its policy says it will respond to stage one complaints within 20 working days.

What happened

12. This section sets out the key events in this case and is not intended to be a detailed chronology.
13. Ms X’s child, W, attends a specialist school which has staff trained in speech and language therapy (SALT) strategies and a speech and language therapist available. In the mid-2010’s, W began receiving NHS SALT input.
14. W has an EHC Plan. W’s EHC Plan from 2017 stated they needed the following SALT related provision, to be delivered by school staff:

• Opportunities to develop exploratory and physical play;
• Use of play techniques to model naturalistic play;
• Strategies to help W understand their routine and understand cause and effect;
• Activities designed by a SALT to improve W’s understanding of words and sentences;
• Encouragement and support to interact with their peers; and

15. The EHC Plan also said the NHS SALT would provide information for the EHC Plan annual review process.
16. In 2022, the Council issued a draft EHC Plan which included significantly more extensive SALT provision, much of which was to be delivered by the NHS SALT service. This included one-to-one sessions with a SALT three days a week. The Council did not finalise the Plan.
17. In January 2023 W was discharged from the NHS SALT service. Their discharge letter noted school staff should use the advice and strategies the speech and language therapist had been using with W, to continue their development.
18. The Council issued a new EHC Plan for W in late July 2023. It contained less SALT provision than the 2022 draft and removed reference to an NHS SALT. It said W’s one-to-one sessions would now be with a trained member of school staff, not a SALT. The Plan still said a SALT would provide information for the EHC annual review process.
19. Ms X had the right to appeal to the SEND Tribunal to change the provision if she felt it was unsuitable. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
20. In October 2023, W’s school wrote to the Council. It said it did not agree with W’s discharge. It felt W’s needs meant they needed specialist SALT from the NHS and said the speech and language therapist it employed was not intended to be a replacement for the NHS therapist.
21. W began receiving a total of one hour of SALT provision from the school speech and language therapist per week.
22. The Council issued a new EHC Plan for W in mid-July 2024. The SALT provision remained unchanged in the Plan. Ms X appealed that Plan to the SEND Tribunal.
23. W’s school told me W’s July 2023 EHC Plan stated direct input from a speech and language therapist. It said its staff are trained in SALT strategies and deliver that support as part of its standard provision as a specialist school. But it said when a child has access to a speech and language therapist set out in their EHC Plan, that is individual provision for that child, which it cannot provide.
24. The school noted that because Ms X did not agree with the SALT provision in W’s EHC Plan, it does not feel it has an agreed understanding between the school and the parent of W’s needs. It also does not have an up-to-date NHS SALT plan because of W’s discharge. Therefore, the school said it cannot meet W’s individual needs.

Complaints

25. In early 2023, Ms X complained to the Council about W’s discharge and lack of SALT provision. The Council responded to that complaint.
26. In October 2023 and early January 2024, Ms X sent the Council further letters setting out she was unhappy W had been discharged from the NHS and was no longer receiving direct SALT, alongside other issues relating to W and her other children.
27. Ms X sent the Council another complaint in late January 2024. She said that W had not received any SALT for the past year and this was impacting W’s mental health.
28. Ms X submitted further complaints to the Council in April and May 2024. She included some new issues and set out concerns relating to her other children. Ms X also repeatedly said she was unhappy about W’s SALT provision.
29. Ms X complained to the Ombudsman in May 2024.
30. The Council responded to Ms X’s late January, April and May 2024 complaints at stage two of its complaints procedure in early July 2024.
31. Two weeks later, the Council identified the stage two response it sent in early July should have been a stage one response and reissued it at stage one.
32. In response to a recent investigation, the Council agreed to remind officers responding to complaints of the need to respond within its published timescales.

Findings

Speech and language therapy

33. The Council has a duty to secure the special educational provision a child’s EHC Plan. We accept councils cannot have ongoing oversight of the delivery of a child’s provision day-to-day so we expect them to act when they become aware a child is not receiving the special educational provision in their EHC Plan.
34. When W was discharged, the Council assumed W’s school would be able to deliver the SALT in their EHC Plan. That was an understandable assumption to make given W attended a specialist school which had a SALT available to support students and staff trained in SALT strategies.
35. W’s school said W’s EHC Plan stated they need speech and language therapy, which the NHS or Council should provide, as it is outside the scope of what the school can arrange. It also said W’s EHC Plan said they need direct input from a speech and language therapist, which it cannot provide.
36. However, when W was discharged from the NHS SALT service, their 2017 EHC Plan was in force, not the 2022 draft which contained substantially more SALT provision. In July 2023, the Council issued another EHC Plan for W, with less SALT provision than the 2022 draft. The 2017 and 2023 EHC Plans contained SALT provision to be delivered by trained staff on a daily basis, on the advice of a speech and language therapist. The NHS discharge report contained up to date advice from the NHS therapist for staff to use. There was no provision in W’s EHC 2017 or 2023 Plans for ongoing direct involvement from a speech and language therapist other than to provide information for the EHC Plan annual review process, once per year. This level of input is minimal and could reasonably be provided by the school’s therapist.
37. I have seen no evidence to indicate the Council heard W’s school was unable to deliver the lower-level provision in their 2017 and 2023 EHC Plans. Therefore, the Council had no evidence that W was missing out on the special educational provision in their EHC Plans and was not at fault.
38. Ms X and W’s school feel the NHS should not have discharged W and have detailed their view that W has significant SALT needs which need direct SALT input from a specialist therapist. However, as noted above, the Council only had to secure the provision in W’s 2017 and 2023 EHC Plans. If Ms X and W’s school felt W needed a higher level of SALT provision in their EHC Plan, it was reasonable for Ms X to appeal the 2023 Plan to the SEND Tribunal to change the Plan’s contents. Ms X is currently appealing the 2024 Plan to the SEND Tribunal. She can seek additional provision as part of that process.

Complaints

39. After making a complaint in early 2023, Ms X sent letters in October 2023 and early January 2024 where she reiterated her unhappiness with the lack of SALT for W alongside other issues. The Council should have responded to those letters. If the Council felt it had already answered some parts of Ms X’s complaints, it should have explained so and set out what it would and would not investigate. The Council’s failure to do this was fault.
40. Once the Council accepted Ms X’s late January 2024 complaint, it failed to respond to that complaint within its timescales. The Council sent its response in early July 2024, almost five months late. This was fault.
41. Finally, when the Council did issue its response to Ms X’s late January, April and May 2024 complaints, it incorrectly issued it as a stage two response, when it should have been a stage one. This poor complaint handling was further fault. The faults set out in this section caused Ms X avoidable frustration.
42. The Council has recently agreed to remind officers to respond to complaints within the published timescale, so I have not made a further recommendation.

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Agreed action

43. Within one month of the date of my final decision, the Council will complete the following actions.
1. Apologise to Ms X for the frustration she felt as a result of its poor complaint handling. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Ms X £100 in recognition of that frustration.
44. The Council will provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman