Summary: the Council failed to put in place the speech and language therapy sessions in Ms X’s son’s education, health and care plan. An apology, payment to Ms X, arrangements to put in place the provision and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, Ms X, complained the Council failed to put in place the speech and language therapy sessions included in her son’s education, health and care plan.
2. Ms X says missing out on sessions has led to a significant delay in her son’s progress.

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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)
5. 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

6. 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.
7. Ms X and the organisation 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

8. A child with special educational needs (SEN) may have an education, health and care plan (EHC Plan). This sets out the child’s needs and the arrangements that should be made to meet them.
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 9 direct sessions of speech and language therapy with 7.5 hours of indirect speech and language therapy provision.
11. Ms X contacted the Council in December 2023 to tell it her son had not received any of his speech and language therapy sessions. When the Council did not respond Ms X chased it in January 2024.
12. In January 2024 a further speech and language therapy report was produced for Ms X’s son. That proposed three direct sessions with Ms X’s son and three hours 45 minutes of indirect contacts.
13. Ms X put in a complaint in March 2024 raising concerns about the Council’s failure to put in place the speech and language therapy provision in her son’s EHC Plan. Ms X said the school had arranged three sessions per year which did not reflect the number of sessions in the EHC Plan.
14. When it responded to the complaint the Council said it had checked and Ms X’s son had received two direct and one indirect speech and language therapy contact during the academic year 2023/2024. The Council said the school and parents could also access drop-in sessions.
15. Ms X asked the Council to take her complaint to the next stage as she did not believe the Council had addressed the concerns she raised. When the Council responded to the complaint in May 2024 it apologised for the missing speech and language therapy sessions. The Council told Ms X it intended to provide the outstanding sessions by the end of the academic year. The Council said if that did not happen any sessions not provided would be delivered by the end of the calendar year.
16. In response to my enquiry the Council said Ms X’s son would receive the updated provision set out in the January 2024 speech and language therapy report. The Council said it intended to amend the EHC Plan following the annual review. However, in October 2024 the Council wrote to Ms X to say it did not intend to amend the EHC Plan.

Analysis

17. Ms X says the Council failed to put in place the speech and language therapy set out in her son’s EHC Plan. The evidence I have seen satisfies me Ms X’s son’s EHC Plan says he will receive 9 direct face-to-face speech and language therapy contacts and 7.5 hours of indirect speech and language therapy contacts each year. The Council has confirmed in the academic year 2023/2024 Ms X’s son received two direct contacts and two indirect contacts. The Council says though this reflects the provision outlined in a speech and language therapy report produced in January 2024.
18. As I say in paragraph 9, the Council has a responsibility to ensure the provision in a child’s EHC Plan is put into place. While Ms X’s son’s final EHC Plan says he will receive 9 direct face-to-face speech and language therapy contacts and 7.5 hours of indirect speech and language therapy contacts the Council is required to ensure that provision is in place. Failure to put that provision in place in the academic year 2023/24 is therefore fault. I am particularly concerned the Council failed to arrange the additional sessions given this is what it told Ms X it would do when she brought the missing provision to the Council’s attention. That is also fault.
19. I appreciate the Council is relying on a speech and language therapy report produced in January 2024 which shows a lower level of speech and language therapy provision for Ms X’s son. However, irrespective of what is included in that report the Council’s responsibility is to put in place the provision in Ms X’s son’s final EHC Plan. Only if the Council had amended that EHC Plan and issued a new final EHC Plan to include a reduced level of speech and language therapy provision would the Council be entitled to rely on that. As the Council has not amended and issued a revised final EHC Plan it remains responsible for ensuring the provision in the current final EHC Plan is in place. Failure to do that is fault.
20. That means Ms X’s son has missed out on 7 direct speech and language therapy sessions in the academic year 2023/24. Ms X’s son has also missed out on 5.5 hours of indirect speech and language therapy for the academic year 2023/24. That is a significant injustice.
21. As remedy for that I recommended the Council pay Ms X £600 to reflect the missing speech and language therapy and an additional £200 to reflect the frustration she has experienced, making a total payment of £800. I also recommended the Council ensures Ms X’s son receives the speech and language therapy provision set out in his EHC Plan going forwards until such time as the Council amends the EHC Plan. The Council should also send a reminder to officers about the need to ensure the provision in an EHC Plan is in place if concerns are raised and that the provision cannot be changed without issuing a further, revised final EHC Plan. The Council has agreed to my recommendations.

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Action

22. Within one month of my decision the Council should:
• apologise to Ms X for the distress and upset 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 £800;
• put in place the speech and language therapy set out in the EHC Plan; and
• remind officers dealing with EHC Plans of the need to ensure the provision in a final EHC Plan is in place when concerns are raised and that the provision cannot be changed without amending and issuing a final EHC Plan.
23. The Council should provide us with evidence it has complied with the above actions.

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Final decision

24. 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