Summary: Dr P complained about the Council’s failure to provide Speech and Language Therapy as set out in her child’s Education, Health and Support (EHC) Plan and related matters. We found the Council to be at fault. It did not provide enough therapy and took too long to advise Dr P of its intention to amend the EHC Plan. This caused Dr P distress and uncertainty. To remedy this injustice and the impact of the missed provision, the Council has agreed to apologise, make a payment to Dr P and take action to improve its service.

The complaint

1. Dr P complains about the Council’s failure to ensure her son, Y, received the quantity of Speech and Language Therapy (SALT) set out in section F of his EHC Plan between September 2022 and April 2023.
2. She says as a result, Y demonstrated communication difficulties because he relies on SALT input to help him understand how to pronounce words. Dr P says his pronunciation notably declined during the period of lost provision. This affected him socially as well as academically.

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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 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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).
6. 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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What I have and have not investigated

7. We expect people to make a complaint to us within a year of them thinking there may have been some fault by the Council. Therefore, the restriction outlined in paragraph 4 applies to part of this complaint. Dr P complains about events that took place in 2022/23. The Ombudsman has discretion and can disapply this rule if there are good reasons. I have decided to exercise discretion in this case because Dr P made timely complaint to the Council but was incorrectly signposted by another organisation to a different Ombudsman’s service. Dr P should not be penalised for this mistake.
8. Dr P is also dissatisfied with lack of SALT since May 2023, and this is the subject on an ongoing complaint the Council.
9. For these reasons, I am investigating what happened between September 2022 and April 2023.

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How I considered this complaint

10. I spoke to Dr P and considered the information she provided.
11. I made enquiries of the Council and considered its response and case records.
12. I reviewed the relevant law and guidance.
13. Dr P and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

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What I found

Relevant law and policy

Education, Health and Care Plans

14. 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 what arrangements should be made to meet them.
15. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

16. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

Failure to secure provision

17. Councils have a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act 2014). The courts have said this duty to arrange provision is owed personally to the child and is non-delegable.

Annual reviews

18. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
19. The school (or, for children and young people attending another institution, the local authority) must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting. (SEN Code paragraph 9.176) 
20. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan.
21. The council must issue the amended EHC Plan within eight weeks of the original amendment notice.

What happened

22. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
23. Dr P’s son, Y has SEN and an EHC Plan. In May 2022, an annual review was held at Y’s school. In attendance was Y’s speech and language therapist (the Therapist) employed by a private provider (the Provider). Y’s EHC Plan at the time specified Y should receive 24 hours of SALT per academic year. This was made up six hours of direct SALT per term (delivered virtually or face to face) and 2 hours of non-direct support per term to cover time spent writing reports and annual review attendance.
24. Dr P says the Therapist gave no indication during the annual review that Y’s SALT should be reduced, nor did she submit a report for consideration at the meeting.
25. In September 2022, the Council notified Dr P of its intention to amend Y’s EHC Plan. The draft amended plan reduced the amount of SALT.
26. Dr P objected to this. The Council explained the reduction was in response to a report (the Report) from the Therapist recommending a reduction in SALT. This was sent to the Council in August 2022. Dr P noted the Report was written by the Therapist two days before the annual review in held in March 2022, but not signed off by the Provider until July 2022.
27. Dr P made a formal complaint about this reduction in January 2023. She also complained Y had not received any direct SALT since September 2022. She had only just become aware of this.
28. In response, the Council accepted the intended reduction should have been discussed at the March 2022 annual review and agreed Y should continue to receive 24 hours of SALT until the matter was reconsidered at Y’s next annual review.
29. Dr P remained dissatisfied because the Council failed to apologise or address Y’s lack of SALT since September. This led to Dr P’s complaint to the Ombudsman.
30. In response to my enquiries, the Council said:
1. the Provider’s records show there was a shortfall of 2 hours and 25 minutes of SALT over the 2022/2023 academic year; and
2. it would compensate Dr P for this loss of provision. This would be approximately £150 (based on compensation paid to Dr P for more recent lost provision).

Analysis

31. Councils have a legal duty to ensure SEN support set out in Section F of the EHC Plan is provided and to meet statutory timescales. The Council failed to do both in this case.

Delay in the EHC Plan process

32. The law says councils must issue a notice of amendment within four weeks from the date of the annual review. In this case it took four months. This delay was fault. I am satisfied this caused an injustice because it came as an unwelcome shock when the Dr P was notified of the Council’s intention to reduce Y’s SALT provision when it was not mentioned at the review. This distress requires a remedy.

Missed SALT

33. The Council says there was a minimal shortfall of 2 hours and 25 minutes of lost provision over the 2022/2023 academic year. This is based on information submitted by the Provider and shared with the Ombudsman. In reaching this conclusion, the Council has included non-direct support in its calculation. It should not have done so because provision had to be what is set out in the EHC Plan. It should not have included several hours of time spent by the Provider on indirect therapy, report writing and responding to queries by Dr P and the Council.
34. The Provider’s information provides a breakdown of the type of support that was delivered. Y’s EHC Plan specified he should 6 hours of direct support per term.
35. For the autumn and spring terms, the Provider’s records show Y only received two hours and 20 minutes of direct support.
36. After Dr P brought the matter to the Council’s attention, Y received 7 hours of direct support during the summer term 2023. This was additional one hour of direct support for that term, presumably to make up the previous shortfall.
37. My conclusion is the Council acted with fault by not providing enough direct support to Y between September 2022 and April 2023.
38. I also find the Council failed to properly address Dr P’s concerns raised in her complaint. She told the Council that she had become aware that SALT had not been provided since September 2022, but this was ignored by the Council in its complaint response. This lack of acknowledgement of a significant issue caused further frustration to Dr P. This injustice requires a remedy.

Remedy calculation

39. As set out in our Guidance on Remedies, where we find fault has resulted in loss of educational provision (for example where a child is out of school), we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. Where there has been a loss of other provision, such as SALT, the level of financial remedy is likely to be lower than that for loss of educational provision. We consider the level of provision missed and the impact of this on the child.
40. In deciding an appropriate financial payment to recognise the impact of Y’s missed SALT provision, I considered the following.

• Y received some support from a SALT therapist during 2022/2023, and support from school staff that were guided by indirect support. However, Y did not receive most of the direct SALT provision the Council had agreed was necessary for him. According to Dr P, the lack of necessary SALT had a significant impact on Y’s ability to communicate and to access their education and social life. I have no reason to question her assessment as being accurate.
• An additional one hour of direct SALT was provided the following term.

41. Based on this, I consider a remedy of £400 for the two terms of missed SALT to be suitable.
42. For injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred.

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Agreed action

43. Within for weeks from the date of my final decision, the Council has agreed to take the following action.
1. Apologise in writing to Dr P.
2. Pay Dr P £800. This is to acknowledge the injustice caused by the failure to provide SALT as detailed above.
3. Pay Dr P £300. This is to acknowledge her distress, frustration, time and trouble caused by the delay issuing a notice of amendment and failure to address her complaint about loss of provision from September 2022.
4. Review its procedures to ensure actions required after an annual review are carried out within the legal timeframe.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I find fault causing injustice. The Council has agreed to action my recommendations to remedy the personal injustice and improve its service. On this basis, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman