The Ombudsman's final decision
Summary: Mrs X complained about how the Council handled its provision of Speech and Language Therapy for her son, Y, and its delay in updating his Education, Health and Care Plan (EHCP). We find the Council at fault for delay in issuing a final EHCP. It has agreed to apologise to Mrs X, pay her £300 and act to prevent recurrence.
The complaint
Mrs X complains the Council: Provided direct Speech and Language Therapy (SALT) support to her son (Y) and then stopped this, without telling her. Mrs X says this caused her distress.
Delayed in putting direct SALT in place for Y. Mrs X says this left Y without any direct support and she worries how it will impact his education.
Delayed updating Y’ s Education, Health and Care Plan (EHCP) with details of the direct SALT provision detailed in a therapist’s report, despite telling her it would do so. Mrs X says this caused her undue distress and frustration in chasing the Council to resolve the matter.
The Ombudsman’s role and powers
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) We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
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)
How I considered this complaint
I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
Relevant law and statutory guidance A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. Councils have a duty to ensure the special educational provision set out in an EHCP is arranged. (Children and Families Act 2014 section 42) The Ombudsman cannot look at complaints about what is in the EHCP but can look at other matters, such as where support set out in an EHCP has not been provided or where there have been delays in the process.
EHCP Annual Reviews A council should review an EHCP at least every 12 months.
Within two weeks of an EHCP review meeting the school must provide a report to the council with any recommended amendments.
Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views on the content.
When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
Where the council does not agree the suggested changes, it may still issue the final EHCP.
In any event the council should issue a final EHCP to the parent and any school named within eight weeks of issuing the amendment notice. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.
What happened Y has an EHCP. Section F of Y’s EHCP of January 2020 included: SALT target setting by a SALT therapist, and Implementation of a SALT programme by a suitably trained member of school staff on a daily basis, reviewed and updated according to Y’s needs by a SALT therapist.
Mrs X wanted Y to have direct SALT with a SALT therapist.
In May 2021 the Council agreed to commission an independent SALT provider to review Y’s speech and language needs. The provider found Y needed one hour per week of direct SALT from a SALT therapist.
An annual review of Y’s EHCP took place on 25 May 2021. The annual review documents provided by the Council show Mrs X asked for amendments to the plan based on the SALT assessment.
The Council confirmed to Mrs X on 22 June it had received the SALT report and a new member of staff, starting the following week, would update Y’s EHCP.
Mrs X asked for a timeframe for the updates and when a panel would review for funding approval. The Council replied saying it did not need panel approval and it would update the EHCP as soon as possible. Mrs X says the Council told her it wanted to see if other services could support Y, before agreeing to fund the SALT.
Internal emails from the Council show it contacted Y’s school in August. It said it was working on updating Y’s EHCP. It asked the school if it was using a SALT therapist who could give Y direct SALT support, until the Council’s contracted SALT provider was ‘up and running’.
The school confirmed the Council already provided funding for the therapist that had produced Y’s SALT report to come into the school and provide some direct SALT support. It said the therapist would hopefully support Y too and asked the Council for clarification if it would fund the support directly.
The Council asked again that the school use its direct SALT therapist for Y until it could arrange provision.
Mrs X did not receive an amendment notice, draft or final EHCP from the annual review and had no confirmation of any direct SALT support. However, Y’s school emailed her in September confirming the Council had agreed funding for Y to receive direct SALT from a SALT therapist, starting on 20 September for one hour a week. This was in place until the Council’s contracted provider could take over the support.
Mrs X contacted the school in October to ask for an update on Y’s SALT sessions. It told her the Council queried the direct support and was looking at the funding again. The school confirmed Y’s SALT support was now on hold. Mrs X says the Council did not tell her this.
Mrs X complained to the Council about this in October. The Council’s response said it: has a contract in place with a SALT provider, which provides SALT to some schools within the area, including Y’s school. It is aware of ongoing discussions about the contract which is why the school was able to commission an independent therapist previously.
was in contact with the Council’s SALT provider to arrange a meeting with Mrs X, about what it can offer and when it can begin to provide support.
Unhappy with the Council’s response Mrs X asked for it to look at her complaint at stage 2. She complained about the lack of direct SALT support for Y and queried why the complaint was investigated by the officer who had cancelled Y’s independent direct SALT therapist provision.
The Council provided its stage 2 response in November. It said: Emails between the Council and the school did not say Y’s support was cancelled; they asked why the school was commissioning an independent provider and not using the Council’s contracted SALT provider.
It had now met with its SALT provider and instructed it to contact Y’s school to agree a timetable and ensure he receives the support outlined in the most recent SALT report.
Mrs X was unhappy with the Council’s stage 2 response and asked for it to consider her complaint at stage 3. She explained the Council had a duty to provide Y with SALT and neither she, nor Y’s school had received any communication from the Councils SALT service provider. Mrs X also complained the Council still commissioned the independent SALT therapist to provide SALT to another child at Y’s school.
In the meantime, Mrs X contacted the Council on 3 December to ask for a copy of Y’s amended EHCP from the annual review in May. She explained the school had not received a copy, and neither had she. She queried whether the updates, agreed back in June, were complete.
The Council responded and said it would ask Y’s school for a copy of the SALT report, update Y’s EHCP and send it to Mrs X by 17 December.
On 17 December the Council sent Mrs X a draft amended EHCP for Y, following the annual review in June 2021. Its covering letter explained Mrs X had 15 days to tell the Council if she agreed with the EHCP or provide comments about any changes.
Mrs X noted several faults with section F of the draft EHCP, including there was no mention of weekly direct SALT support, despite the SALT report stating this. The Council replied and said it would respond to Mrs X’s amendments when the officer was back from leave on 10 January 2022.
The Council responded to Mrs X’s stage 3 complaint in December. It said: It had a meeting with its service provider to discuss Y’s needs and confirmed the service provider would contact Y’s school to discuss when the sessions would begin.
It acknowledged Y’s identified support needed delivering but it needed to transfer to the Council’s contracted service provider.
It assumed other children at the school would also be transferring to its service provider.
Mrs X was unhappy with the Council’s response and brought her complaint to the Ombudsman.
Since bringing her complaint to us, information provided by the Council show its SALT provider contacted Y’s school in late December to reassess Y in January 2022 before offering SALT support. Mrs X declined this as Y was only assessed 8 months before.
Mrs X asked the Council to consider a personal budget for Y so she could arrange the SALT support herself. The Council declined this and provided Mrs X with another draft EHCP on 21 January 2022, which included the one hour of direct SALT provision, per week, for Y. Weekly direct SALT support for Y began on 3 March 2022.
When I spoke with Mrs X in April, she told me Y’s EHCP was still in draft format and was not finalised. At the time of receiving the Council’s response at the end of May, the EHCP was still to be finalised.
Analysis Provision and delay of SALT for Y There is no evidence the Council confirmed to Mrs Y that it would provide direct SALT to Y ahead of issuing a final EHCP. Rather, it appears the Council only suggested to the school that it may wish to use its existing direct provider to support Y until the Council’s own provider could take over. The Council did not commission the support or agree to fund it for Y. Also, there is no evidence the Council told the school to stop this support. I therefore find no fault by the Council. I acknowledge the school told Mrs Y the Council had agreed to fund SALT and that the school placed support on hold pending a Council query. However, I cannot look at what happens in schools. I have looked at the actions of the Council and my view that it is not at fault remains the same.
Delay in issuing an updated final EHCP The Council should have issued a final EHCP within 12 weeks of the annual review i.e., by the end of August, at the latest. The Council has not yet finalised Y’s EHCP. This is delay and is fault.
Mrs X has experienced distress and uncertainty due to the delay. This is injustice. I cannot say whether Y has missed direct SALT provision due to the Council’s delay, unless or until it is included in Y’s final EHCP. However, once the Council has issued the final EHCP it should consider if a further remedy is due for any delay in provision. If needed, Mrs X may return to the Ombudsman to consider a further remedy.
Because the reason for the Council’s delay may be systemic, it has agreed to a service improvement to prevent injustice to others.
Agreed actions
To remedy the fault set out above the Council has agreed to carry out the following actions.
Within one month of the date of my decision: Provide a written apology to Mrs X.
Pay Mrs X £300 for distress and uncertainty suffered.
Issue a final EHCP for Y.
Following issue of the final EHCP, consider whether any further remedy is due to Mrs X.
Within three months of the date of my decision: Identify the reasons for the delay in issuing the final EHCP, take action to prevent recurrence and inform us of the action taken.
Final decision
I have not found fault by the Council in the way it handled provision of SALT for Y. However, I have found the Council at fault for delays in issuing Y’s final EHCP. The Council has agreed to agree to take action to remedy the injustice as set out in this statement. This is a suitable outcome.
I intend to complete my investigation.
Investigator's decision on behalf of the Ombudsman