Brighton & Hove City Council (16 015 449)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 15 Aug 2017

The Ombudsman's final decision:

Summary: The Council was at fault in delaying transferring Mr X’s daughter from a Learning Difficulty Assessment to an Education Health and Care Plan. It also failed to ensure some provision was made. The Council has agreed to make a payment to make up for the speech and language therapy sessions she missed as a result. It will review its contracts with further education colleges to ensure provision is put in place. This is a satisfactory remedy.

The complaint

  1. The complainant, referred to here as Mr X, complained that the Council:
      1. delayed unreasonably in assessing his daughter’s special educational needs and issuing an Education Health and Care Plan;
      2. failed to ensure that speech and language provision was arranged in time after issuing the final Plan; and
      3. failed to communicate with him and his wife properly during the process.
  2. As a result he says his daughter missed out on speech and language therapy for around a year.

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The Ombudsman’s role and powers

  1. 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)
  2. If we are satisfied with a council’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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How I considered this complaint

  1. I discussed the complaint with Mr X and considered the information he provided. I considered the information the Council provided in response to my enquiries. I had a telephone discussion with the Head of Special Educational Needs. I considered relevant law and guidance. I shared my draft decision with the Council and the complainant and considered their responses.

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What I found

  1. Before September 2014 councils had a duty to arrange for a Learning Difficulty Assessment (LDA) to be carried out for all young people with a statement of special educational needs who they expected to leave school between the ages of 16 and 19 and go on to further or higher education or training. The resulting plan named the proposed placement and set out the support the young person would need. Councils did not have a legal duty to ensure provision under a LDA was arranged as they did with statements of special educational needs.
  2. The Children and Families Act 2014 introduced a new system of assessing and providing for the needs of children and young people with special educational needs and disabilities up to the age of 25 from 1 September 2014. Under this scheme Education, Health and Care Plans (EHC Plans) replaced statements of special educational needs and Learning Difficulty Assessments.
  3. Local authorities must secure the special educational provision for the child or young person that is set out in the EHC Plan. (Children and Families Act 2014 section 42)
  4. Schools and colleges are required to put in place the provision set out in an EHC Plan on a day to day basis. However councils have the ultimate binding legal duty to ensure the special educational provision in an EHC Plan is delivered. Councils may expect a school or college named in the EHC Plan to do this, but if this does not happen, the council must step in and provide the special educational provision. In R v London Borough of Harrow ex parte M [1997] a council argued that because it had made a request to a health authority to arrange provision, it had fulfilled its own duty. The Judge disagreed and ruled the council’s duty is owed personally to the child and is non delegable.
  5. The Government issued statutory Guidance for local authorities on transitional arrangements for transferring to the new scheme in August 2014. (‘Transition to the new 0 to 25 special educational needs and disability system Statutory guidance for local authorities and organisations providing services to children and young people with SEN’)
  6. Local authorities had to have a transition plan for converting all existing Learning Difficulty Assessments to EHC Plans by 1 September 2016. But if a young person with a LDA, or their parent, requested an Education Health and Care assessment before then and they needed an EHC Plan the council had a duty to issue one. The same timescales for responding to the request and issuing an EHC Plan apply as with new cases.
  7. The timescales are set out in the ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’:
    • Local authorities must give a decision in response to a request for an EHC needs assessment within a maximum of 6 weeks.
    • The whole process of assessing EHC needs and developing a Plan, from the date of the request until the final EHC Plan is issued, must take no more than 20 weeks (with certain exceptions). (Where the transfer started before September 2015, the period was from 14 weeks)

What happened

  1. Mr and Mrs X have a daughter C, now aged 19. C has moderate learning difficulties, a visual impairment and a diagnosed speech disorder which means she has difficulties expressing and understanding language.
  2. Until she left school at the age of 16 C had a statement of special educational needs. Special educational provision included:
    • “a speech and language programme devised and monitored in consultation with a Speech and Language Therapist, to be carried out in specific communication sessions” as well as during everyday classroom activity; and
    • 30 minutes a week of direct speech and language therapy.
  3. When she transferred to a further education college (‘the College’) at 16 in 2013, C had Learning Difficulty Assessment which resulted in a Moving On Plan. The Moving On Plan said C “would benefit from specific communication sessions and extra support with numeracy and literacy incorporated into her curriculum”. Provision included “input, monitoring and advice from the Speech and Language Therapy service”. Mr X says the College did not provide any direct speech and language therapy as it did not have the funds.
  4. In early December 2014, after hearing about Education Health and Care Plans, Mr and Mrs X asked the Council for an assessment for their daughter.
  5. By April 2015 the Council had not responded. Mr and Mrs X contacted the Council to ask what was happening and point out that the College would be closing for the summer soon. (C was on a foundation course and had a short academic year). The Council then arranged an Educational Psychology assessment and said the case would go to the panel in May to decide whether to do a statutory assessment.
  6. Mr X says they heard no more about the assessment and when they contacted the Council they were told the caseworker dealing with their case had left the Council. The next member of staff appointed went on long-term sick leave.
  7. My understanding is that no progress was made until a new caseworker was allocated. The Council agreed to carry out a statutory assessment and issue an EHC Plan. It issued the draft EHC Plan in the autumn of 2015 and the final Plan in March 2016.
  8. The EHC Plan addressed C’s speech and language needs as follows.
    • It said C “has a diagnosis of oral dyspraxia which has a significant impact on her ability to communicate effectively and confidently”.
    • The objective was for C to “continue to develop her speech and language communication skills”.
    • The special education provision was for a speech and language programme, to be developed with an external therapist working with the College. It was to be delivered weekly by teaching and support staff at the College, through small group work and occasional 1:1 support.
    • There would be regular monitoring and adjustment of speech and language targets.
    • It also set out strategies for all staff to use in helping her communicate.
  9. In early September 2015, before it issued the final EHC Plan, the Council made a referral to the Speech and Language Therapy (SALT) service for 1:1 therapy for C in line with the parents’ request. A Speech and Language Therapist had a meeting with the College in October 2015 to discuss a proposed schedule for therapy sessions for students who had this provision included in their EHC Plans. This did not result in any direct speech and language therapy sessions for C at this time. Her first session with the Therapist took place in October 2016. I discuss the reasons for this lack of provision in paragraphs 26 and 36-38 below.
  10. In July 2016 Mr X made a complaint about delay in producing the EHC Plan. He also complained about the changes of staff and poor communication. He said it had been left to him and his wife to chase the Council and they did not know what was happening. They said the provision set out in their daughter’s EHC Plans had not yet been put in place. He was not happy with the Council’s response and wrote back to the Council saying the speech and language therapy could have been in place for September 2015 if the Council had not delayed.
  11. In its two responses at stage 1 of the complaint procedure the Council:
    • acknowledged and apologised for the lengthy delay in issuing the EHC Plan,
    • accepted it should not have left Mr and Mrs X in the dark about who was dealing with their case
    • at first said C had received appropriate support through her Moving On Plan
    • then said it would follow up with the College what provision had been put in place and advised the parents to raise the matter with the College as well.
  12. Mr X pursued the complaint further as he said the therapy had still not been put in place and he wanted the Council to make up for a year of missed provision.
  13. He also contacted the Council in August and September 2016 to ask it to find out what speech and language therapy provision would be put in place for his daughter when term started in September 2016. The Council contacted the College at least three times but did not receive a reply.
  14. As part of the investigation into Mr X’s complaint the Council contacted the Speech and Language Therapist in early October 2016 to ask what therapy she had provided to C over the past year. The Therapist said that following her discussion with the College in October 2015 about a proposed schedule, she identified two possible times for sessions for C. She said she carried out observations of C in class in December 2015. She said:

“The sessions I offered were not taken up, I understand [C’s] parents felt it was not appropriate for [her] to come out of lessons for speech and language therapy sessions, and there was discussion about changing transport arrangements so that speech and language therapy sessions could take place after timetabled sessions finished for the day but I understand satisfactory arrangements could not be identified.”

“I did not commence direct work with [C] for these reasons. I did, however, carry out observations and review case files in preparation for sessions, and provided some indirect input through recommending specific communication strategies to tutors working directly with [C]”

  1. The Council sent Mr X its stage 2 response to his complaint in November 2016. It acknowledged and apologised again for delays in issuing the EHC Plan. It said this was partly a result of high staff turnover and sickness and the time taken to implement new processes. However it said the delay had not adversely affected his daughter as the College had received funding for her as a ‘high needs learner’ and had provided education and support for her under her Moving Plan during this time. The Council reported back what it had learned from the Therapist about what had happened in the autumn term in 2015. The letter said “I have been told that college staff then attempted to arrange speech and language therapy outside of timetabled sessions (by changing transport arrangements) but an agreement could not be reached with you.” It said it understood C had now started receiving the therapy.
  2. Mr X has confirmed that speech and language therapy sessions started in October 2016 with five or six sessions during the rest of the term.
  3. At the end of November 2016 the College told Mr X that the company providing the speech and language therapy had not managed to recruit another member of staff. This meant it would not be able to provide the next block of direct therapy sessions for his daughter until after the February half term in 2017. It said it would still be able to provide one session a week for C with College staff who would liaise with the Therapist where necessary.
  4. Mr X told the Council about this gap in provision. The Council says it received an assurance from the College that it would arrange the therapy sessions in the new year. However there is no evidence the Council followed this up or took action to ensure the therapy was provided. The sessions started again in February 2017. Mr X says they have been running smoothly since then and he is happy with what is being provided.

Analysis – was there fault causing injustice?

  1. Mr and Mrs X asked for an EHC assessment in early December 2014. The Council should have responded to the request within six weeks. It is likely the Council would have agreed to an assessment then as it did so when it considered the matter later. So it should have started the process in mid-January 2015. Under the law and guidance operating at the time it should have completed the process in 14 weeks. This was later changed to 20 weeks. Even if the timetable was 20 weeks the Council should have completed the assessment and issued a final EHC Plan by the end of April 2015. In fact it did not issue the final Plan until March 2016, almost a year later.
  2. The Council has a statutory duty to secure the special educational provision in the EHC Plan. If the Plan had been issued when it should have been, the Council would have come under this duty earlier. The delay was fault. The question for the Ombudsman is whether this fault caused an injustice to C.
  3. The Council has accepted there were lengthy delays and put this down to lack of available staff and difficulties in implementing new procedures. However it argues that C did not miss out on speech and language therapy because of this delay as she was receiving appropriate provision under her Moving On Plan during this time.
  4. I do not agree with this reasoning because the SALT provision in the EHC Plan is greater and more specific than in the Moving On Plan. Mr X says C did not receive any direct speech and language therapy under the Moving on Plan and I have not seen any evidence that she did. Since she has been receiving the SALT provision under the EHC Plan she has had two specific speech and language therapy sessions a week: one with the Therapist and one with a teaching assistant.
  5. It appears that the lack of a final EHC Plan did not prevent the Council making a referral to the SALT service and starting to arrange the provision. It made the referral in September 2015, six months before issuing the final Plan. However if the Plan had been in place when it should have been in April 2015, there would have been a whole term in which to carry out any necessary observations and assessments and ensure provision was arranged from the start of term in Sept 2015.
  6. As it was, there were steps taken in the autumn term in 2015 to try to set up the provision. It is not clear exactly what happened and why C did not receive it. The Council says the sessions did not take place because the parents did not agree the arrangements. Mr X disputes this. He accepts they did not want to withdraw C from lessons to attend the speech and language therapy sessions. Their view was that the provision should be in addition to C’s regular timetable not instead of it. They did not consider it appropriate for C to miss out on lessons, especially as she was not attending College full-time and the terms were short. In my view this is a reasonable position to take. Mr X says they were prepared to be flexible and would have agreed reluctantly to lunchtime sessions if that was all that was available. He says C would also have been able to attend on her non-college days. He also says he did not reject after-school sessions because of any difficulty arranging transport. He says his daughter was used to travelling independently and would not have needed the College or the Council to arrange transport. He denies he rejected any sessions offered to C.
  7. In saying that he did, the Council is relying on the email from the Therapist in October 2016. However the wording of the email shows this is based on the Therapist’s understanding of what happened, presumably taken from information provided by the College. It refers to discussions, but does not say Mr and Mrs X were involved in these discussions or what they were told. I understand the Special Educational Needs Co-ordinator at the College has changed and that none of the Council officers previously dealing with the case are still working for the Council. So it would be difficult to investigate this matter further. Given Mr X’s denial and in the absence of any clear evidence about what sessions were actually offered, I find on balance that the parents were not responsible for any lack of provision in the autumn term of 2015.
  8. From the information provided it seems the Council was not involved in any of the discussions about arranging the sessions at this time. If the EHC Plan had been issued in time, the Council would have been responsible for ensuring that the speech and language therapy provision was made.
  9. I have not seen any evidence of attempts by the Council to arrange SALT provision during the rest of the 2015-2016 academic year. College staff may have had some support from the Therapist but C did not receive any specific sessions. The sessions started in October 2016 under the EHC Plan and continued for the rest of the term. I have seen no evidence of any attempt by the Council to arrange provision when it stopped in January 2017. It started again in February 2017.
  10. The Council says once it issued the final EHC Plan it chased up the College to put the provision in place and this is what led to the sessions starting in October 2016. I am not recommending a remedy for loss of provision for the period September to October 2016.
  11. Overall C has missed out on speech and language therapy sessions she should have had if the EHC Plan had been issued in time for a total of three and a half terms:
    • three whole terms in the academic year September 2015 to June 2016, and
    • half of the spring term in 2017.
  12. Mr X has also had some unnecessary time and trouble in pursuing the provision and his complaint as the Council did not accept the delay had any adverse impact on his daughter.

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Agreed action

  1. I find that C has suffered an injustice as a result of fault by the Council. The Council has agreed to make up for the speech and language therapy C has lost by making a payment to Mr X of £300 per term. This is a total of £1,050. It should be used for the benefit of C’s education.
  2. The Council has also agreed to pay Mr X £50 to recognise his time and trouble in pursuing this complaint. This figure takes into account a payment recommended on a similar complaint he made at the same time about another child. The Council should make the payments within one month of the date of this decision.
  3. The Council says it has made improvements in the staffing and management of its SEN service so as to avoid the problems of delay in issuing EHC Plans for students aged 16-25 occurring in future. It has also agreed to review its contracts with further education colleges so that where they cannot provide the support required, the Council can recoup the costs of the provision and commission the support itself. The Council should report back to the Ombudsman on the action taken within the next three months.

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Final decision

  1. The Council was at fault in delaying the transfer to Mr X’s daughter’s EHC Plan and failing to ensure provision was made for a period after the Plan was in place. As a result C missed out on speech and language therapy she should have received. I am satisfied with the action taken to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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