Summary: Ms X complained that the Council failed to ensure her son, K, received support from suitably experienced and trained staff as set out in his Education Health and Care Plan. We find there was service failure in the delay in providing training from September 2020, but no other fault. The impact of the delay was limited because of other support K received. The Council has agreed a remedy.

The complaint

1. Ms X complained that the Council failed to ensure that the provision for a specialist teacher and teaching assistants with appropriate experience and training was put in place as required in her son’s Education Health and Care Plan.
2. As a result she says her son has not had the full range of support he needs with the use of his communication aids since April 2020.

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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. The Ombudsman’s view, based on caselaw (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407), is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused.
5. 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

6. I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered councils’ duties to provide support for children with Education Health and Care Plans. 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

Education Health and Care Plans

7. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section B describes the child’s special educational needs. Section F sets out the support that must be put in place. We cannot direct changes to the sections about education, or name a different school. Only the Special Educational Needs and Disability (SEND) Tribunal can do this.
    
8. Councils must review EHC Plans at least every 12 months.
9. Councils have a duty to ensure the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)

Impact of the COVID-19 pandemic

10. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to Covid-19’.
11. The Secretary of State issued a notice under the Coronavirus Act 2020 to give councils more flexibility in dealing with EHC Plans and provision. It temporarily changed councils’ absolute duty to ‘secure’ the education provision in an EHC Plan to one of using ‘reasonable endeavours’ to do so. This change applied from 1 May to 31 July 2020. At the end of this period, councils’ usual duties resumed.

What happened

12. Ms X’s 13-year-old son, K, has a medical condition which means he is a full-time wheelchair user, and has developmental delay and significant difficulties with speech and language. K has had an EHC Plan and has been receiving support from the Speech and Language Therapy (SaLT) service for several years. He uses electronic devices and software to help him communicate, known as Electronic Assistive Technology (EAT) and Alternative Augmented Communication (AAC) equipment.
13. K attends a specialist school catering for pupils with varying degrees of learning difficulties, including those with severe physical and sensory difficulties. The school has arrangements with a range of visiting professionals such as SaLT therapists. In 2019, shortly after K started at the school, Ms X appealed to the SEND Tribunal for more SaLT support. The Tribunal issued its decision on 1 April 2020 ordering the Council to amend K’s EHC Plan to include extra SaLT provision.
14. The Council issued the amended final EHC Plan on 9 April. The SaLT support in section F included the following in the section on ‘communication and interaction’:
• “[K] requires a specialist teacher and teaching assistants with experience and training in the use of alternative and augmentative communication aids.
• “It is recommended that [K‘s] class team receive training in facilitating the use of alternative and augmentative communication from a speech and language therapist specialist in this area.”
• K to be supported to use a communication aid identified as appropriate to his needs by the SaLT therapist with support programmes devised by the SaLT.
• An individualised daily 15-minute communication programme delivered by the school.
• 12 hours a term from a specialist SaLT therapist including working with professionals and providing resources.
• Three SaLT visits a year to K.
15. The Council issued an amended final EHC Plan on 15 May 2020 after Ms X made a complaint that the 9 April Plan had not included wording the Tribunal had ordered in section B. The amended EHC Plan included the extra wording describing K’s special educational needs. It did not change the SaLT provision set out in section F.
16. K did not attend school during the first lockdown from March to July 2020. He returned to school in September 2020 when schools re-opened fully. He had a phased return for the first two weeks. There was a new class teacher, but K still had support from some of the Teaching Assistants who had worked with him previously.
17. Ms X made a complaint to the Council on 11 October 2020. She said the Council had failed to ensure the following two items from K’s EHC Plan were being delivered:
• the requirement for a specialist teacher and teaching assistants with experience and training in the use of AAC aids;
• the recommendation for K’s class team to receive training from a SaLT specialist in helping him use the AAC.
18. She said the class team did not have the relevant experience to support K with the use of his AAC aids. She asked the Council to “consider putting in place full-time 1:1 support (fully trained and experienced in AAC delivery) throughout [K’s] school day to facilitate the use of his AAC device”.
19. The Council did not uphold the complaint. It was satisfied from its enquiries that the school was using the AAC equipment appropriately and had contacted the SaLT therapist about providing training.
20. Ms X was not happy with the outcome and asked the Council to take her complaint to stage 2.
21. The Council sent its stage 2 response in mid-November. It explained the further investigation it had carried out and said it was satisfied there was a trained team working with K to support his use of his AAC device. It said the SaLT therapist had been working with the staff at the school for several years. There was a training session for staff working with K on 23 October which had been delayed because of the pandemic. The Council did not uphold the complaint.
22. Ms X complained to the Ombudsman. She said:
• the class team were not using the equipment correctly and this indicated they were not suitably experienced;
• they only had the training session at the end of the first term;
• she was having to input information onto the device herself.
23. As a result of her complaint she wanted the Council to ensure:
• the class team is trained and experienced, or there is a 1:1 Teaching Assistant to support K with the use of the technology throughout his school day;
• staff receive continuing training, as well as when class teams change at the beginning of each school year, so they can ‘hit the ground running’.

Provision of support

24. In order to respond to Ms X’s stage 1 and 2 complaints, the Council took the following steps:
• reviewed K’s file,
• spoke to senior staff at the school,
• spoke to the SaLT therapist working with K,
• reviewed the reports from the school for the annual review of K’s EHC Plan which started in November 2020, and
• received a briefing on the use of the AAC equipment K uses and the training needs of staff working with a student using that equipment.
25. The school told the Council it was satisfied that staff working with K had the necessary level of skill to support him using the communication device. K used the equipment throughout the day every day. If staff had any difficulties there was support available for them from the school’s communication leader and the SaLT therapist. The school did not report any concerns about the ability or skill level of the staff in using the equipment either during the investigation or when reporting back to the Council at other times such as during the annual review. Staff were confident in how to use the equipment. There were other students using the same equipment as K in his class and the Teaching Assistant was experienced in programming it.
26. Also, the Council said the school was a ‘total communication school’. This means it uses a range of different approaches to support K’s communication. The AAC device was one element of this integrated approach, but not the only one used.
27. Regarding the training, the Council said staff had attended a training event in December 2018 provided by the NHS on implementing AAC in the classroom. So all staff have a level of general expertise in using AAC. When a new student arrives staff are given more targeted support and they receive a SaLT programme. The SaLT had been working with the school to support students with electronic communications aids since September 2016.
28. Due to the pandemic, training for K’s new class staff from September on the use of his equipment was delayed until 23 October 2020. Planning for the training had started in August.
29. The Council also provided further information in response to my enquiries. It said before the October training session, staff watched training videos the SaLT therapist recommended. All class staff are fully trained and experienced in facilitating the use of AACs. K uses his device across the curriculum and throughout the school day in a wide variety of situations. Examples given were to communicate his needs, wishes, choice and opinions, to gain attention in class so he can answer questions and complete his work, in communicating with other pupils, and ensuring staff understand what he has said.
30. The Council said during regular communications with the school Ms X offered to input information onto K’s device and continues to do so. The school and Ms X communicate about the content of lessons and staff appreciate Ms X’s contribution. The Council says it has maintained oversight of the arrangements through regular communications with the school and through the annual review process. The Lead SEND Officer has also had discussions and regular communications with the SaLT about Ms X’s concerns. The Council said the school and the SEND assessment team would like to reassure Ms X that classroom staff are suitably trained and experienced in the use of K’s communications aids.
31. I have also looked at the Annual Review documents. The SaLT report for the Annual Review meeting held virtually in November 2020 showed that K had had video appointments with the SaLT in June, July and August. Half termly face to face sessions resumed in school in September. They took place in September and November. The report noted K’s progress with language using the device. It also said he likes to talk and as part of the total communications approach the school had provided amplifiers so his voice could be heard.
32. At the November meeting Ms X raised her concern that she did not think K’s communication aid was being used. Staff assured her he used it regularly and would continue to do so. The report from the school details how K communicates in different contexts and uses all available devices.
33. There were further meetings in January 2021 because the meeting in November had not managed to complete the review. During these meetings Ms X queried how the communications aids were being used and the level of skills and experience staff working with K had. The Assistant Head of the school and the SaLT therapist confirmed the following.
• Both the communication device and EAT were still being used in school and staff were trained to implement this. K has access to his communication aids at all times
• The teacher and Teaching Assistants in class were all trained AAC users.
• All class staff had experience of working with pupils using AAC previously and have a lot of experience with communication aids.
• Training is provided by the communications lead at the school and by the SaLT therapist, and the two liaise with each other. Staff have face to face training, online learning and manuals.
• Training also takes place when there are changes in the software. Whenever the SaLT visits the school she discusses training requirements with staff and reviews training needs annually. There is also informal training. The SaLT therapist reviews software and equipment and looks into new products.
34. Ms X queried why she was inputting information onto the device. The school said it understood this was something Ms X offered to do following a discussion with the class teacher. It said the teacher was happy for her to do it but was not reliant on her.

Analysis

35. Ms X says she would like K to have 1:1 support in the classroom. It is not for the Ombudsman to say what support should be included in an EHC Plan. If Ms X wants the provision changed she would need to ask the Council to review the Plan. She would have the right of appeal to the Tribunal if the Council does not agree to the extra provision. I can look at whether the Council has ensured that the support set out in the EHC Plan has been delivered. Ms X’s main concerns are whether staff working with K are suitably trained and experienced in line with his EHC Plan.
36. The Council looked into the matter in detail and was satisfied by the information provided by the SaLT and the school that staff working with K have an appropriate level of skills, experience and training in supporting pupils with AAC and EAT. In the face of this evidence and the further evidence the Council has provided I could not say it failed to ensure K had suitable staff to support him.
37. But Ms X is concerned that from September 2020, when there was a change of class teacher, the new teacher was not properly trained on the equipment K uses. Ms X says the teacher told her she did not know how to use it and had not received training on it. The Council says the delay in arranging the training occurred because of the COVID-19 pandemic. The training took place on the next INSET (staff training) day on 23 October 2020. The Council did not give any details about how the pandemic affected the arrangements.
38. The Council’s full duty to arrange the provision in the EHC Plan resumed on 1 August and the Council says the planning for the training started in August. I would not expect staff training to take place during the school summer holidays. But in order to comply with the EHC Plan and have a class teacher trained by the SaLT in the use of K’s communications aids, the teacher would have to have received training in September. The class teacher and any other new staff did not receive the training until around six weeks into the new term.
39. The Council says arranging the training was a matter for the SaLT service and the school and it took place at the earliest opportunity based on their availability. It says it could not dictate the timing of the training and so the matter was outside its control. We accept this explanation, and we do not consider there is evidence of maladministration in how the Council acted. Nevertheless the Council had ultimate responsibility for putting the provision in the EHC Plan in place, it did not happen for six weeks, and we regard the delay as service failure by the Council.
40. I have considered the impact this delay may have had. I understand that at least one of the Teaching Assistants in K’s class had already received training on the device he uses. They were familiar with it and had been supporting him to use it from the previous year. Ms X discussed the equipment with the class teacher and helped her by inputting information onto it and exchanging information about the content of the curriculum. Staff with skills and experience in AAC also helped K with other methods of communication. This makes it difficult to assess what effect the delay in providing training to the class teacher would have had on K’s ability to progress with his communication skills. It seems likely the other support he received would have limited the impact. However Ms X put time and effort into helping the teacher with using K’s device. She says she would not have had to do so if all staff supporting K had had the proper training in time.

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Agreed action

41. The Council has agreed to take the following action to remedy the injustice caused by the service failure.
• Offer Ms X a payment of £300 to recognise the partial impact on her and K of the delay in providing the training to the class teacher, and Ms X’s time and trouble in helping with K’s device. It should make the payment within one month of the final decision on this complaint.
• Consider how it can ensure new staff receive training on K’s equipment as early as possible at the beginning of each year and produce a plan to ensure this happens. The Council should take this action within three months of the decision and tell the Ombudsman and Ms X the outcome.

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Final decision

42. I have found there was a service failure in the delay in providing training on K’s equipment. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.
43. 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.

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Investigator's decision on behalf of the Ombudsman