Summary: Mrs X complained the Council failed to secure the provision of the Speech and Language Therapy (SaLT) assessment specified in her son, Mr S’s, Education, Health and Care Plan and delayed putting into place transport arrangements to college which then proved to be unsuitable. The Council was at fault when it delayed in ensuring the SaLT assessment took place. This caused Mrs X and Mr S an injustice. The Council should make a financial payment to recognise this. There was no fault in the transport arrangements the Council put into place or the timing of those arrangements.

The complaint

1. Mrs X complains the Council:
• failed to arrange the Speech and Language Therapy (SaLT) assessment specified in her son, Mr S’s, Education, Health and Care Plan (EHC Plan), in a timely manner; and
• delayed in arranging transport to Mr S’s college. Mrs X says that the arrangements the Council subsequently put in place are not suitable to meet his special educational needs and are not in line with his Plan.
2. Mrs X says Mr S’s condition has deteriorated because without a SaLT assessment, the college has been unable to provide the therapy he needs. Mrs X says she has been caused distress and frustration by the Council’s actions.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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”.
7. 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)
8. 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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How I considered this complaint

9. I spoke to Mrs X and considered her view of her complaint.
10. I made enquiries of the Council and considered the information it provided. This included the Tribunal order, Mr S’s EHC Plan, Mr S’s last two SaLT assessments, the minutes from the relevant Panel meetings, the Council’s post-16 school transport policy and complaints correspondence.
11. I wrote to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The law and statutory guidance

12. Councils must have a transport policy. This must include transport arrangements for students with special educational needs.
13. Cheshire East Council’s Post 16 Educational Policy Statement states the Council “understands that there will be post 16 students with SEND who will not be able to travel independently to their place of learning and, in such cases, the Council will provide assistance either in the form of a direct payment or by arranging and subsidising the costs of transport”.
14. The Policy also provides information on appealing a Council decision about travel. This says that at stage 1 a senior Council officer will review the decision and respond within 4 weeks of receiving the appeal request.
15. A parent or carer can request a stage 2 appeal if dissatisfied with the stage 1 response. The case is the heard by the Council’s Appeals Sub-Committee who will consider written and verbal representations from the parent or carer within 8 weeks.

Young people with special educational needs

16. The Children and Families Act 2014 sets out how support will be provided to young people with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ gives more details about how councils, schools and others should carry out their duties.
17. Most children and young people will have their SEND needs met within early years settings, schools or colleges without any need for involvement from a council. Young people with more complex needs might instead need an Education, Health and Care (EHC) Plan. This sets out the young person’s needs and what arrangements should be made to meet them.
18. Under section 42 of the Children and Families Act, the Council is responsible for securing the specified special educational provision for the young person. This means 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. These duties are non-delegable and other than for the period when the emergency measures under the Coronavirus Act 2020 were in place, a council cannot discharge its duty by showing it tried but failed to put the support in place.
19. Under the Coronavirus Act 2020 the Secretary of State issued a notice which changed the key section 42 duty in the Children and Families Act. The change meant the absolute duty of councils under that Act to secure or arrange the educational provision set out in an EHC Plan, was temporarily modified to a duty to use ‘reasonable endeavours’ to do so. The changes under the notice were applicable from 1 May to 31 July 2020.

What happened

20. Mr S has a diagnosis of autism spectrum disorder and other conditions. He has had an EHC Plan for several years. In September 2020, Mr S was due to leave his school placement and start post-16 college.
21. When he attended school, the Council put travel provision into place for Mr S to take a taxi to and from school.
22. When Mr S was in his final year at school, the Council reviewed and then issued a final amended EHC Plan. Mrs X appealed the provision in the Plan to the SEND Tribunal. Following the hearing, in February 2020 the Council issued another final amended EHC Plan. The Plan included the following:

Mr S “struggles to access both public transport and educational transport. It is important to recognise [Mr S] is unable to travel independently currently but he understands that it is important in the future. He finds it challenging to tolerate the behaviour of others in a confined space, especially younger children”;

There will be a speech and language therapy assessment at point of school leaving which will inform need for any ongoing post 16 speech and language therapy provision”.

23. In April and May 2020, Mrs X was in contact with the Council about Mr S’s transport provision to college from September 2020. She believed Mr S’s EHC Plan specified the type of provision he required. The Council informed Mrs X that the Council Transport Panel would consider her request for travel assistance. The Council told Mrs X that it did not believe Mr S’s EHC Plan specified the type of transport Mr S required.
24. Later in May, a Council officer emailed Mrs X and said the Council’s Post 16 Travel Policy for 2020/21 must be published by 31 May 2020. Once that was available, the Council would consider what travel support Mr S was entitled to. The officer said they would update Mrs X around mid-June.
25. Mrs X requested an update in mid-June but the officer said the policy had not been finalised. The officer asked what concerns Mrs X had and requested she send the Council Mr S’s start date and timetable. Mrs X said her preference was for Mr S to remain with his current taxi service.
26. In July 2020, Mrs X made a stage 1 complaint to the Council. Her complaint included concerns that Mr S had not had the SaLT assessment specified in his EHC Plan and issues with the transport arrangements.
27. At the beginning of August, the Council emailed Mrs X about Mr S’s travel arrangements. It said:

"[The College] provides free transport for their students and the local authority would not usually provide transport where this was available. [The Council] has been working with the SEND team to discuss [Mr S's] transport needs. We would hope that [Mr S] would be able to work towards accessing this bus in the future with appropriate support as part of his preparation for adulthood. However, we recognise that an interim arrangement may be appropriate to help [Mr S] settle in to college life".

28. The Council went onto to say:
• Mrs X would have to contribute £450 a year which was the same amount all other families had to contribute towards post 16 transport;
• the Council would provide one trip by taxi at the start of the school day and one at the end;
• the transport was likely to be shared and therefore, drop off/pick up times needed to be consistent for all pupils;
• Mr S’s previous transport had been suited to his needs. However, now he was older, and preparing for adulthood, it was expected he would stay in college in a break out area whilst he was not in timetabled activities; and
• the previous contract had ended and it would inform Mrs X of the new contractor once the tender had been awarded.
29. Later in August, the Council responded at Stage 1 and confirmed the details of Mr S’s travel provision.
30. In September, Mr S began attending college on site two days a week.
31. Mrs X remained unhappy and complained at stage 2. She said the Council had failed to abide by the travel arrangements discussed at Tribunal and did not feel the objectives in Mr S’s EHC Plan would be met. Mrs X was worried Mr S might have to travel with another child or young person in the taxi which she said he would not be able to cope with.
32. The Council responded in September and in relation to the matters forming this investigation said:
• a virtual meeting would be held to discuss Mr S’s objectives;
• the SaLT assessment would be discussed at the meeting;
• it apologised it had taken so long to make travel arrangements for Mr S. The Council said it would discuss this with the relevant officers; and
• Mr S was currently the solo passenger in his transport.
33. Mrs X remained unhappy and complained to the Ombudsman.
34. In May 2021, Mr S was assessed by a special Speech and Language Therapist. They recommended Mr S needed the following special educational provision:
• modifications to the classroom setting and teaching strategies;
• training (1 hour minimum) for staff on the type of language to use with Mr S; and
• a social skills programme created by a specialist SaLT to be carried out by tutors and support staff.
35. In its response to my enquiries the Council made the following points in relation to Mr S’s SaLT assessment:
• Mr S’s previous school should have carried out his SaLT assessment before he left which it failed to do;
• the Council took the request for funding for a SaLT assessment to its Panel in October and December 2020. The NHS lead on the Panel agreed to progress the referral;
• at the beginning of February 2021, the NHS stated it did not have capacity to carry out the assessment;
• as a result, the Council commissioned a private provider.
36. The Council apologised for the delays in starting the assessment. It said it was working with the school and the NHS to ensure similar issues did not arise again in future.
37. With regard to transport to college, the Council stated it was aware of Mrs X’s concerns that Mr S may have to share transport in the future. It said “There are very few students attending [Ms S’s college] that are in receipt of travel assistance from Cheshire East and therefore the likelihood of [Mr S] sharing transport is low. If the circumstances did arise where there is another child identified to share the transport, before any changes would be made a meeting would take place to discuss the impact on the individual children and circumstances before a final decision”.

My findings

Speech and Language Therapy

38. The SEND Tribunal ordered the Council to arrange a SaLT assessment for Mr S prior to him starting at college in September 2020.
39. The Council was entitled to request the school carry out the assessment. However, between February and July 2020, there is no evidence the Council actively monitored whether the SaLT assessment had taken place. As a result, it did not use reasonable endeavours to secure this provision. Its failure to do so is fault.
40. From September 2020 onwards, the Council’s duty to secure the provision in an EHC Plan returned to being an absolute duty. The Council has provided an explanation about why the assessment was delayed. However, it retained the responsibility to ensure it did take place. The Council was at fault.
41. I have considered the injustice experienced by Mr S and Mrs X up to May 2021 when the SaLT assessment was carried out. Any injustice, which may be ongoing, after May 2021 should form part of a new complaint.
42. The SaLT assessment identified Mr S required support and his teaching staff required specialist training. Therefore, Mr S was caused an injustice because this was not provided between September 2020 and May 2021. Mrs X also experienced an injustice because she was caused unnecessary distress and frustration by the Council’s failure to support Mr S properly. The Council has already apologised. As a result of my investigation it also agreed to make a financial payment to Mrs X and Mr S to acknowledge this injustice.
43. In considering the financial payment the Council should make, I have referred to our Guidance on Remedies. This says that where fault has resulted in a loss of special educational provision, we will usually recommend a payment of between £200 and £600 a month to acknowledge the impact of that loss.
44. The Council says it has worked with the school and relevant part of the NHS to prevent similar faults occurring in future. The Council has agreed to provide evidence it has done this.

Transport to college

45. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. We will not question the professional judgement of officers where a decision has been correctly made.
46. Mr S’s EHC Plan does not specify the transport assistance the Council must secured.
47. Mr S takes a taxi to college. The Council has said if circumstances arose where there was another child identified to share the transport, they would discuss the impact on the individual children and circumstances. These are suitable actions to take if this eventuality was to occur. The Council was also entitled to change the contractor and to keep the arrangement under regular review. There is no fault in the Council’s actions.
48. Mrs X said the Council took too long to arrange the transport provision for Mr S. The Council took longer than it originally said to complete its Post 16 Travel Policy. However, the provision was in place and Mrs X informed of arrangements before the start of term. The Council was not at fault.

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Agreed actions

49. Within one month of the date of the final decision, the Council agreed to:
• pay Mrs X, on behalf of Mr S, £1,500 to remedy the speech and language therapy he missed out on. This should be used as she feels best to support his social and educational needs. In coming to this figure, I have taken into consideration, and used, different tariffs to acknowledge the changes made by the Coronavirus Act 2020 to the Council’s duty to secure the provision in Mr N’s EHC Plan.
• pay Mrs X £150 to remedy the distress and frustration she experienced by the Council’s faults.
50. Within three months of the date of the final decision the Council agreed to provide evidence of the work it has carried out with the school and relevant part of the NHS to prevent delays occurring for the same reasons in future.

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Final decision

51. There was fault leading to injustice. The Council has agreed to my recommendations. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman