The Ombudsman's final decision:
Summary: The Council accepts that it failed to put in place SALT provision detailed in an Education, Health and Social Care Plan between February 2017 and May 2018. This amounts to fault that has caused injustice and the Council will make a payment to recognise the injustice this caused. There were also faults in the Council’s handling of Ms X’s complaints about this which the Council has agreed to take action to put right.
- The complainant, whom I shall refer to as Ms X, complains about the service provided to her son, whom I shall refer to as Y, from February 2017 in relation to provision of speech and language therapy detailed in his Education, Health and Care Plan. In particular she says:
- it failed to make specified provision from February 2017 to May 2018;
- its adjudication of her complaint about this failed to adequately address her request for an explanation as to why interim provision was not pursued;
- its adjudication also failed agree to provide a single point of contact at the Council for parents to approach in such situations in future; and
- its handling of her complaint was poor, delayed and did not comply with its published complaints procedure.
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)
- 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)
How I considered this complaint
- I discussed the complaint with Ms X and considered the written information she provided with her complaint. I made enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
- I gave the Council and Ms X the opportunity to comment on my draft decision. I took account of their responses before reaching a final decision on the complaint.
- 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.
What I found
- 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 Council is responsible for making sure that arrangements specified in the EHC plan are put in place.
- Y’s EHC plan states that he should receive “A structured language programme based upon advice from a SALT (speech and language therapist)”. It states this will be provided for a minimum of 30 minutes a week. In the section of the document that details who should provide this the document states “SALT”.
- The SALT employed to deliver Y’s weekly language programme went on maternity leave in February 2017. The Council then failed to make the SALT provision detailed in the EHC plan until she returned over a year later. There is no dispute this was the case: the Council accepts this.
- Ms X says that she struggled to find out who to speak to at the Council about the lack of provision after the SALT left and confirms that around May 2017 the Council considered approaching another SALT provider to deliver the programme, obtained costings for this but did not then pursue this.
- Ms X complained about this in July 2017. Following an earlier complaint to this office the Council agreed to consider Ms X’s complaint at stage 2 of its corporate complaints procedure after Ms X was dissatisfied with its response at stage 1 of that procedure. In line with the Council’s procedure the Council appointed an independent person to conduct the consideration at stage 2. The stage 2 investigation report was produced in March 2018. Ms X complained that:
- a SALT was not provided for Y despite it being part of the provision within Section F of his Education, Health and Care Plan (EHCP) and so a legal duty of the Local Authority to secure provision. The investigator upheld this complaint;
- Ms X pursued her request for continued provision of SALT for Y from February 2017. But despite being passed from one officer to another no provision was put in place. The investigator upheld this complaint;
- in May 2017 interim cover was investigated and costed but not pursued. The investigator upheld this complaint but could gain no explanation as to why the interim provision was not pursued;
- Ms X complained to the Council about the lack of provision in July 2017. She was unhappy with the response as she said it did not address the issues raised but instead directed her to discuss future arrangements with the Manager of the local Clinical Commissioning Group. The investigator upheld this complaint;
- In October 2017 Ms X said that as no progress had been made she wanted to escalate her complaint to Stage 2 of the process. She emailed again on 17th October 2017, then emailed again on 20th October 2017. The Council did not reply to this third email and she complained to the Ombudsman’s office. On 10th November 2017 the Council confirmed it would consider her complaint at stage 2 of the corporate complaints process. Ms X complained that it took too long and a complaint to the Ombudsman’s office for the Council to agree to investigate her complaint at stage 2 of the procedure. The investigator upheld this complaint.
- a Speech and Language Therapist to be provided;
- the Council to ensure that a named person is accountable for ensuring that jointly commissioned services are provided and to establish a clear route for parents to address problems with provision. This information should be made available to parents when they notify the LA about any issues with EHC provision; and
- a comprehensive explanation as to why a Speech and Language Therapist has not been provided, including a full explanation of why interim cover was not arranged via School’s Choice as proposed. The SEN Code of Practice states that the Local Authority has a legal duty to provide a Speech and Language Therapist as included within Section F of Y’s EHCP.
- agreed to increase the payment to Ms X in line with our guidance on this from £750 to £1050 to recognise the injustice caused to Y by the failure to make the SALT provision detailed in his EHC plan for over a year;
- stated the reason the interim provision was not put in place was confusion between the Council and health commissioners about who should take responsibility for this given that the SALT being provided prior to the therapist taking maternity leave was from a health commissioned provider. The Council says this confusion was compounded by staff changes which meant that the matter was not pursued as it should have been. It says this situation will not happen again as there is a review of SALT services underway that has clarified the respective responsibilities of all parties;
- said that parents should contact the named Lead Case Co-ordinator for their locality should they have any issues with their child's EHC plan provision. It says these are published on the SEND local offer website; and
- acknowledged that once it was clear Ms X wanted to escalate her complaint, the Council should have arranged for the complaint to move to the next stage of the procedure. It confirms further training has been provided to staff on this.
Was the Council at fault and did this cause injustice?
- The Council accepts that it did not make SALT provision as detailed on the EHC plan and this amounts to fault that caused Y injustice.
- The adjudication letter following the investigator’s findings at stage 2 of the corporate complaints process did not address all the areas that Ms X had stated she wanted as an outcome even though the entirety of her complaint was upheld. The failure to address these does therefore amount to fault that has caused Ms X injustice as she has had to come to this office in order to remedy this.
- The Council accepts its staff did not properly handle Ms X’s complaint. This caused Ms X injustice as she was caused avoidable time and trouble in pursuing her complaint.
- The Council has agreed to increase the payment it previously offered to recognise the injustice caused to Y by the failure to make the SALT provision in his EHC plan between February 2017 and May 2018. This agreed payment is now in line with our guidance on this. It will also make the previously offered payments to recognise distress and time and trouble. I consider its agreement to pay these amounts is sufficient to remedy injustice the fault caused. Whilst I recognise that Ms X had to complain to this office again to obtain an explanation of the reasons for the failure to make interim provision and about who parents should contact, I do not consider I should ask the Council to pay any additional amount to recognise Ms X’s time and trouble in pursuing her complaint further as it has already agreed to make sufficient payment to recognise this.
- The Council has now provided the reason it did not put in place interim provision: essentially the lack of clarity between health and the Council as to who should put this in place. I note Ms X’s comment on this point that whilst there was some initial confusion on this, a senior SEN officer acknowledged the need to put the provision in place dating back to May 2017 yet did not do so. The Council accepts it is responsible for ensuring the provision in the EHCP is made and says a review of SALT services has confirmed and clarified this. It says that the review has resulted in a decision to further review the “speech and language pathway” and that this process is ongoing and not due to be completed until late 2018. Any updated guidance for staff will not be issued until this process has been completed. Based on the information provided I accept that the Council recognises its responsibility for ensuring provision in EHC plans is made and that an outcome of its ongoing review will be clarification of the respective responsibilities of all parties in relation to this.
- The Council says it has provided information on its website which advises parents who they should contact if they have problems such as those encountered by Ms X. The information it refers to is in its online information service directory of provision of local clubs, support groups and childcare providers. This contains a section related to services related to children with special educational needs. Within this the Council has provided contact details of SEN staff working in different geographical areas. I accept that this information is provided and that it identifies the lead person for each geographical area and would hope that this information in combination with updated advice for staff following the ongoing review will enable staff to better deal with parents who raise this issue in future.
- The Council confirms it has provided more training for staff in dealing with requests to escalate complaints to stage 2 of the complaints procedure.
- The Council’s actions amount to fault that caused injustice as detailed above. The action the Council has agreed to take to remedy the injustice is satisfactory. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman