London Borough of Hackney (17 017 040)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 15 Feb 2019

The Ombudsman's final decision:

Summary: The complainant alleges that the Council delayed in providing the Speech and Language provision specified in his son’s Education, Health and Care Plan. The Council accepted that it had delayed but not to the extent claimed by the complainant. It also did not consider the delay had resulted in an injustice to his son. The Ombudsman considers that there is fault causing an injustice. The Council has agreed to the Ombudsman’s recommended settlement of the complaint.

The complaint

  1. The complainant, who I shall refer to as Mr Y, complains that the Council failed to provide the required Speech and Language Therapy (SALT) to his son, Child B, as set out in his Education, Health and Care (EHC) Plan of June 2017. The complainant says that, as a result, his son has lost out on this provision between 3 August 2017 to 16 January 2018.

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. The Council is responsible for 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.
  3. 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 have received comments from the Council about Mr Y’s complaint. Mr Y has provided further information in response to the Council’s comments.
  2. I issued a draft decision statement. The Council and the complainant provided further information which I have considered. A second draft statement was sent urging the Council to accept the recommended settlement of the complaint; otherwise the Ombudsman would have to consider issuing a public report. The Council then agreed the settlement.
  3. 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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What I found

  1. Councils assess children who may have special educational needs. An assessment may decide the child needs an Education, Health and Care (EHC) Plan. The council must then develop and issue the plan, ensure it is reviewed annually and implement any changes from each review.
  2. Plans should focus on achieving outcomes for the child
  3. Section F of an EHC Plan sets out the special educational provision required. This must be detailed and specific. Health or social care provision that educates or trains a child must be treated as special educational provision and be included in Section F of the EHC Plan.
  4. Councils are responsible for ensuring children with an EHC Plan get the support they need. The council has a legal duty to provide special educational provision specified in a plan. The council cannot delegate this duty to a school. If a school’s actual resources, financial or expertise, cannot make the provision outlined in the plan, the council must provide it.

Facts of this complaint

  1. In June 2017, the Council issued Child B’s EHC Plan. This identified 22 hours of SALT provision, 12 hours direct provision and 10 hours indirect. Mr Y submitted an appeal to the Tribunal and this was heard in January 2018.
  2. Child B started at primary school in September 2017. Child B has a diagnosis of autism and had been receiving one to one support both at his nursery and at home.
  3. The Council says the SALT provision specified in Child B’s June 2017 Plan was to be delivered in school across the academic year.
  4. Mr Y says that the EHC Plan did not stipulate that SALT provision was to be term time only and the Council was aware that Child B had received SALT at home with the parents during the holidays. Mr Y says also that the Council should have started making appropriate assessments, before Child B started school, so that the SALT provision was available for Child B at the start of the school term. Mr Y says that it is accepted that Child B cannot access education without SALT support.
  5. Mr Y alerted the Council to the lack of SALT provision on 11 November 2017. Once the Council became aware of this, the Council says that the Therapist confirmed that provision would start the following week. The Council considers provision started on 27 November. Mr Y says that the first visits by the Therapist were for initial observations.
  6. The Council says that, on 7 and 12 December, Child B received direct SALT interventions in school. Mr Y says that there were no direct intervention sessions until 16 January 2018. The involvement of the SALT Therapist in December 2017 was related to assessments rather than provision.
  7. The Council claims that Child B made progress in the autumn term 2017 and therefore there is no clear injustice to him by any delay is making the SALT provision. Mr Y says that Child B made progress because he was paying for the provision of Pivotal Response Therapy (PRT-specialist autism therapy). This was the reason Child B progressed.
  8. The Council says that it apologised to Mr Y for the delay in implementing SALT provision from September 2017. Once made aware of this, the Council took immediate steps to ensure the SALT provision started.

Further information obtained

  1. The Council has provided information, in a document dated September 2018, about what constitutes direct and indirect SALT provision.
  2. It states direct work may involve: assessment with the child in class or in a separate room; observation of the child at school; running groups; 1:1 therapy sessions and modelling intervention for a teaching assistant, parent or other professional to run.
  3. Indirect work may involve: providing advice and support to the class team or parents; analysing assessment results and writing programs or support strategies; planning intervention and clinical administration (record keeping); liaising with other professionals, attending annual reviews or planning meetings and creating resources for the child to use, for example therapy resources or visual supports for the classroom.
  4. In October 2017, the Clinical Lead Specialist Therapist completed a report based on her observations of Child B during September 2017 for the forthcoming Tribunal appeal. She noted that the main support at that time for Child B was from the PRT support worker. The Therapist noted that Child B required ongoing 1:1 support so that he could access the foundation stage curriculum and participate fully in the class.
  5. A SALT Therapist observed Child B at primary school on 27 November, 7 and 12 December 2017. The Council refers to these interventions as direct provision. The Council says that Child B had three sessions amounting to 2 hours and 20 minutes of direct support spread out, over three weeks, which is over and above what would have been provided if intervention had started earlier in the term.
  6. Mr Y maintains that the above does not amount to direct SALT support or provision.

Analysis

  1. There is no dispute that the Council failed to make any SALT provision, either direct or indirect, until Mr Y alerted the Council to this on 11 November. The Council says that SALT provision started within two weeks of this.
  2. There is a dispute between Mr Y and the Council about:
      1. the start date of the SALT provision, specified in Child B’s EHC Plan;
      2. the definition of direct and indirect SALT provision; and
      3. whether the delay in starting the SALT provision has caused detriment to Child B.

Start of provision

  1. The ECH Plan published in June 2017 does not specify a start date for the SALT provision. Mr Y says it should have started during August, so that a programme was in place prior to his son starting school in September.
  2. The Council says it is not unusual to delay direct provision when a child moves into a new phase of education, such as Child B was in September 2017. It has provided a statement from its SALT service which supports this approach. However, the Council admits it did not actively make this decision in Child B’s case, and that an administrative error caused delay in arranging support.
  3. We therefore find the Council to be at fault for failing to secure provision required by Child B’s EHC Plan.
  4. However, even if the fault had not occurred, we consider – on balance – that direct provision was unlikely to have occurred from the start of September term. However, we do consider that indirect provision should have begun either at the start, or soon after, the beginning of term. This view is supported by the statement from the SALT service, which implies that indirect provision will be in place throughout the transition period:

“Over the course of these transitions our focus is on ensuring that the child has the right supports in place to ensure that they can participate in the classroom activities …

“Once the communication environment is set up … and the child’s communication needs are being met on a day to day basis direct intervention in the form of group work or 1:1 support will be more effective”.

  1. Indirect provision is intended to lay the foundation for the direct provision which follows. We consider that if indirect provision had commenced from the start of term, then an informed package of direct provision could possibly have started from an earlier date.
  2. Finally, the Council has highlighted a SALT assessment took place in September, but this was in relation to a separate Tribunal process, and did not constitute provision under the ECH Plan.

Direct and indirect provision

  1. The Council defines direct provision as assessing and observing Child B at school. The Council says that this started on 27 November 2017 and therefore it is satisfied that it only delayed in making SALT provision to this point.
  2. Mr Y, on the other hand, does not regard ‘assessment and observation’ as direct provision and, in any event, he considers that the ‘assessment and observation’ should have taken place before Child B started at primary school. He says that Child B did not receive 1:1 SALT support until 16 January 2018.
  3. I can understand that most parents might think ‘assessing and observing’ a child does not amount to direct 1:1 support.
  4. However, it is not for the Ombudsman to decide what constitutes direct and indirect SALT provision. Moreover, some observation and assessing of a child is necessary in order to devise a therapy programme. We are therefore satisfied the provision provided in November and December 2017 amounted to direct provision, as per the Council’s policy.

Did the faults cause injustice?

  1. It is clear that there was delay (from September to late November 2017) with the Council starting the SALT provision, direct or indirect.
  2. I consider that this would have caused an injustice to Child B in that he went without support which he required to meet the outcomes specified in his ECH Plan This represents a loss of opportunity to Child B, and uncertainty about what the outcome would have been had the necessary support been in place from an earlier point. In saying this, we accept that there needed to be some observation of Child B and then direct interventions drawn up as a result. But these observations could have started earlier but for the Council’s fault.
  3. The Council has provided evidence that Child B made progress during the autumn term. It says this shows that Child B did not suffer injustice due to the delayed provision. The Council also says that once the fault came to light it arranged the provision as soon as possible, so there was no overall net loss for the academic year.
  4. We acknowledge the evidence that Child B made some positive progress during this period. However, it is not possible to conduct a comparative analysis of the progress that Child B might have made had SALT intervention started earlier, compared to the progress he managed to make without the necessary support. The injustice he has suffered is a loss of opportunity, and the uncertainty this causes. However, we accept the severity of the injustice is mitigated by the evidence the Council has provided, and by the fact it made-up for the lack of support by the end of the academic year.

The Ombudsman’s guidance on remedies

  1. The Ombudsman will usually recommend a payment of £200 to £600 per month for lost education or provision. He will take account of the impact of the loss on the child’s life chances and whether any additional provision can remedy some or all of the loss. The Ombudsman will also make payments for complainants’ avoidable frustration and for their time and trouble in pursuing their complaints.

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Agreed action

  1. The Council has already apologised to Mr Y for its delay in arranging provision, and had made-up the lost provision by the end of the term. To recognise the injustice caused by the three-month delay (from September to November) in starting the provision, the Council should make a payment of £300. This falls beneath the recommended figures in the Ombudsman’s guidance to reflect the fact that Child B was in receipt of education throughout this period. It will be for Mr Y to decide how best to use this payment for the benefit of Child B.
  2. The Council should pay £100 for the complainant’s avoidable frustration and his time and trouble in pursuing his complaint.
  3. The Council has agreed to these recommendations.

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Final decision

  1. I consider that there is fault by the Council which caused injustice to Child B and to Mr Y. The Council has now accepted the recommended action. I have therefore completed my investigation and I am closing the complaint.

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Investigator's decision on behalf of the Ombudsman

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