Wirral Metropolitan Borough Council (18 004 492)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 20 Feb 2019

The Ombudsman's final decision:

Summary: Mrs X complained the Council had failed to ensure provision of speech and language therapy required by her son Z’s Education, Health and Care Plan. The Council failed to ensure delivery of therapy as required by the plan. It has agreed to apologise, pay Mrs X £3,000 to remedy injustice caused to Z by this fault and ensure he gets the therapy required by his plan. It has agreed to pay Mrs X an additional £250 for her time and trouble. It has agreed to explain how it has learnt from the complaint to improve future commissioning. It has agreed to complete Z’s annual review documentation without delay, giving Mrs X any relevant right of appeal.

The complaint

  1. Mrs X complains the Council failed to ensure provision of Speech and Language Therapy for her son Z as ordered by a tribunal hearing.
  2. Mrs X says this failure meant Z missed out on essential provision which also led to periods of exclusion from school. She says she repeatedly drew the Council’s attention to this lack of provision.
  3. Mrs X wants the Council to compensate Z for this loss of provision and the impact it had on his education.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  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.
  4. 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 spoke to Mrs X’s representative about the complaint.
  2. I asked the Council questions about the complaint and considered Z’s EHCP after tribunal and the Council’s correspondence.
  3. I considered the Ombudsman’s guidance on remedies.
  4. I gave the Council and Mrs X the opportunity to comment on my draft decision. I considered Mrs X’s comments before making my final decision.

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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 Plan (EHCP). The council must then develop and issue the plan, ensure it is reviewed annually and implement any changes from each review.
  2. Councils must consult the child and their parent throughout assessment and production of an EHCP. Plans should focus on achieving outcomes for the child.
  3. Section F of an EHCP 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 EHCP.
  4. Where parents or the young person disagrees with the contents of the Plan they can appeal to the Tribunal.
  5. Councils are responsible for ensuring children with an EHCP get the support they need. The council has a legal duty to provide special educational provision specified in the EHCP. The council cannot delegate this duty to a school or other body. If a school’s resources, financial or expertise, cannot make the provision outlined in the plan, the council must provide it.
  6. There is no mechanism for parents to refer matters back to the Tribunal to ensure compliance. Complaints about this should use the council complaints process and, if not satisfied can then complain to the Ombudsman.
  7. Councils must review an EHCP every twelve months. Reviews must focus on the child’s progress towards targets in the Plan and on what changes might need to be made to any support to help the child meet the outcomes.

Speech and Language service

  1. The Council in Mrs X’s complaint commissions speech and language therapy (SALT) services from the health service.

Background

  1. Mrs X’s son Z has autism and has had an Education, Health and Care Plan (EHCP) since June 2017.
  2. In late 2017 a SEND Tribunal resulted in the Council issuing Z’s final EHCP. This included Section F – Education. This section said Z must have two weekly 40 minute sessions with a speech and language therapist (SALT). These sessions were to be delivered by a band 6 SALT. These sessions must be observed by a teaching assistant who would undertake extra ‘carry over’ sessions as advised by the SALT. The EHCP named a specialist college as Z’s educational provision.
  3. The Council sent the college Z’s final EHCP in January 2018. At the same time it sent a copy of the plan to the health service responsible for providing SALT.
  4. Z started attending the college. Mrs X said he had problems from the start. She said one incident at the school led to a period of exclusion.
  5. In March 2018 Mrs X realised Z was not getting any of the SALT sessions or carry over sessions required by his EHCP. She spoke to the college who told her the SALT service did not have the expertise or capacity to deliver what Z’s EHCP required.
  6. Mrs X contacted the Council to alert it to the problem. She explained what the school had told her. She asked the Council for a personal budget so she could arrange the provision herself. The Council replied to say it had checked with the school and a Band 6 SALT would start seeing Z in April.
  7. Some SALT provision for Z then started but not at the level required by his EHCP. Z received SALT in a block of ten sessions between April and June. In July the SALT assessed Z again and said he had made significant progress in most areas.

Mrs X’s complaint to the Council

  1. Mrs X made a formal complaint to the Council in April. The Council replied at stage 1 to say it assumed, once it sent the plan to the school that it was responsible for delivery. The school had not told the Council it could not deliver any part of the plan. Feedback was that Z was making good progress. It said the SALT felt the support provided was what Z needed.
  2. Mrs X asked that the Council consider her complaint at stage 2. She said it was not for the school or Council to decide what Z needed. That had been set out by the Tribunal in Z’s final EHCP. She said the lack of SALT was affecting Z’s attendance and performance at school.
  3. The Council replied at stage 2 of its complaint process. It said the provision required by Z’s EHCP was not available at the start of his placement at the school. The Council said it had been aware of the problem since March 2016 and had tried to resolve the situation. It said it would improve practice so it became more quickly aware of problems in EHCP provision.
  4. Mrs X continued to tell the Council about ongoing problems. She said Z was still only getting SALT once a month instead of what the EHCP said he must have. The Council confirmed it had not agreed this change and would refer the problem to the SALT service.
  5. Mrs X and the Council continued to correspond about this between August and October 2018. The Council said it had raised the problem with school and health service staff, provision should be in place and it had been told it would be. It apologised for the ongoing problems and said it would try to resolve them.
  6. Correspondence between the Council and health service during this period shows the Council was concerned about non-delivery of the therapy required. It drew attention to the legal requirement and risks of continued non-delivery.
  7. In October 2018 the Council and Mrs X attended Z’s EHCP annual review. Documentation so far from this review said Z had made a successful transition to the college. It did not identify any changes regarding EHCP outcomes. Section F said current provision remained relevant to Z’s needs. The Council has not yet finalised and sent Mrs X documentation about the review, thus triggering further appeal rights.

My investigation

  1. Mrs X’s representative told me Z had no SALT at all between issue of the final EHCP in January 2018 until April 2018. She said the SALT had, since then, delivered ten sessions in total as a block between April and June, instead of the ongoing twice weekly commitment. The SALT had reassessed Z in June 2018 and said he did not need any SALT.
  2. Mrs X’s representative said that, following the October 2018 review, the Council had not sent an updated draft or final version and so the previous EHCP was still in place.
  3. In reply to my enquiries the Council said it had forwarded the final EHCP to the health service after the tribunal. It did not think the plan had been sent to the SALT team because of a misunderstanding between the school, Council and health service. Because of this, the SALT team had mistakenly thought they needed to carry out further assessment. The Council agreed this was wrong and that the SALT team had no choice but to deliver the therapy required by Z’s EHCP.
  4. The Council said that as a result of Mrs X’s complaint it had met with all special school head teachers to emphasise the importance of telling it about situations where provision in the EHCP is not being delivered. It said it had also improved communication and was reviewing its commissioning arrangements with the health service.
  5. It said it was not sure about the link between delay providing SALT and Z’s behavioural problems including exclusion. The recent annual review showed Z had made a successful transition to the college. Many areas of need in the original plan had now been removed.
  6. The Council accepted the referral process between it, schools and the health service was not fit for purpose. It had apologised and taken action to prevent reoccurrence of the problems Z and Mrs X had encountered.

My findings

  1. This Council commissions the health service to provide speech and language therapy services. However it had the non-delegable duty to ensure delivery of SALT as set out by Z’s EHCP. This means it was responsible for ensuring he had the amount and frequency of therapy as specified in his plan.
  2. Instead of twice weekly 40 minute sessions, (meaning about 76 over a 38 week school year), Z got 10 SALT sessions delivered in a block during 2018. The Council tried to resolve this problem with its commissioned service provider once it became aware of it. It challenged its provider’s assertion that Z had made significant progress and did not need this level of provision. It reminded the provider that this was not a matter for negotiation or debate. It was a legally enforceable expectation. Nevertheless the Council remained accountable throughout and is therefore at fault for continued non-delivery in accordance with the EHCP.
  3. Mrs X believes this fault has caused significant injustice to Z and is, at least partially, responsible for problems with his education during the past year. The Council says it is unclear how this fault can be said to have caused specific problems experienced by Z during the past year including exclusion, particularly with regard to records of his annual review in October.
  4. Whatever the specific behavioural consequences of this fault, it caused loss of educational provision set out as being essential in Z’s EHCP. This was the provision the law required Z to get, as the Council pointed out to its provider. We have recommended a financial remedy for injustice caused to Z missing out on this therapy. We recommend an additional remedy for Mrs X who has had to continually raise her concerns with the Council.
  5. This year’s annual review was completed in October 2018. Mrs X has not had a formal written decision from the Council regarding this review, now some three months later. Councils must notify the parent of their decision within four weeks of an annual review meeting. This delay is fault.
  6. Z’s current EHCP with the specific provision is therefore still in place and the Council still has the non-delegable duty to secure provision of the SALT provision it sets out. The Council should ensure this is now put in place as a matter of urgency and that it continues to be provided until any review changes the EHCP, in which case Mrs X would have the right of appeal to the tribunal.
  7. The Council should also provide Mrs X and the Ombudsman with evidence to show how it has learnt from her complaint in developing new commissioning arrangements for its SALT service. It should ensure all providers are aware that specific, quantified provision set out in an EHCP is not negotiable and must be delivered.

Agreed action

  1. Within one month of my final decision the Council will:
    • Apologise to Mrs X and to Z for failing to secure delivery of the therapy required by Z’s EHCP
    • Pay Mrs X £3,000 as a remedy for injustice caused by its failure to ensure delivery of the SALT required by Z’s EHCP. She can use this for Z’s educational benefit to ensure he catches up, as far as possible, on therapy he has missed out on.
    • Pay Mrs X an additional £250 for time and trouble caused by having to continue to raise the problem with the Council.
    • Ensure Z gets the specific SALT as required by his EHCP without delay
    • Complete documentation for Z’s annual review and issue its decision letter, giving Mrs X the relevant right of appeal against any decision.
  2. Within three months of my final decision the Council will:
    • Provide Mrs X and the Ombudsman with an explanation for how it has learnt from her complaint in designing new commissioning arrangements for the SALT service.
    • Provide guidance it has given any providers regarding the requirement to deliver what is set out in a final EHCP.

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Final decision

  1. I have completed my investigation. I have found fault causing injustice. The Council has agreed to carry out actions to remedy this.

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Investigator's decision on behalf of the Ombudsman

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