Summary: The Council failed to ensure Ms X’s grandson received the Speech and Language Therapy (SALT) support required under his Education Health and Care Plan. The Council has agreed to apologise and make a payment to recognise the child’s loss of opportunity to have access to the SALT support.

The complaint

1. Ms X complained that the Council has failed to ensure her grandson received the Speech and Language Therapy support required under his Education Health and Care (EHC) Plan from April 2016. She complained on behalf of her daughter and son-in-law, Mr and Mrs P.

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What I have investigated

2. I have investigated the period from September 2016 when the Council issued the final EHC Plan. I explain at the end of this statement why I have not investigated events from April 2016.

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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. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

7. 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 shared my draft decision with the Council and Ms X and considered the responses I received.
8. Ms X is complaining about events dating back to April 2016. I was able to investigate matters from 2016 because Ms X says she only found out in 2018 that her grandson may not have received the support he should have had in 2016. She complained to the Ombudsman within 12 months of finding out.
9. 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

Education, Health and Care Plans

10. 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.
     
11. Councils must review EHC Plans at least every 12 months, but may hold an emergency review earlier.
12. Local authorities have a duty to secure the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)

What happened

13. Ms X’s grandson, Y, has a diagnosis of autism. Y has significant social communication difficulties, and language and developmental delay. He is largely non-verbal. While he was at nursery (‘the Nursery’) he received a high level of specialised 1:1 support.
14. The Council started an EHC assessment in May 2016 at the request of Y’s parents and the Nursery. This included a Speech and Language Therapy (SALT) report produced in June 2016. The report identified significant speech and language difficulties and a need for a high level of support. It said the support needed would generally be available in a specialist school setting, but may need to be specifically purchased in a mainstream school. The report recommended that a SALT therapist should review Y’s progress every half term and provide advice and support to school staff.
15. The Council completed the EHC assessment and issued the final EHC Plan in September 2016. The EHC Plan named a mainstream primary school, School 1, which was Y’s parents’ preference. Y started at School 1 in September 2016. His EHC Plan included the following provision:
• programmes to assist development of his communication skills, working alongside the SALT Service and to be delivered by a suitably trained Learning Support Assistant (LSA);
• a SALT therapist to review his progress at least six times a year in order to offer ideas and advice to classroom staff about how to develop his skills.
16. By the end of the autumn term 2016 School 1 felt it could not meet Y’s needs and he needed a specialist placement. Y’s parents agreed to an Early Review meeting which took place in January 2017. School 1 provided a detailed report about Y’s progress setting out the difficulties he was having in a mainstream school setting. It recommended a move to a specialist school.
17. There was further work done following the review meeting, obtaining professional reports and visiting and consulting special schools. The Council’s SEN Panel considered the case in March 2017. It decided the Council should consult School 2, a specialist school, for a place for Y from September 2017 and that he should remain at School 1 for the rest of the academic year.
18. In May 2017 School 2 confirmed it could meet Y’s needs and it had a place available. Y started at School 2 in early June 2017.
19. In June 2017 School 1 sent the Council a report explaining the support it had provided to Y while he was there.
20. During this time Ms X was asking the Council for details of what School 1 had done to put in place the support set out in Y’s EHC Plan. At first the Council said it would obtain the information from School 1. Later it advised Ms X that she should contact the School for the information herself. In June 2017 Ms X made a complaint to the Council, saying it had obstructed her attempts to get the information about the provision for her grandson. She also complained that the Council had not sent the EHC Plan to School 1 which meant staff had had to teach Y without the guidance of a Plan.
21. The Council confirmed it had sent School 1 a copy of the draft and final EHC Plan. However Ms X was not satisfied with the Council’s response to her complaint as it continued to maintain that it was the School’s responsibility, rather than the Council’s, to ensure the support in an EHC Plan was put in place.
22. Ms X complained to the Ombudsman. We investigated the complaint and made a decision in June 2018. We found that the Council had the ultimate responsibility for implementing the provision in the EHC Plan and should have provided Ms X with the information she was asking for. The Council agreed to our recommendation to apologise to Ms X and make a payment to her to recognise her frustration and her time and trouble in making the complaint. It also agreed to provide her with a copy of School 1's report of June 2017.
23. The Ombudsman’s decision noted that Ms X had not made a formal complaint against the Council about failure to put in place the provision in Y’s EHC Plan. It said if she wished to do so she would need to make a complaint to the Council first. Then if she was not satisfied she could complain to the Ombudsman again.
24. At some point in 2018, although I am not clear when, Ms X saw a copy of a letter from Y’s consultant paediatrician, Dr C, to Y’s GP dated August 2017 following a visit to her clinic. The letter included the following statement:

“[Y] was last seen by the speech and language therapy team in April 2016. I understand now after investigating, that after this appointment the speech and language therapist had tried to make contact with family to arrange follow-up and was unable to , so [Y] was discharged from speech and language therapy in April [2017]”.

25. Ms X made a complaint to the Council that SALT support set out in Y’s EHC Plan had been withdrawn. She says the Council told her it would put her complaint on hold until September 2018 after the school holidays. After further correspondence with the Council and the Ombudsman the Council responded to Ms X’s complaint. It said it had spoken to staff at School 2 and checked its records and reports from the SALT therapist dated October 2017 and March 2018. It said it had no evidence that SALT support had been withdrawn. From the information it received it said it was confident Y was receiving the support he needed as set out in his EHC Plan.
26. Ms X was not satisfied with the response as she said she had not received any evidence to confirm her grandson was receiving the SALT provision in his EHC Plan.

Council’s response

27. At first the Council provided evidence of the support provided since Y started at School 2, and information about help he was receiving at the Nursery before he had an EHC Plan. It said it could not obtain information about provision at School 1 while the School was closed for the summer holidays. It has since provided further details of support with language and communication Y received at School 1.

Analysis – was there fault causing injustice?

28. I cannot consider the period before the Council issued the final EHC Plan as this is outside the Ombudsman’s remit, as explained at the end of this statement. So I have not considered the period April to September 2016. I am satisfied from the evidence provided that once Y started at School 2, a specialist placement, in June 2017 he received the SALT support set out in his EHC Plan.
29. I have therefore considered the period from September 2016 to June 2017 when Y was at School 1. This is the key period Ms X is concerned about. It is important to note that the EHC Plan did not require Y to have direct SALT sessions with a therapist. The role of the SALT therapist was to work alongside a suitably trained LSA who would deliver the programme, to offer advice and support to staff, and review Y’s progress every half term.
30. The documents provided show that during Y’s time at School 1 he received extensive support from a “highly skilled” LSA, as required. It is also clear that there was a focus on language and communication. There were discussions about introducing a visual communications scheme, PECS, when Y first started at School 1. But on the advice of the Nursery and the SALT therapist who had been involved when Y was there, School 1 and other professionals decided Y was not ready for this method yet. The School would keep it under review.
31. There were further discussions about this during the course of the year. The School also had visits from an Early Years Advisor who gave advice to the LSA and class teacher about the best approach to language, speech and communication teaching for Y. However I have not seen evidence of any input from a SALT therapist. The documents show the following.
• The initial ‘provision plan’ for School 1 noted that Y needed 1:1 support at all times. It set out the type of help needed with speech and language but did not mention a SALT therapist.
• At the visit from Early Years Advisor in October 2016 to observe the LSA’s work on communications with Y, she referred to PECS. She said “this is an intervention that needs some training to achieve so staff need to find out who is the Speech Therapist and contact them for further advice”.
• At the next visit from the Advisor in January 2017 she discussed introducing PECS and explained what it was. She recommended that the School discuss introducing the scheme with the Speech Therapist “asap”.
• At the Annual Review meeting of Y’s EHC Plan in late January 2017, the SALT therapist was not present and had not submitted a report. The notes of the meeting say “we have yet to have involvement from SALT to provide us with the appropriate training for PECS”.
32. In my view this evidence indicates strongly that the Council had not provided the input from a SALT therapist required in the EHC Plan by at least the end of January 2017. Y had been at School 1 for around ten months by this time. The Council has not provided copies of the half-termly review visits, as requested. The Council has not provided evidence that the SALT service was involved. I find it was at fault in failing to put the provision in place.
33. I do not consider it is possible for the Ombudsman to say what impact this lack of input had on the direct support Y received. The evidence shows he received a great deal of support with his speech and language and communication skills. Also Mr and Mrs P, the School and the Early Years Advisor noted how settled Y was and how beneficial his relationship with the LSA was. Mr and Mrs P agreed this had helped their son make progress with his communication skills. The main problem noted was that he needed a specialist school placement. In its end of year report School 1’s view was that a specialist setting would be more suitable to meet Y’s needs. But it felt his time at School 1 had “provided him with the stable foundations on which to flourish in the next stage of his education”.
34. I cannot say whether Y would have made more progress with the intervention of a SALT therapist as set out in the EHC Plan, rather than with advice from the Early Years Advisor. But he missed out on the opportunity to have support from staff who would themselves have been supported and advised by a professional SALT therapist. The family is left not knowing what difference this would have made. In my view the Council should apologise for and recognise this loss of opportunity.
35. The Council has now confirmed and provided evidence that it sent Ms X a copy of School 1’s report of June 2017.
36. If Ms X wishes to complain further about the SALT service discharging Y, she will need to ask Dr C for more details of where she got the information from and if necessary complain to the relevant health body.

Agreed action

37. To remedy the injustice caused the Council has agreed to take the following action within one month of the final decision on this complaint:
• send a written apology to Ms X and Mr and Mrs P for failing to ensure the SALT provision in Y’s EHC Plan was put in place between September 2016 and June 2017;
• pay the family £400 to recognise the loss of opportunity to have indirect access to this specialist support and the anxiety of not knowing what difference it would have made. This sum should be used for the benefit of Y’s education.

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Final decision

38. I have found that the Council was at fault in failing to ensure the SALT provision in Y’s EHC Plan. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Parts of the complaint that I did not investigate

39. I did not investigate speech and language support Y received before September 2017. This was when the Council issued his EHC Plan and became responsible for putting in place the extra support in the Plan. Before this it was for Y’s school placement to provide special educational needs support. The Ombudsman has no jurisdiction to investigate internal school matters.

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Investigator's decision on behalf of the Ombudsman