The Ombudsman's final decision:
Summary: the Council is at fault in failing to ensure that full speech and language support detailed in Y’s Education, Health and Care Plan was not provided between January and June 2019. This caused Y injustice that the Council will recognise by apologising and making a payment of £600. The Council also failed to amend Y’s this Plan following an annual review in May. This amounts to fault but this did not cause injustice.
- The complainant, whom I shall refer to as Mr G, says Suffolk County Council has failed to ensure that speech and language therapy support detailed in his daughter, Y’s, Education, Health and Social Care Plan has been provided since the family moved to the area around September 2018.
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 considered the written information Mr G provided with his complaint and discussed the complaint with him. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
- I gave the Council and Mr G the opportunity to comment on my draft decision and took account of the responses I received 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
What should have happened
- 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 EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this. We can consider the other sections of an EHC plan.
- 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.
- Paragraph 9.157 of statutory guidance on Special Education Needs provision states that where a child moves to another local authority, the 'old' authority must transfer the EHC plan to the 'new' authority.
- Upon the transfer of the EHC plan, the new authority becomes responsible for maintaining the plan and for securing the special educational provision specified in it.
- The statutory guidance confirms that EHCPs must be reviewed at least once every 12 months. The guidance says that the Council’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting.
- The statutory guidance goes on to detail from paragraph 9.193 how amendments to an existing EHC plan should be carried following a review, or at any other time a local authority proposes to amend an EHC plan other than as part of a re-assessment.
- Paragraph 9.194 says that where the council proposes to amend an EHC plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. It says the child’s parent should be informed that they may request a meeting with the council to discuss the proposed changes.
- Paragraph 9.195 confirms the parent must be given at least 15 calendar days to comment and make representations on the proposed changes, including requesting a particular school or other institution be named in the EHC plan.
- Paragraph 9.196 says that after receiving any representations from the child’s parent, if the council decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice.
- A Special Educational Needs Co-ordinator (SENCo) is a teacher who co-ordinates the provision for children with special educational needs or disabilities in schools.
- Mr G and his family moved to Suffolk in the summer of 2018 and Y started attending a special needs school there in September 2018. The school is for children with severe learning difficulties and disabilities and has speech and language therapists on site. All children attending the school have an EHC plan. Y had an EHC plan and this was transferred to her new school.
- Provision related to speech and language in the EHCP that transferred to Suffolk from her former council area stated:
- the school’s SENCo should ensure that all staff working with Y should be aware of the advice of the Speech and Language therapist on developing Y’s speech and alternative communication;
- the SENCo would ensure staff working with Y were trained and understood the impact her speech and language difficulties had on her understanding, social interaction and ability to access the curriculum. The SENCo would ensure that key staff working with Y are trained in using Makaton which is to be used as part of a programme of a variety of different communication methods to be used with Y;
- there were also a number of tasks for the class teacher to undertake to support Y’s speech and language including, for example, using visual prompts and cues alongside verbal instructions, consistent use of key vocabulary.
Mr G’s complaint to the Council
- Mr G complained to the Council in the summer of 2019 and the Council provided a written response to this in June 2019. In its response the Council said that the head teacher said there had been some “staffing gaps” but said these had been resolved and that suitably trained staff were “now” in school supporting Y. The Council agreed that it would hold an early annual review to discuss any ongoing concerns about the delivery of the support detailed in the plan. The Council has told me it has no information on how this gap in staffing affected provision of Y’s speech and language provision between January and June 2019.
Was the Council at fault and did any fault cause injustice?
- In the Council’s response to Mr G’s complaint, it refers to the school’s comments that there had been staffing gaps which had been resolved by the employment of suitably trained staff around June. So, that seems to confirm that from June sufficient suitably trained staff were in place but not for the January to June period before then. This, in turn, strongly suggests that the provision for Y was not fully made between January and June. I have asked the Council to provide clarity on this but it says it is unable to do this. Whilst I accept the school’s point that speech and language support is “embedded throughout the curriculum” as the school is a specialist provision the acceptance of a lack of suitably qualified staff until June 2019 significantly undermines this claim in terms of provision before that time. I therefore consider the Council is at fault in failing to ensure that the speech and language provision detailed in Y’s EHCP was fully delivered between January and June 2019. This caused Y injustice as it means she missed out on provision that she needed during that time. I consider the available information implies that the provision was being made from June when the staffing was in place and also that a further assessment to refine provision since then was undertaken in September 2019 and the headteacher has confirmed that provision is in place. There is no evidence that the provision was not made for the period between September 2018 and January 2019.
- The Council delayed in issuing the amended EHCP following the annual review in May. This amounts to fault. This delay in issuing the amended plan meant that Mr G’s opportunity to appeal to the Tribunal was delayed if he was dissatisfied with the proposed amendments. I note however that the notes of the annual review meeting state that Mr G did not consider any changes or improvements were needed so it seems unlikely that he was caused injustice as a result of this delay. As no changes to provision were identified, it does not seem that the delay resulted in Y missing out on any updated provision.
- The Council will apologise and pay Mr G £600 to recognise the non-provision of part of Y’s EHCP provision between January and June. In recommending a payment of £600, I took account of our guidance on remedies which recommends a usual payment of between £150 and £600 a month for non-provision of special education provision. In this case I recommended £100 a month because while there is no evidence that Y was provided with the particular specialist provision identified in her EHC Plan between January and June 2019, Y is in a specialist educational setting including for children with communication difficulties so I accept that these needs were generally being provided for even taking account of staff shortages during the identified period.
- The Council will issue the agreed apology and payment within one month of the date of the final decision on the complaint.
- The Council is at fault in failing to ensure that specific speech and language support detailed in Y’s EHC Plan was properly provided between January and June 2019. This caused Y injustice that the Council will recognise by apologising and making a payment of £600. In addition, the Council failed to amend Y’s EHC Plan following an annual review in May. This amounts to fault but this did not cause injustice.
Investigator's decision on behalf of the Ombudsman