Shropshire Council (19 020 440)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 22 Feb 2021

The Ombudsman's final decision:

Summary: Mrs C complained the Council failed to ensure her son, D, received the provision specified in his Education, Health and Care Plan (specifically, speech and language provision). She says that its fault caused D to miss a service he should have had and caused time and trouble to her having to chase the Council to see that the service was provided. She says the Council also delayed issuing an Education, Health and Care Plan for D and delayed finding him a new school. There is evidence of fault and the Council has agreed to apologise and to make appropriate payments.

The complaint

  1. The complainant, whom I shall call Mrs C, complains that the Council failed to ensure her son, D, received appropriate speech and language provision as set out in his Education, Health and Care Plan (EHCP) delayed finding him a new school place and failed to keep to statutory timescales in finalising an amended EHCP. She says this caused her time, trouble and distress and that D did not receive speech and language therapy that he should have had.

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The Ombudsman’s role and powers

  1. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  2. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  5. 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)
  6. 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.
  7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  8. 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 considered the information provided by Mrs C with her complaint. I also spoke to her on the telephone. I made enquiries of the Council and assessed its response. I have accessed the website of the Independent Provider of Special Education Advice (IPSEA) and considered the Children and Families Act 2014. I sent Mrs C and the Council a copy of my draft decision so I could take any comments they made into account before issuing a decision.

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What I found

Background

  1. D has an Education, Health and Care Plan (EHCP) setting out a range of special educational needs.
  2. At the time of the matters complained of, he attended a special school, which I have called School A.
  3. Section F of D’s EHCP says he should have speech and language therapy delivered 1:1 by a suitably trained member of staff in school for two sessions of thirty minutes daily.
  4. The Council has a legal duty to ensure that the special educational provision specified in section F of an EHCP is delivered (this is set out in section 42 of the Children and Families Act 2014). The Council must do whatever is necessary to ensure the provision is made, even if this means it has to pay for it privately. It is also part of the Council’s legal duty to ensure that staff meant to deliver intervention have the correct financial resources, training and equipment to do so.
  5. From September 2020 D has attended School F.
  6. I am considering this complaint from March 2018.

What happened

  1. The Council says Mrs C first expressed concerns about School A in March 2018. It says these concerns were not about provision but about school organisation, which, as a school matter, was not something the Council had influence over.
  2. D’s EHCP was issued in June 2018. Mrs C had three months in which she could have gone to SEND if she was unhappy with D’s placement at School A because of its failure to provide SALT. That period of time is outside the Ombudsman’s jurisdiction.
  3. Mrs C told the Council she was concerned about the speech and language provision being given to D in July 2018. She engaged a barrister to pursue this on her behalf. She says she had to do this because the Council was not replying to her. I consider it was her choice to decide to engage a barrister and not because of Council fault. The barrister told the Council about the concern on 30 July. I have seen further emails between the Council and Mrs C in September 2018 with her highlighting D was not receiving speech and language therapy. There was no clear resolution to Mrs C’s concerns over this time.
  4. Mrs C sent an email to the Council on 17 September saying, ‘Unfortunately D still isn’t having the clearly stipulated speech and language sessions due to School A arguing that they are unable to carry this out’. The Council did not raise this with the school.
  5. The notes of the December 2018 Annual Review of D’s EHCP do not highlight any specific concerns and concluded D was making ‘good progress’. There is nothing in the notes of the meeting to say Mrs C expressed concerns about the actions of the school. On the balance of probabilities, because Mrs C had highlighted concerns with the Council beforehand, and there is no evidence of resolution before the meeting, she would have continued to express concern that D was not receiving the speech and language therapy even if this was not minuted.
  6. In February 2019, the Council told Mrs C it was intending to maintain D’s EHCP and to carry on naming School A. Mrs C had further rights to go to SEND if she disagreed. The period of three months when she had recourse to SEND is outside the Ombudsman’s jurisdiction.
  7. In April 2019, Mrs C sent a further email to the Council in relation to staffing at School A. Because there was no constant teaching assistant in D’s classroom, she was concerned staff could not deliver the necessary speech and language intervention. She felt new teaching assistants would not be familiar with D or with the intervention required; they may not have had appropriate training. The Council said it would continue to work with the family. It had also sent consultation papers to School E and two other schools by this time, with a view to changing D’s placement from September 2020.
  8. The Council suggested the family discussed concerns with the headteacher, or make a formal complaint to the school, and to contact its advice service to get support. This was appropriate although it was the Council’s responsibility to ensure provision specified in an EHCP is being delivered.
  9. On 27 October 2019, Mrs C submitted a formal complaint to the Council to say D was not getting the speech and language provision set out in Section F of his EHCP. On 11 November Mrs C sent an additional email to say she had seen a plan for D’s speech and language therapy but that it failed to address who would deliver it, where it would be delivered or the time of day it would be delivered. She also pointed out to the Council that the speech and language therapist highlighted D had made ‘insignificant progression’.
  10. The Council responded on 28 November to say a senior officer would meet again with the school. It followed this with a letter dated 29 November. It said it had met with the school in July and October 2019. The Council ‘had been assured that the provision will be put in place’. It acknowledged Mrs C’s concerns. A senior officer said she would meet again with the headteacher. There is no evidence the Council updated Mrs C in July or October 2019 to say the provision was in place.
  11. A senior officer met with School A again in December and also shared the outcome with Mrs C on 17 December. She said School A’s view was; “1:1 provision had not been delivered for a short period of time toward the end of the Summer term and the start of the Autumn term 2019 (but) that the provision had been reinstated by 1 October”.
  12. D’s annual review took place on 12 December 2019. This brought up D’s speech and language input suggesting provision was now in place. Amendments to Section F of the EHCP were recommended to allow shorter bursts of 1:1 speech and language intervention throughout the day.
  13. The Council did not receive the completed paperwork from the review until February 2020. This meant it could not issue an EHCP within the eight-week timescale.
  14. The Council issued a proposed amended plan on 6 March 2020, very soon after it received the relevant paperwork. A further proposed EHCP was issued on 20 March and a final plan naming School F was issued on 24 March 2020.
  15. Because that was the start of the lockdown period, the Council felt it would be appropriate for D to stay at School A until he could make a ‘proper’ transition to School F in September 2020.

What should have happened

  1. Following the issue of D’s EHCP, I have seen evidence that Mrs C expressed dissatisfaction with School A’s failure to deliver provision from July to December 2018 (although part of that time is out of jurisdiction as Mrs C had tribunal rights and could have asked for a different placement). Although the Council has no jurisdiction to tell schools how to manage personnel, it does have a duty to ensure provision in Section F of EHCPs can be made. Part of this duty is for it to satisfy itself available personnel can deliver the specified provision. I have no evidence provision was being made at this point, or that the Council checked that it could be, and I am finding the Council at fault.
  2. Once the Council knew about Mrs C’s concerns (from July 2018), it should have met with the school as soon as possible. Because of school terms this might have been in September 2018 rather than in July and October 2019. This is fault. The Council may have been able to resolve the matter sooner. I have no evidence to show the provision was being made for D between September to January 2019; a period of 5 months. This is fault.
  3. I have seen further evidence that Mrs C continued to complain to the Council about the lack of provision through 2019. I am not considering the time between February and May 2019 when Mrs C had appeal rights to SEND. Her concerns, over this time, centred on whether the school could deliver the speech and language provision given the staff turnover. There were many opportunities for the Council to assure Mrs C the provision was being made but this was not done. I therefore have no assurance D was receiving the provision in June and July 2019 - a period of 2 months. This is fault.
  4. Similarly, I cannot say whether the provision was made in September or October 2019 although the Council subsequently said it had met with the school in July and October. It did not tell Mrs C the basis upon which it was satisfied the provision was being delivered. In the absence of any evidence, I am finding the Council at fault for these two additional months.
  5. When the Council responded to Mrs C’s formal complaint on 29 November 2019 it said it had sent consultation papers to School E and School F, which it had done. In 2019 it had also consulted two additional schools but they had not offered a place to D. That is not fault.
  6. The Council met again with School A in December 2019. The letter it sent to Mrs C later that month goes into more detail about how it satisfied itself the provision was being made. I consider the Council had good grounds to think the provision was in place for December. It said in the letter that D had been receiving speech and language intervention ‘for some weeks’ by that point, although that is not specific. I am not making a finding of fault for November or December 2019. Mrs C said she was still concerned at Annual Review the provision was not being met; she followed up with a meeting at the school in January to highlight the ‘inconsistent staffing’ that D’s class was receiving. I do not consider that this automatically meant D’s SALT could not be delivered. Although Mrs C said she had additional evidence that would confirm C was not receiving SALT in November and December, she did not provide it although I asked her to do so.
  7. The Council was late in developing an EHCP following December’s Annual Review. It should have made sure paperwork was returned by the school in good time. This is fault. The Council has apologised, which is appropriate. The Council has told me what action it takes to ensure papers are returned by schools and what action it took here. I do not consider asking the Council to take further action is necessary. I note that School E made an offer in January 2019 but Mrs C wanted a place at School F, which was written into C’s final EHCP in 2020.
  8. Mrs C has not complained to us about D transitioning to the new placement in September 2020 although she continued to be unhappy with School A. I am not investigating this.
  9. Mrs C has also complained to us about the Council’s complaints handling. There was delay before the Council took appropriate action to address her concerns with the school. On the balance of probabilities, it is likely D missed provision because of this. This is fault and it caused Mrs C time, trouble and distress.

Agreed action

  1. For the Council to apologise to Mrs C for the fault identified here within a month of the date of my decision.
  2. For the Council to make a payment of £400 for Mrs C’s time, trouble and distress for failing to address her complaints once it became aware of concerns within three months of the date of my decision.
  3. For the Council to make a payment of £900 for D’s missed speech and language therapy over a period of nine months within three months of the date of my decision.

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Final decision

  1. Fault leading to injustice and actions to remedy the injustice have been agreed.

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Investigator's decision on behalf of the Ombudsman

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