Norfolk County Council (23 005 064)
The Ombudsman's final decision:
Summary: Ms X complained the Council implemented an unlawful policy to temporarily provide 50% of the speech and language therapy needed in Education Health and Care Plans. We found fault by the Council because it implemented an unlawful policy and did not meet its statutory duty to provide the required provision. This caused Ms X’s child, Y, an injustice because they missed provision. It also caused Ms X avoidable frustration, distress and time and trouble in pursuing an end to the policy and complaining. The Council agreed to make Ms X payments in recognition of Y’s missed provision and the injustice caused to her.
The complaint
- Ms X complained the Council implemented an unlawful policy to provide 50% of the Speech and Language Therapy (SALT) needed in the Education Health and Care plans of children and young people in its area. This included Ms X’s child.
- Ms X took legal action against the Council regarding its policy, and she would like the Council to reimburse the costs she incurred in doing so. She would also like the Council to provide the provision her child missed because of the policy and reassurance that it will not make unlawful policy decisions in future.
The Ombudsman’s role and powers
- 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)
- 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
- The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
- If we are satisfied with an organisation’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)
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated
- The Ombudsman will not investigate late complaints unless there are good reasons to do so. Ms X knew about the matters complained about for more than 12 months before approaching us and so her complaint is late. However, she was pursuing a complaint with the Council throughout this time and so I consider there are good reasons to exercise discretion and investigate this matter now.
- I have investigated Ms X’s concerns about the Council’s decision to introduce an unlawful policy. I have also investigated the SALT provision missed by Y because of the policy. I have considered the provision missed from the date the policy was implemented to the date the Council issued a new final EHC Plan for Y.
- I have not investigated SALT provision for Y from the date the right of appeal to their new EHC Plan started to the Tribunal’s decision. The issue of SALT provision was the substantive matter considered in the appeal and so we cannot investigate this period.
How I considered this complaint
- As part of my investigation I:
- Discussed the complaint with Ms X and considered information she provided;
- Made enquiries of the Council and considered its response;
- Considered the relevant law and guidance;
- Considered the Ombudsman’s guidance on remedies; and
- Set out my initial thoughts on the complaint in a draft decision statement and considered Ms X and the Council’s comments.
What I found
- 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 Council is responsible for making sure that arrangements specified in the ECH plan are put in the place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided.
- The ECH plan is set out in sections. Section F details the educational provision needed by the child or young person.
- The Council has a duty to secure the specified special educational provisions in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable.
What happened
- Ms X has a child, Y, who in September 2021 had an EHC plan. Section F of their EHC plan set out the provision Y is entitled to. This included one session of 1:1 direct therapy from a qualified speech and language therapist each month.
- In September 2021 the Council contracted a new provider to deliver its SALT provision. At this time the Council had a backlog of cases awaiting SALT assessments and cases awaiting allocation to a therapist.
- To address the backlog of cases the Council and its provider implemented a temporary policy whereby it would provide 50% of the SALT needed in EHC plans.
- The Council did not directly tell parents or carers of affected children or young people about the policy.
- Ms X became aware of the policy. She asked the Council for a copy of the policy, but it did not provide one.
- In December Ms X took legal action against the Council regarding its policy to only provide 50% of SALT needed in EHC plans. She incurred costs of £480.
- In January 2022 the Council’s solicitor considered the matter and conceded the policy meant the Council was not meeting its statutory duties. The Council revoked the policy.
- Also in January, Y was issued with a new EHC plan which proposed to reduce the SALT provision in their plan. Ms X appealed this to the SEND tribunal.
- Unhappy with the Council’s actions Ms X complained to the Council about its policy decision. The complaint was received by the Council in late January 2023 because of confusion about how Ms X should complain. Ms X sought:
- A written apology from the Council to all children and young people affected by the policy;
- Reassurance the Council would not knowingly implement an unlawful policy denying children and young people the support they are entitled to;
- Reimbursement of her legal fees; and
- Compensation for the loss of SALT provision for Y and for the distress caused by the policy.
- In March 2023 the Council replied. Its response:
- said there were no grounds for it to reimburse Ms X’s legal fees; and
- apologised for its decision to implement a policy which meant it was not meeting its statutory duties. It said it reversed its policy once it realised and this should reassure Ms X that it would not make a similar decision in the future.
- Ms X remained unhappy and complained to us.
- In response to our enquires the Council said:
- it took the decision to implement the policy to provide 50% of the SALT needed in EHC plans on a temporary basis. The intention of the policy was to allow it to address a backlog of cases awaiting assessment or allocation to a therapist, thereby providing a SALT service to a greater number of children for a time limited period.
- The policy was introduced in September 2021. Ms X did not complain until over 12 months later. It said that did not consider it would have a positive impact on Y to provide them with provision missed over a year ago.
- It had received clinical advice that it would not be beneficial to provide missed provision to those affected now, given the time that has passed since the policy was revoked and full provision reinstated.
Finding
- The Council has a duty to secure the SALT needed in EHC plans. The policy decision to provide 50% of SALT needed in plans was unlawful and meant the Council failed to fulfil its statutory duty. This is fault by the Council.
- The Council’s decision to implement the policy meant Y only received half of the monthly 1:1 direct SALT provision in their EHC plan between September 2021 and January 2022. I consider this caused Y an injustice because they missed provision they were entitled to.
- The Council says that it is not appropriate to provide a remedy for the provision Y missed because Ms X made her complaint more than 12 months after the policy was introduced. However, Ms X’s attempts to complain were frustrated by a lack of clarity about how to complain. Ms X’s complaint would have been made sooner if this confusion had not happened. For this reason, I consider the Council should remedy the injustice caused to Y.
- Because of the unlawful policy implemented by the Council other children and young people also missed out on 50% of the SALT needed in their EHC plans. This is fault by the Council.
- However, I am not proposing the Council offer a personal remedy to those affected. This is because the Council reinstated full SALT provision by summer 2022. I consider it is reasonable to expect those affected by its unlawful policy to have complained to us within 12 months of knowing they were affected.
- The Council did not directly tell the parent and carers of those affected about its policy decision to temporarily reduce SALT provision. It should have directly contacted those affected about a significant change. The Council should communicate important policy decisions clearly and transparently. The Council’s failure to do so is fault.
- The Council’s actions in this matter necessitated Ms X making a complaint and caused her the avoidable time and trouble of doing so. She was also caused frustration and distress because the Council did not tell her about the policy directly. Therefore, I consider Ms X has been caused an injustice.
- Ms X also incurred costs because she took legal action against the Council, and she would like it to reimburse her costs. The Ombudsman will not normally ask the Council to reimburse such fees.
Agreed action
- To remedy the injustice caused by the above fault the Council should take the following action:
- Pay Ms X £200 for each month Y did not receive the 1:1 direct SALT support in their EHC plan. I calculate that a 50% reduction in this support in the period I have investigated means Y missed sessions for three months and so the Council should pay Ms X £600 in total. This figure is in keeping the Ombudsman’s guidance on remedies.
- Pay Miss X £200 in recognition of the time and trouble caused to her in trying to get the Council to fulfil its statutory duties to Y and in pursuing information and complaints about this matter. This figure is in keeping with the Ombudsman’s guidance on remedies.
The Council should provide the above remedy within one month of my final decision.
- Within three months of my final decision the Council should undertake a written review of its decision to implement a policy which was unlawful. The review should explain what actions the Council will take to make sure future policies are checked for compliance with its statutory duties. It should also explain how it will tell parents and carers about policy decisions which impact the delivery of provision needed in EHC plans.
- The Council should provide us with evidence it has complied with the above actions.
Final decision
- I have completed my investigation. There was fault causing injustice which the Council has agreed to remedy.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman