Norfolk County Council (23 019 894)
The Ombudsman's final decision:
Summary: Mrs Y complained the Council implemented an unlawful policy to temporarily provide 50% of the speech and language provision in Education Health and Care Plans. We found fault by the Council because it implemented an unlawful policy and did not meet its statutory duties. This caused Mrs Y avoidable time and trouble in pursuing an end to the policy and complaining. The Council agreed to make Mrs Y a symbolic payment in recognition of the injustice caused to her.
The complaint
- Mrs Y complained the Council implemented an unlawful policy to provide 50% of the Speech and Language Therapy (SALT) needed in the Education Health and Care (EHC) plans of children and young people in its area.
- Mrs Y 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 reassurance from the Council 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)
- 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).
How I considered this complaint
- As part of my investigation I;
- Considered Mrs Y’s complaint;
- Made enquiries of the Council and considered its response
- Considered the relevant law and guidance;
- Considered the Ombudsman’s guidacne on remedies; and
- Set out my initial thoughts on the complaint in a draft decision statement and considered comments from Mrs Y and the Council.
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
- Mrs Y has a child with an EHC plan. Their plan contained SALT provision.
- 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 allocation to a therapist.
- To help it reduce the backlog of cases the Council and its provider implemented a temporary policy throughout its area where it would only 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.
- Mrs Y became aware of the policy. While her child did not miss SALT provision in their plan she was concerned about the policy and employed lawyers to start legal proceedings against the Council. She incurred costs of £480.
- The Council’s solicitor considered the matter and conceded the policy was unlawful and so it was not meeting its statutory duties. It revoked the policy.
- Mrs Y was unhappy with the Council’s actions and complained to it. The complaint was received in late January 2023 because of confusion about how she should complain. Mrs Y 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; and
- Reimbursement of her legal fees.
- In March 2023 the council replied. Its response:
- said there were no grounds for it to reimburse Mrs Y’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 Mrs Y that it would not make a similar decision in the future.
- Mrs Y remained unhappy and complained to us.
- In response to our enquiries the Council said:
- it took the decision to implement the policy reducing the SALT needed by 50% on a temporary basis. The intention of the policy was to allow it to address a backlog of cases awaiting assessment or allocation for a therapist, thereby providing a SALT service to a greater number of children for a time limited period.
- 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 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.
- The Council had 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.
- Mrs Y’s child did not miss any SALT provision in their plan because of the policy and so, I do not consider her child incurred an injustice.
- The unlawful policy implemented by the Council meant that other children and young people missed up to 50% of the SALT needed in their EHC plans until the policy was revoked and full provision reinstated. 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 parents 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 Mrs Y making a complaint and caused her the avoidable time and trouble of doing so. She was also caused frustration and distress because of the confusion about how to complain. I consider Mrs Y has been caused an injustice.
- Mrs Y 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 to Mrs Y the Council should, within in one month of my final decision, make her a symbolic payment of £200 in recognition of the time and trouble caused to her in pursuing an end to the policy and her subsequent complaint. This figure is in keeping with the Ombudsman’s guidance on remedies.
- 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