Summary: Mrs D complained about the way the Trust, which was commissioned by the Council, decided to provide the speech and language therapy set out in her child’s education, health and care plan. The Trust did not follow the plan as set out but offered initial intensive support with a view to changing the plan. The Council had overall statutory responsibility for the plan and ensured it was not changed in line with Mrs D’s wishes. Mrs D wanted the Trust to carry out an equality impact assessment on its policy relevant for speech and language therapy. The Ombudsmen will not investigate this complaint as they cannot add to the investigation already completed.

The complaint

1. The complainant, who I shall call Mrs D, complains about the way Kent Community Health NHS Foundation Trust (the Trust), which was commissioned by Kent County Council (the Council), provided speech and language therapy to her child, Y from October 2018. Mrs D says decisions made by the Trust’s therapist was not in accordance with the provision set out in Y’s Education Health and Care Plan. She says the Trust was wrong to decide Y’s speech and provision would end in March 2019. Mrs D says the Trust failed to complete an equality impact assessment of its speech and language therapy policy in line with the Equality Act 2010.
2. Mrs D claims she and her husband were prevented from challenging the Trust’s decisions because of a lack of openness and transparency.

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The Ombudsmen’s role and powers

3. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
4. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1)).
5. The Ombudsmen provide a free service but must use public money carefully. They may decide not to start or continue with an investigation if they believe:

it is unlikely they could add to any previous investigation by the bodies. (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I have considered information provided by the complainant, the Trust and the Council. I have also considered the law and guidance relevant to this complaint. Mrs D was given an opportunity to respond to a draft of this decision.

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What I found

Legal and administrative context

7. The responsibilities of the Council, settings, and partner agencies (including health bodies) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, The SEN Code of Practice 2015 (The Code). Agencies are expected to work in an integrated way, with the child and family fully included in decisions.
8. 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. A parent has a right of appeal against the contents of a plan when it is first issued, after an annual review, and if the council amends the plan at any other time
9. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider.
10. 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.
11. The Trust is commissioned by two Clinical Commissioning Groups to provide speech and language therapy services to children and young people aged 0 – 19 years. The Council funds some elements of school age SaLT provision in its locality.

Background

12. Mrs D’s child, Y, has special education needs and had an EHC plan in place.
    Mrs D said Y underwent a privately funded speech and language therapy (SaLT) assessment in April 2018. The Council agreed to fund the SaLT provision in line with its statutory duty. The SaLT provision was put in place from September.
13. The EHC plan set out the SaLT provision in section F of the plan. This stated:
• Weekly social communication group (for a minimum of 30 minutes per week) set up and monitored by a qualified speech and language therapist and run by school staff;
• Set up and monitoring of weekly social communication group by a qualified Speech and Language Therapist. This includes a minimum of 60 minutes per month for both direct and indirect support in liaising with staff, demonstrating tasks within the social communication group and monitoring Y’s progress;
• Language and communication targets set up by a qualified Speech and Language Therapist through liaison with school staff and Y’s parents and integrated throughout the curriculum and reviewed on a termly basis (30 minutes per term); and
• Regular review of Y’s progress with annual language reassessment and preparation of a report for his annual review (2 hours annually).
14. Mrs D said she spoke to the Trust’s therapist in October about Y’s future SaLT provision. Following this conversation Mrs D said the therapist contacted the Council and Y’s school. A copy of the email the therapist had sent to the Council has been provided. The email confirmed the therapist had spoken to Mrs D who was initially confused why Y was being seen by an NHS therapist when she was previously told Y had not met the Trust’s referral criteria for its speech and language therapy service. The email states, “I explained to mum that this support is being offered by a separate branch of the service and that we are working closely with KCC…”
15. The email set out what would be offered to Y and confirmed the therapist would be “looking to reassess”. When complaining to the Trust Mrs D said she did not recall the telephone conversation with the therapist being as detailed as set out in the email the therapist had sent to the Council and the school. She said she had not received the same email from the therapist and this led to her complaint about the lack of openness and transparency by the Trust.
16. The Trust started to provide direct SaLT to Y from November. In January 2019 Y’s in-year review was held and Mrs D met with representatives from the Trust. During this meeting the therapist started to talk about making changes to Y’s SaLT plan before the annual review planned for later in the year. Mrs D did not agree with the changes.
17. Mrs D emailed the Trust’s therapists after she left the meeting to set out her concerns. In summary, she said she did not agree it was appropriate for a teacher at the school to have oversight of a weekly speech and language communication class. Mrs D asked the therapist to confirm the reasoning behind the decision which differed from the opinion of a private speech and language therapist she had dealt with previously.
18. Mrs D also noted the upcoming SaLT ‘intensive intervention’ sessions planned for Y were more frequent than set out in the EHC plan. She asked the therapists to confirm the reason why they had decided to approach the decision in this way and why they felt it necessary.
19. The Trust wrote to Mrs D near the end of January to “summarise the bespoke package on offer from the Children’s Speech and Language Service…”. It explained that Y's school was involved in the 'scheme for schools' project. The letter set out what SaLT provision had been provided over school term 2 and 3. Provision included:
• attendance at the in-year review of the EHC plan by two SaLTs;
• a review of social stories used by school staff;
• a review of the social communication groups;
• direct individual language therapy completed in school by the SaLT and attended by school SENCO;
• school staff provided with resources/information so that additional carryover could be completed outside of direct therapy session; and
• a classroom observation.
20. The letter then set out the provision that was planned for term 4 between February and April 2019. It also set out the provision for term 5 after April.
21. In February Mrs D emailed the therapist and said there was a breach of trust which she wanted to complain about. She said Y’s SaLT provision should have been implemented as set out in the EHC plan which was agreed by the Council. She questioned why more time was being put in than was required by the plan. Mrs D said the SaLT provision set out in the plan was based on a thorough report from an independent therapist. Mrs D reiterated that the EHC plan could not be amended without following the correct process with the local authority.
22. The Trust acknowledged Mrs D’s complaint and replied to her in March 2019. The Trust said the therapists involved had taken an approach to maximise the opportunities to support Y’s language and communication skills both directly and indirectly. It said the therapist’s involved had recognised the provision was not delivered “in exactly the manner outlined in the EHCP” although this was what Mrs D had asked for.
23. The letter confirmed an annual review meeting had been held on 13 March where it had been agreed the SaLT provision delivered by the Trust would be implemented as set out in the EHC plan. The Trust said it was aware Mrs D was exploring options with the Council and it assured her the therapists would follow the specific targets set out in the plan until any decision was reached.
24. Mrs D remained unhappy with the response provided by the Trust and said it was inadequate. She referred to a breach of trust and the way the SaLT provision was approached from the outset. In summary, she said there was no intention to implement the provision in accordance with the EHC plan. Mrs D referred to documents she had received after making a subject access request and made detailed points.
25. The Trust responded and Mrs D replied to that response. She said she was still dissatisfied with the overall response. She subsequently complained to the Ombudsmen.

Findings

26. The Council is responsible for the EHC plan and for making sure all the services are brought together and the plan is well coordinated. It is important that children and families are at the centre of the planning process.
27. When the Council agreed the EHC plan it recognised that Y’s school could not make the special education provision needed and it was up to it to specify and then secure the special educational provision. In Y’s case the Council commissioned the Trust to provide the SaLT provision.
28. The therapists involved felt the extended service would offer more intensive support initially. It is unclear how much information was provided to Mrs D from the outset as she was confused why an NHS therapist was involved when she was told Y did not meet the criteria previously. In an initial call with the NHS
    Mrs D was told therapy may not be ongoing as set out in the plan and she did not agree with this. An EHC plan should not be changed without the correct local authority process being followed so it is understandable why Mrs D disagreed.
29. The Trust accepted the EHC plan was not delivered in the way specified in the plan between November 2018 and March 2019. In summary, both Mrs D and the Trust agreed that more intensive support was provided than what was set out in the plan. Any changes or potential changes to the EHC plan should have gone through the Council’s processes. Mrs D challenged the therapists involved.
30. I can understand why Mrs D was alarmed when the Trust’s therapists provided intensive SaLT with a view to providing a shorter service. This she interpreted as a breach of trust as she had not expected this to happen. She was able to challenge the decision once she understood what was happening after making a subject access request. The Trust agreed to change the therapy so it was in line with the plan.
31. At the in-year review in January 2019 the therapists talked about making changes to the plan. This included a decision that Y’s SaLT provision would end after March. The therapist was entitled to give her professional opinion on future provision but it would have been the Council’s decision whether to accept this advice and amend the EHC plan.
32. Mrs D complained to the Trust and by the time the Trust replied to the complaint it had already agreed the EHC plan would not be changed following Mrs D’s discussions with the Council. If changes were made to the EHC plan Mrs D could have appealed to the tribunal. The service did not end in March 2019 although this was suggested by the therapists.
33. Mrs D said the Trust should have completed an equality impact assessment in line with the Equality Act 2010. However, the Council is responsible for making sure whatever is specified in an EHC plan is delivered. Therefore, it would have been up to the Council to decide whether this process applied to the service it commissioned from the Trust. It was not for the Trust to do this as it did not have the statutory duty to meet Y’s special educational needs.
34. The Trust accepted it should not have deviated from the EHC plan as set out despite initially providing more SaLT than it needed to. Mrs D did not want the extra provision and complained to the Trust. The Trust promptly changed the provision to be compliant with the Plan when Mrs D raised concerns. The Ombudsmen cannot add to the previous investigation already completed through the complaint process.

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Final decision

35. The Ombudsmen will not investigate this complaint because they cannot add to the previous investigation already completed by the authorities complained about. I have closed the complaint.

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Investigator's decision on behalf of the Ombudsman