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1. Summary and purpose of this report

1.1. The Local Government Ombudsman has published a report on his investigation of a complaint against the County Council concerning provision to meet special educational needs (SEN). The report records that settlement of the complaint has been agreed.

1.2. The law requires that Ombudsman reports are considered by the County Council. This Committee has responsibility to consider on behalf of the County Council reports and recommendations from the Ombudsman and to report to the next meeting of the County Council.

1.3. There is in this case no recommendation from the Ombudsman because settlement has been agreed with him. The Committee is recommended to note the Ombudsman's report and endorse the settlement.

1.4. The Ombudsman's report is on public deposit at the County Council's Information Centres and a copy is attached (Members of the Committee only).

2. The complaint

2.1. The complaint concerned failure to arrange provision of speech and language therapy (SaLT) in accordance with requirements specified in a pupil's statement of special educational needs. The pupil had recently moved to Hampshire with a statement issued by the previous local education authority. Visits by a speech and language therapist (to support the day-to-day provision of a language programme by the school) was specified in the pupil's SEN statement but the local NHS Primary Care Trust (PCT) is responsible for providing the service. In this case, the PCT had had difficulty in recruiting speech and language therapists and failed to provide the support specified in the statement.

2.2. The SEN officer was not informed by the PCT, the school or the parent and was unaware that SaLT support was not being maintained until the annual review of the pupil's needs and SEN provision. The significance of the report is in confirming the responsibility of the County Council for ensuring that requirements specified in a SEN statement are met even when provision is arranged by another body.

2.3. The County Education Officer has, on behalf of the County Council, accepted responsibility for failing to ensure provision in accordance with the requirement specified in the statement. The annual review established that the child had continued to make progress as school staff were able to continue to deliver the language programme initially set up by the therapist. The pupil did not suffer any significant disadvantage from failure to provide support from a speech and language therapist.

3. Settlement of the complaint

3.1. The Ombudsman's report records that he has accepted and agreed a proposed settlement of the complaint. Additional funding will be made available to the pupil's current school for the purchase of ICT equipment or software to the value of £500 to enhance development of the pupil's language and communication skills. A payment of £150 will be made to the complainant in recognition of time and trouble in pursuing the complaint.

3.2. Procedures and practice in the SEN team have been reviewed in the light of the complaint to reduce likelihood of a repetition of events. A risk assessment has to be made balancing likelihood of failure in delivery of services against the resources needed to monitor performance of other agencies. The County Education Officer has instigated changes to communication with schools and PCTs' SaLT Services giving increased emphasis to provisions in statements of SEN.

4. The Ombudsman's report

4.1. The Ombudsman's conclusion in his report are

"The Special Educational Needs Code of Practice is quite specific in stating that the provision of speech and language therapy should be made by the NHS. It also specifically places the duty on the Council to ensure that this, and other, provision is being made.

The Council says here that it was aware that the Primary Care Trust had staffing difficulties in (the pupil's) area of the County. But it did not check with the Trust to see whether this was affecting the service it could provide. While I accept that the principal way in which the Council monitors provision is through the annual review, I would expect it to be more proactive when it becomes aware of possible problems affecting the delivery of a service. And I would expect there to be a mechanism in place by which the Trust could advise the Council of any shortfall in provision to enable it to make other arrangements. These finding were maladministration.

The Council says that it encourages schools to approach the Primary Care Trust direct over questions of provision. But here the school could also have been more proactive. It says that it tried to contact (the PCT) in May 2002, but then did not pursue the matter until December 2002, when it finally contacted (the SEN officer). In my view it would have been reasonable for the school to have pursued this point at an earlier date with the Council, particularly as more than one child was affected. In this instance the school was acting on behalf of the Council in carrying out its statutory responsibilities, and its failure here was maladministration...

...I am pleased that the Council has reviewed its procedures and grateful to it for remedying the injustice... I have completed my investigation and issued this report because it raised issues of general public concern."

The Ombudsman has recorded that he has completed an investigation of the complaint and issued a report finding maladministration and injustice.

4.2. The Executive Member for Education is aware of the report and action in response to the issues and concerns highlighted by the complaint. The Ombudsman's report will be formally considered at the Executive Member's Decision Day on 25 March and by the Education Policy Review Committee on 23 March.

4.3. The Ombudsman decided to publish a report of his investigation because it raises matters he considered of public interest. He does not normally complete investigation and publish a report when a settlement has been agreed: he would normally exercise his discretion within the law to discontinue investigation without issue of a report, and inform complainant and local authority by private letter. The `public interest' in this case is that the Ombudsman's findings confirm what is set out in the Government's Code of Practice for Special Educational Needs - that although "Prime responsibility for provision of speech and language therapy rests with the NHS... where the NHS does not provide speech and language therapy for a child whose statement specifies such therapy as educational provision, ultimate responsibility for ensuring that the provision is made rests with the LEA...". The report may also be seen as having wider consequences in establishing that a local authority remains accountable for delivery of a service when it has contracted or made arrangements with another body or person for provision of the service. That conclusion should be brought to the attention of all County Council services.

4.4 The preceding paragraph sets out respective responsibilities of NHS and Local Education Authorities in relation to provision of support from speech and language therapists specified in statements of special educational needs. In this case there was failure within the NHS to pass full details of support specified in the pupil's statement to the SaLT service (paragraphs 11 and 15 of the Ombudsman's report). The Ombudsman's report records (paragraph 17) the failure of the PCT's SaLT service to provide the support specified in the statement. These are failings by the PCT and the PCT's SaLT Service, not the County Council. And the Ombudsman's conclusions (reproduced in paragraph 4.1 above) gives his conclusion that he would have expected the PCT to advise the County Council of difficulties and shortfall in provision it was making, giving the County Council the opportunity to consider making other arrangements. In these circumstances, it might have been appropriate for investigation of this complaint to have been joint between the Local Government Ombudsman and the Health Service Ombudsman.

5. Recommendations

It is recommended 1) that this Committee notes, on behalf of the County Council, publication of a report by the Local Government Ombudsman on his investigation of a complaint concerning provision of services specified in a pupil's statement of special educational needs and the conclusions which it sets out

2) that this Committee notes the action taken to reduce likelihood of a repetition of the events and endorses the action to settle the complaint, namely a payment of £150 to the complainant and provision of ICT equipment/software to the value of £500 to the school the pupil now attends to enhance development of the pupil's language and communication skills.

3) that all County Council services note and take into account the implication from this Ombudsman's decision that the Council remains accountable for delivery of service when it has contracted or agreed with another body or person for provision of that service.

4) that the Local Government Ombudsman be advised that, in the circumstances of this complaint, it would have been appropriate for it to have been investigated jointly with the Health Service Ombudsman.

Section 100D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.

NB the list excludes:

1 Published works.

2 Documents which disclose exempt or confidential information as defined in the Act.

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