The Ombudsman's final decision
Summary: Ms Y complained that the Council failed to pay a British Sign Language interpreter which led to the interpreter withdrawing the services provided to Ms Y’s daughter, Miss X. We find the Council was at fault. This led to Miss X not receiving all the educational provision specified in her Education, Health and Care plan. The Council has agreed to our recommendations to address this injustice.
The complaint
The complainant, Ms Y, complains on behalf of her adult daughter Miss X, that the Council failed to pay a British Sign Language interpreter. This led to the interpreter withdrawing the service provided to Miss X. Ms Y said because of this, Miss X has not received the educational provision specified in her Education, health and care (EHC) plan.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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.
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)
How I considered this complaint
I considered the information provided by Ms Y and the Council.
Ms Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making my final decision.
What I found
Special educational needs A child or young person aged 19 to 25 with special educational needs (SEN) may have an Education, Health and Care Plan (EHC plan). This sets out the young person's needs and what arrangements should be made to meet them. The council is responsible for making sure that all the arrangements specified in the EHC plan are put in place.
The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
The council has a duty to secure the specified special educational provision 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. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135) What did happen?
This section sets out the key events in this case and is not intended to be a detailed chronology.
Miss X is autistic, has hearing loss which causes speech problems, and has other disorders, one of which causes extreme fatigue. Her EHC plan finalised in June 2021 stated she would receive weekly therapy sessions of at least one hour with a speech and language therapist and to continue to learn British Sign Language (BSL). It said in education settings BSL interpreters must be provided.
Miss X had two BSL interpreters to cover her speech and language therapy (SALT). Ms Y told us this was so there was an interpreter to cover any absences.
The Council asked Ms Y and Miss X in the same month how the therapies were going. Ms Y said they were happy with the BSL interpreters. She said without their support, Miss X could not access the therapy and her English class.
The BSL interpreter, B, told Ms Y and the Council in November 2021, after she previously sent it her invoices, that she had not been paid for the first six sessions. She said because of this she would have to cease her services.
The Council responded. It said it had no record of B sending any invoices to it and agreed to look into it.
In the same month, Ms Y asked the Council for the matter to be resolved so Miss X did not go without SALT. She then complained to the Council on behalf of Miss X.
The Council told B in November 2021 it had put in a request to have her set up on its systems using the invoices she had provided. B then chased the Council twice for an update on when she would receive payments. It said it had corrected an issue with the invoices and asked B to resend any outstanding invoices.
In the same month, Miss X’s other BSL interpreter, C, told the Council she sent it her invoice almost six weeks ago and had no response.
The emails provided by the Council state it set B up on its system in December 2021. But it said it had not approved payment as it needed clarification on the hours B had worked.
Ms Y contacted the Council and said B had still not been paid. She said Miss X was not receiving the provision specified in her EHC plan. The Council said it was working on it.
The Council spoke with B in the same month. It asked her who commissioned her to work with Miss X. B said she was a substitute interpreter for when C was unavailable. She confirmed C had received payments from the Council before.
Ms Y asked the Council for an update on B’s payment. This was because interpreter, C, had cancelled Miss X’s SALT session. She asked what was being done to replace B.
B continued to chase the Council for an update on her payment throughout December 2021. It said the Council officer had been off sick and it would forward her query to the relevant team.
In the Council’s stage one complaint’s response on 10 December 2021, it said once it had established the hours B had worked it would arrange payments for the last six months. It said going forward it would set B up on its system so when C is unavailable, B can provide the service.
The Council asked C and B to provide a breakdown of the sessions they delivered to Miss X. The Council said B responded. But it said C did not provide all the details it had requested.
Miss X contacted the Council in the same month. She said she still did not have a BSL interpreter and therefore could not fully access her provision as required. She asked for her complaint to be escalated.
The Council confirmed to B in December 2021 it had processed payments for five sessions. But it said it had not processed payment for the late payment fees as it was not aware of the outsourced service which caused the delay.
The Council confirmed to C the following month it had paid her invoices.
In the Council’s final response in February 2022, it acknowledged there had been a breakdown in the quality of its service. It said it asked its SEND and commissioning teams to review processes around the contracting of services and the timeliness of issuing purchase orders. It said it had issued C a purchase order to continue services. It offered a £250 remedy to Miss X.
Ms Y told the Council B had still not been paid. She asked the Council to contact B.
The Council said it would liaise with B regarding reinstating her services.
In July 2022, the Council asked the professionals who have had direct input into Miss X’s EHC plan to provide a report to feed into her annual review.
In the same month, the Council asked the education tuition service to provide a summary of the education provided where provision was not being delivered for Miss X.
Miss X’s SALT therapy provider said there had been disruptions to the provision due to interpreter absence and Miss X’s attendance due to her poor health. It provided a breakdown of sessions. This included client and interpreter cancellations. The SALT therapy provider said it had been available to hold sessions every week and attempted to be flexible where and when possible.
Miss X’s education tuition provider told the Council in the same month Miss X’s attendance was 72% due to a decline in her health. It said as far as it was aware, Miss X had a BSL interpreter in all her lessons.
The Council asked C if all commissioned service for up to July 2022 had been delivered. C said it had aside from missed sessions due to varying factors. She said her and the service provider have agreed to provide catchup sessions for Miss X throughout August.
The education tuition provider told the Council in August 2022, it did not have an issue with absences due to sign language cancellations as it has its own independent BSL interpreter.
My findings
While we recognise the Council did commission providers to deliver Miss X’s SEN provision, the Council failed to check the quality of the provision when it became aware in December 2021 that Miss X did not always have access to an interpreter. It did not do so until July 2022. This is fault. The Council has a duty to investigate complaints or concerns that provision is not in place at any time. Its failure to do so meant Miss X went without some of the provision set out in her EHC plan. Ms Y said this has set Miss X back in the progress she has made and said as a result Miss X has had to postpone her exams. Ms Y spent time and trouble asking the Council what it was doing to ensure Miss X had access to the provision specified in her EHC plan.
B told the Council in November 2021 she had not been paid for the first six sessions. The Council said this delay was because it was not made aware that B had been sub-contracted by the therapy provider. In the same month, the Council said it had no record of any invoices. But B had previously sent her invoices to a Council officer who said adding her as a second provider was proving difficult. C also said in November 2021 that she had sent her invoices to the same Council officer six weeks prior. The Council officer said she no longer worked in the department but any outstanding tasks were passed to another officer. The Council is at fault. It failed to act when initially receiving the invoices. While we cannot criticise the Council for not initially being aware B had been sub-contracted, I am satisfied that the Council was aware before November. Its failure to take action before this is fault.
In the Council’s stage one response in December 2021, it said it would set B up on its system so she could provide services when C is unavailable. The Council’s notes show in December 2021 it asked B if she would resume work if the payment issue was resolved. There is no response noted from B. But Ms Y asked the Council what it was doing to replace B. The Council said it had issued C a purchase order for the 2021/2022 academic year, so planning remaining sessions should have been easier. It said in April 2022 it would liaise with B regarding reinstating her services. There is no evidence to suggest it did so. This is fault.
The Council told us education with an interpreter is still in place and is meeting Miss X’s needs. This is supported by the education tuition provider. But the SALT provision was affected. The breakdown of sessions provided by the SALT therapy provider stated nine SALT sessions were cancelled by the interpreter and five cancelled by Miss X between January and July 2022. Ms Y told us between November 2021 and January 2022, four sessions were cancelled by the interpreter. This caused significant distress, anxiety and frustration to Miss X. She did not know from one week to the next whether she could access her SALT sessions.
The Council said both the interpreter and therapy provider have agreed to deliver the missing sessions during August 2022 but said Miss X has not responded since 20 July 2022. Ms Y said Miss X has been asked to reschedule sessions to the weekend, but said as Miss X suffers from neurological fatigue, this is not an option she can cope with.
When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused.
In acknowledgement of missed provision, we recommend a payment per school month. I consider an appropriate figure in this case to be £200 per month between November 2021 and July 2022. But in this case the missed provision does not amount to a full month. In January and March all SALT provision was provided. One SALT session was cancelled by the interpreter in both February and April. As Miss X should have received weekly therapy sessions, the 13 missed sessions amount to three months. In determining the £200 figure, I have taken into account that the lack of SALT affected Miss X’s ability to do exams. I have also taken into account the £250 provided to Miss X by the Council.
Agreed actions
To address the injustice caused by fault, within one month of the date of my final decision the Council has agreed to: Apologise to Miss X and Ms Y Pay Miss X £350 to acknowledge the loss of SALT provision Pay Ms Y £200 to acknowledge the time and trouble and frustration she has been caused.
Within two months, using this complaint as a case study, issue written reminders to relevant staff to ensure they are aware of: The Council’s duty to promptly investigate complaints or concerns that provision is not in place at any time.
The Council’s duty to ensure provision is being delivered as set out in a child or young person's EHC plan.
Final decision
There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman