Summary: X complained the Council failed to provide the signing support provision in their Education Health and Care Plan. We have found fault by the Council, causing injustice, in failing to deliver this support, and also in failing to communicate sensitively with X about its proposal to remove the provision and properly consider its Equality Act duties. The Council has agreed to remedy this injustice by apologising to X, making a payment to reflect the distress and uncertainty caused and the impact of the missed provision.

The complaint

1. The complainant, who I am calling X, complains the Council failed to provide the 1:1 British Sign Language (BSL) support specified in their Education Health and Care (EHC) Plan from September 2022 to December 2023.
2. X says the lack of support has affected their ability to fully engage with their lessons and peers at school. This has caused them frustration and anxiety about going to school. They want the Council to put the support in place and pay redress for the impact of the missed provision.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these.
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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)
6. 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)
7. 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.

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What I have and have not investigated

X’s signing support provision after December 2023

8. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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.
10. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
11. The Council issued X’s final amended EHC plan in December 2023 removing the 1:1 signing support provision and replacing this with support through the use of technological communication aids.
12. X’s carer had the right to appeal to the SEND Tribunal once the final plan was issued. I do not consider, based on the evidence seen, it was unreasonable to expect them to appeal at this stage. So I have not investigated any complaint about X’s SEN and education provision after December 2023.

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How I considered this complaint

13. I spoke to X’s representative, Mr Y, made enquiries of the Council and read the information Mr Y, X and the Council provided about the complaint.
14. I invited X, Mr Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education Health and Care Plans

15. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their 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 SEND tribunal can do this.
16. 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.

Equality duty

17. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
18. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. The ‘protected characteristics’ referred to in the Act include disability.

Reasonable adjustments for people with disabilities

19. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
20. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
21. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services but must think in advance about what disabled people with a range of impairments might reasonably need.

What happened

22. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

X’s EHC Plan

23. X is a child with an EHC Plan. From July 2021, their plan has included the following provision:

X will have a 1:1 BSL signing support worker working with them in school each day

24. X was provided with this signing support until the end of the school year in July 2022.
25. At the start of July 2022, X’s signing support worker gave notice they were leaving the position.

X’s signing support provision from September 2022

26. Although the position was advertised from July 2022, neither X’s school nor the Council were successful in recruiting a replacement signing support worker for X.
27. X has not had any 1:1 signing support provision from the start of the school year in September 2022.
28. A number of reviews of X’s progress and provision were carried out in the school year 2022/2023. Comments by X, their school and carer about the impact of the missing signing support included:

• X feels left out at school since not having a signing worker. They said they have no friends at school, as they are not able to communicate anything more than basic information and no one knows what they are saying. They are becoming less inclined to sign and their signing is deteriorating;
• X is unable to participate in lessons at the same rate as their peers because of the time to write a response on the whiteboard compared to speech.
• X is meeting all educational attainment levels. They say they are struggling although this is contrary to what school sees and reports; and
• Communication is harder for X without the signing support. The continued lack of signing support is an area of concern.

June 2023: X’s complaint to the Council

29. X complained, with Mr Y’s help, about the Council’s failure to provide their 1:1 signer support at school from September 2022. They asked the Council to put this in place.
30. In its complaint response the Council said it:

• was aware of the need to find a replacement signer. It and the school had been trying to find a replacement since July 2022 without success;
• accepted it was in breach of its duty to make this provision. But it didn’t think it had had an undue impact on X’s access to education or academic progress; and
• suggested X move from using BSL support to technological communication aids. It proposed amending the EHC Plan at the next review by removing the signing support provision and replacing this with provision for support through alternative communication aids.

Current position

31. X was reported to be very upset at finding out about the proposed removal of their signing support provision through the complaint response.
32. A final amended EHC Plan was issued in December 2023. The 1:1 signing support was removed and replaced with provision for support for X through the use of technological communication aids.

How X feels about not having signing support from September 2022

33. X told us:

• When the teacher asks them a question, they try and write the answer on their whiteboard. But this takes time so the teacher moves on and asks someone else who answers instead. And they don’t want to have to write everything on their whiteboard;
• At play they don't chat because their friends don't know sign language. Their peers used to learn sign language from the signing support worker but there is nobody to learn from now. X doesn’t want to carry their whiteboard all the time and it takes space on the desk; and
• Sign language is their voice. How would somebody who is able to speak feel if they were told they had to use a whiteboard all the time instead of speaking. Although the Council said not having a signing support worker had no impact on them, it has. Nobody came to ask them about it.

My view – was there fault by the Council causing injustice?

Failure to deliver X’s signing support

34. The Council has accepted it was in breach of its duty to make the provision in X’s EHC Plan by failing to provide the signing support from September 2022.
35. I note the Council and the school tried to recruit a replacement without success. But as set out in paragraphs 3 and 4 this service failure is fault.
36. I have considered the impact on X of the missed signing support provision in the school year from September 2022 to July 2023 and the school term from September 2023 to December 2023.
37. The Council says the missing signing support did not have an undue impact on X’s educational attainment. But as X told us, sign language is their voice.
38. In my view the failure to deliver X’s signing support affected X’s communication with their teachers and peers and had a significant impact on their ability to access school life, including the development of social skills, for more than one whole school year.
39. I consider this failure also caused X a great deal of distress and uncertainty.

Communication of the Council’s intention to remove X’s signing support

40. In our published principles of good administrative practice, we say councils should be service-user focused. This includes dealing with people helpfully, promptly and sensitively taking account of their individual circumstances.
41. The Council told X, in its complaint response, it would amend their EHC plan by removing their signing support provision. In my view, in doing this, without first considering whether it had been discussed with X and the impact on them if not, the Council failed to deal sensitively with X. This was fault which caused X additional distress and worry about their support.

The Council’s Equality Act duty

42. In my view, the Council failed to properly consider its duties under the Equality Act to make sure X, as a disabled child, could access their education as close as it is reasonably possible to get to the standard usually offered to non-disabled children at school.
43. I appreciate the Council and X’s school tried but were unable to recruit a replacement signer from July 2022. I note the Council considered the impact of the lack of signing support on X’s academic progress and discussed possible alternative communications aids. But the lack of signing support was also a barrier to X being able to access school life. In my view the Council failed to properly consider this and failed to fully explore the availability of alternative communication aids which could have been offered to X to help with this
44. This failure was fault. I consider this caused X additional distress and uncertainty about how and when they would be able to communicate at school.

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Agreed action

45. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council should:
1. apologise to X for its failure to: provide their 1:1 signing support in school from September 2022 to December 2023; communicate sensitively about its proposal to remove this support; and properly consider its Equality Act duty. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings;
2. pay X’s carer, on X’s behalf, £200 to reflect the distress and uncertainty caused by these failures. This is a symbolic amount based on our guidance on remedies; and
3. pay X’s carer, on X’s behalf, £500 for each school term they did not receive their 1:1 signing support provision from September 2022 to July 2023 and from September 2023 to December 2023 (a total of £2,000 over four school terms.) This is a remedy for X’s benefit to recognise the injustice the missed provision has caused them.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I have completed my investigation of this complaint and found fault by the Council causing injustice. The Council has agreed to remedy this by taking the above action.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman