Summary: Miss X complained the Council failed to provide Occupational Therapy (OT) services specified in her son, Y’s, Education, Health and Care Plan (EHCP). Miss X complained the Council has not completed all the recommendations of its stage two investigation. Miss X says the delay in implementing the OT provision has resulted in further delay in Y’s developing skills and she has been put to time and trouble to complain. There was fault in the way the Council conducted the annual review and did not communicate its decision to amend or maintain the plan with the family. This failure has caused Miss X and Y an injustice as he did not receive the OT provision, the Council has acknowledged he should have.

The complaint

1. Miss X complained the Council failed to provide Occupational Therapy (OT) services specified in her son, Y’s, Education, Health and Care Plan (EHCP). The Council has investigated this matter in a stage 2 complaint, it set out 5 recommendations.
2. Miss X complained the Council has still not completed all the stage 2 recommendations, despite committing to do so within one month. Miss X confirmed part of the recommendations have been completed, but there are still outstanding issues. Communication with the Council has been difficult, and she says she has often not received a response. Miss X stated the delay in implementing the Occupational Therapy provision has resulted in a lack of progress in Y’s self-care skills, handwriting and general functional skills. Miss X has been put to time and trouble to complain.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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.
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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How I considered this complaint

8. I read Miss X’s complaint and spoke with her about it on the phone.
9. I considered information provided by Miss X and the Council.
10. My investigation has focussed on the outstanding recommendation from the Councils stage two response. Miss X was satisfied with the Councils actions on the other issues raised in her original complaint, so I have not considered these further.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

12. A child with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections.
13. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
14. The Council has a duty to secure the specified special educational provision in an EHCP 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)
15. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
16. The procedure for reviewing and amending EHCPs is set out in legislation and government guidance.
17. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
18. Where a council proposes to amend an EHCP, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
19. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
20. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
21. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.

What happened

22. Y has a diagnosis of Autism, significant sensory needs and severe postural disorder. He met the criteria for an EHC needs assessment in May 2017 and in February 2018 his EHCP was finalised.
23. In March 2020, Y was seen for a review visit at school by a new Occupational Therapist. The therapist confirmed it would require further resources to increase Y’s independence within the classroom.
24. In June 2020, the therapist prepared a report for the annual review in July 2020. The report recommended an increase in Y’s OT provision and confirmed the Council would need to update the EHCP to include the updated level of provision. Evidence provided confirmed Y should have ten sessions with the OT per year. The annual review paperwork confirmed the OT report was received and considered in the meeting. There is no evidence the Council notified Miss X of its decision to maintain or amend the EHCP within the four-week timescale following the annual review.
25. Miss X complained to the Council in October 2021, detailing the OT provision she had expected Y to have received since September 2020. Miss X stated Y should have received six visits each year for a minimum of 90 minutes and four interventions, but neither had been completed.
26. The Council responded to this complaint and confirmed the OT team had not been able to deliver Y’s OT sessions because of staff shortages. The response confirmed the OT service had a plan to deliver sessions to Y over the next half term and apologised. Miss X was unhappy with the response and asked for the Council to escalate the complaint to stage two.
27. In January 2022 the Council responded to the stage two complaint. It confirmed the Council was responsible for providing the OT provision stated in the EHCP. The stage two investigation made five recommendations. The Council carried out four of them, but recommendation two remained outstanding. Recommendation two stated:
• “Within one month of the Council’s response at stage two, the Council should calculate what provision has been missed since the annual review of 2020 and discuss with the OT service whether it is appropriate for the direct interventions to be carried out in addition to the sessions commencing in January. If this is not appropriate, a symbolic remedy should be considered to acknowledge the impact on Y (any remedy offered should be in line with the Local Government and Social Care Ombudsman’s guidance on remedies). Miss X should be provided with the outcome within the timeframe specified above.”
28. In February and March 2022, Miss X contacted the Council by email several times chasing the response to recommendation two from the stage two investigation.
29. Two months after the stage two complaint response and Miss X emailing several times, the Council responded to Miss X, outlining the contact Y had received for his OT provision. The email stated Y had received provision written in his EHCP. The email also stated sessions were arranged but the school or the therapist cancelled them because of Y or the therapist being unwell.
30. Miss X responded to the Councils email and stated the stage two investigation confirmed Y did not receive the provision stated in his EHCP and the complaints officer and the assistant director had agreed. Miss X stated information in the email was wrong. She confirmed only two dates of the eight provided in the previous email for OT sessions happened. Miss X also stated the therapist did not complete all of the phone appointments stated in the email, and Y was in school for the sessions where the email said he was not.
31. The Council responded to Miss X and confirmed it provided information in good faith based on information shared with the team. It acknowledged this was different from the information in the stage two response. The Council apologised for this mistake and confirmed it would deliver five sessions before the end of term. It stated it had been unable to deliver four sessions and offered a remedy of £150 per session. The Council paid £600 to Miss X.
32. Miss X requested clarification whether the five sessions before the end of term were on top of the provision Y was going to receive anyway as she believed Y was due to receive more sessions. The Council responded to this advising Miss X to discuss the frequency of sessions directly with the therapist.
33. Miss X complained OT has not delivered the five sessions in addition to the sessions already scheduled for the academic year.
34. Miss X is not satisfied with the Council’s response and has asked the Ombudsman to investigate. Ms X would like the stage two complaint response recommendation completed fully, the Council to apologise and make changes so this does not happen in the future.
35. In response to my enquiries the Council provided evidence of the OT sessions provided and communication with Miss X.

My findings

36. The Council failed to respond to Miss X within the specified timescale given in the stage two response and there has been continuing delay resolving her complaint. This is fault and has caused Miss X distress and she has been put to time and trouble to chase the Councils response.
37. The provision specified in the 2020 OT report confirmed Y should have a review every term, totaling three visits per year. Y should also receive three appointments to assess and review equipment and four school intervention visits. The report stated the EHCP would need to be updated to include this new level of provision. The Council provided evidence which confirmed the OT report was received and considered in the annual review, but the EHCP was not then updated. This meant Y did not have a plan showing his up-to-date needs and the provision the OT recommended to support those needs. There is no evidence the Council notified Miss X of its decision to either maintain or amend the plan following the annual review. Miss X was left with the understanding the plan would be amended to reflect the recommendation to increase the provision. The failure to issue a decision about amending or maintaining the plan following the annual review meant appeal rights were not engaged and Miss X had no means to challenge any amended EHCP if she was unhappy with the content. This was fault. Miss X understood the OT provision would be increased from September 2020. The Council later accepted in an email about this complaint, had it updated the EHCP, the OT provision would have been increased. This was fault and meant Y did not receive all the provision he was assessed as needing.
38. The Council has provided evidence that confirmed the therapist completed five sessions in the 2020/2021 academic year, and seven sessions in the 2021/2022 academic year. This has resulted in eight sessions not being provided to Y if he had received the level of provision the OT had recommended. The Council has provided a remedy of £150 per session for four sessions Y missed. This leaves four sessions outstanding. This is fault which has caused Miss X distress and potentially impacted on Y’s progress.
39. The Council has not communicated with Miss X in a timely manner as agreed in the stage two response. This is fault and Miss X has been put to time and trouble pursuing this complaint.

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Agreed action

40. To remedy the outstanding injustice to Miss X and Y caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Miss X for failing to; issue a decision following the annual review in July 2020; amend Y’s EHCP following that review and ensure Y received all the OT sessions which should have been included in his EHCP had the annual review been process been completed appropriately. It should also apologise for the delays in implementing the stage two response.
• Pay a further £600 for not providing four OT sessions over two academic years. This money should be used for Y’s benefit.
• Pay Miss X £200 as an acknowledgement of the time and trouble she has spent pursuing this complaint.
41. The Council should take the following action within three months of my final decision:
• Review its procedures to ensure recommendations made in its own complaint responses are regularly monitored to ensure timely and full compliance.
• Review its EHCP annual review procedure to ensure it follows the statutory four-week timeframes set out in the SEND regulations. Ensure decisions about maintaining, amending or discontinuing plans are communicated clearly and promptly to the young person and their family to enable appeal rights to be engaged.
42. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

43. I have completed my investigation. I have found fault by the Council, which caused injustice to Miss X and Y. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman