Summary: Mrs X complains the Council have failed to provide occupational therapy provision as set out in her son, Y’s, EHCP. We have concluded our investigation having made a finding of fault. The Council did not provide Y with the occupational therapy provision as set out in his EHCP and it did not provide a sufficient remedy thereafter. The Council have agreed to our recommendations.

The complaint

1. Mrs X complains that since September 2020, the Council have failed to provide the provision as set out in her son, Y’s, EHCP. Mrs X says Y is to receive 3 hours of direct occupational therapy provision with a qualified Occupational Therapist, and 3 hours of indirect therapy. Mrs X would like the Council to make an award for the time and trouble spent resolving the matter, and for the challenges Y now faces as a result of not receiving the therapy.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended)
3. 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)

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How I considered this complaint

6. I spoke with Mrs X and considered information she provided. I also considered information provided by the Council in response to enquiries I raised. Mrs X and the Council both had an opportunity to comment on my draft decision and I considered all comments that were submitted.

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What I found

Relevant legislation and guidance

EHC Plans

7. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014
8. The procedure for reviewing and amending EHC plans is set out in legislation and the Code. The plan should be reviewed by the council and the school with the parents and/or the child at least once a year. Sometimes an early review may be requested if there is a need to amend a plan more urgently. For example, if a school placement has broken down.
9. Where a council proposes to amend an EHC plan, 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)
10. The Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
11. 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 EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
12. 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 EHC plan. The right of appeal is only engaged when the final amended plan is issued.

The Zones of Regulation

13. A social-emotional learning curriculum aimed to teach children self-regulation and emotional control. The curriculum can be taught in school, in a therapy setting or parents can teach their children at home too.

Discretion to investigate

14. Events in this complaint begin in September 2020 when Y’s EHCP was finalised. Throughout that academic year and as per Y’s EHCP, it was intended that he receive occupational therapy. As per paragraph 3, we cannot investigate late complaints unless we decide there are good reasons. Mrs X says that Y has continued not to receive the occupational therapy and the matters are therefore ongoing.

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What happened

15. I have included a summary of some of the key events below. This is not intended to be a comprehensive account of everything that took place.
16. Y is a young person with an EHCP. Y attends School A.
17. Y’s EHCP was finalised in September 2020. As per Y’s ECHP, the provision pertaining to occupational therapy was as follows:
1. 3 hours over the year of direct occupational therapy Intervention (with a qualified Occupational Therapist).
2. 3 hours over the year indirect occupational therapy Intervention.
18. In January 2022, Mrs X complained to the Council that it failed to deliver the occupational therapy. The Council made an offer to Mrs X for £225 to cover the provision that was not in place. Mrs X declined the Council’s offer.
19. Mrs X informed the Council she would seek the services of a specialist team of Occupational Therapists to determine a costing for the occupational therapy that Y had not received.
20. The Council issued a final response to Mrs X in March 2022, acknowledging that it had not provided the occupational therapy as set out in Y’s EHCP. The Council said that Mrs X had to yet to provide it with information regarding the costing’s and would consider any proposal put forward.
21. In April 2022, Mrs X forwarded the costings from the specialist team of Occupational Therapists to the Council, these were for £2,195. This covered:
• £480 for Y to be taught The Zones of Regulation Programme.
• £400 for the development of motor skills and sensory modulation
• £400 for 1 hour per term to review goals and strategies
• £400 for 3 hours over the year of indirect occupational therapy intervention
• £514.80 for travel expenses
22. The Council confirmed to Mrs X that it would accept the report provided by the specialist term of Occupational Therapists. The Council agreed to pay the full invoice less half the cost to teach the Zones of Regulation Programme. The Council said it would cover £240 of the cost.
23. Dissatisfied with the Council’s proposal, Mrs X complained to the Ombudsman

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Analysis

Did the Council deliver the occupational therapy as set out in Y’s EHCP?

24. As Y’s EHCP was finalised during the national pandemic, the Council says that securing occupational therapy provision that could be delivered face-to-face within a school setting was challenging.
25. The Council says that although School A reopened in March 2021, external agencies were not visiting School A during the remainder of the calendar year. To resolve this, the Council says interventions were offered remotely.
26. The Council says that despite this, occupational therapy interventions were difficult to offer remotely. The Council says it felt a remote session would not have been effective for Y, who would have likely found engaging in remote sessions challenging.
27. The Council acknowledges that the provision outlined within the EHCP was not provided to Y for the reasons above, and here I have made a finding of fault. The Council did not provide the occupational therapy sessions, nor did it provide or propose an alternative, and this caused an injustice to Y.
28. The Council agreed to the costings set out by the specialist team of Occupational Therapists, but only to cover half the cost to teach the Zones of Regulation Programme. I have not been able to substantiate the Council’s reason for only agreeing to half of the cost and I therefore consider that the Council has not provided a sufficient remedy to resolve the injustice caused to Y. The costings provided by the specialist team of Occupational Therapists considers provision needed for Y having missed out on the occupational therapy in the first place, and the Council should meet the full costs of its proposal.
29. Further, I recognise the time and trouble Mrs X has spent trying to resolve the matter. The Council’s original offer to Mrs X was insufficient to remedy the injustice of Y not receiving the provision. If not for the efforts of Mrs X in raising her concerns with the Council and sourcing the services of a specialist team of Occupational Therapists, it is likely that the Council would not have adequately remedied the matter.

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Agreed action

30. To resolve matters, the Council will:
1. Meet the outstanding costs, by way of £240, for Y to be taught the Zones of Regulation Programme.
2. Pay Mrs X an amount of £200. This is to acknowledge the time and trouble and distress Mrs X has incurred on the matter.
3. Pay Mrs X an additional amount of £200. This is to acknowledge the impact on Y having not originally provided the provision.
31. The Council will complete action a, action b and action c within one month of the Ombudsman’s final decision. The Council will provide the Ombudsman with evidence that it has completed the actions.

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Final decision

32. I have concluded my investigation having made a finding of fault. The Council did not provide Y with the occupational therapy provision as set out in his EHCP and it did not provide a sufficient remedy thereafter. The Council have agreed to my recommendations

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Investigator's decision on behalf of the Ombudsman