Summary: Ms X’s son, Mr Z, missed out on several academic terms’ worth of physiotherapy and hydrotherapy that he was entitled to receive, as it was in Section F of his Education, Health and Care Plan (EHC Plan). This injustice was caused by Council fault - mainly service failure - due to the national shortage of physiotherapists and lack of capacity at hydrotherapy services. In recognition of the injustice caused, the Council has agreed to apologise, pay Mr Z £1,050, pay Ms X £300 and carry out service improvements.

The complaint

1. Ms X complained the Council failed to secure the hydrotherapy, physiotherapy and occupational therapy provision in her adult son, Mr Z’s, 2022 EHC Plan.
2. As a result, she says her son has missed out on therapies that he needs for his physical and mental development. Ms X said the Council’s actions have caused her and her son distress and put her to time and trouble in raising the issues with the Council.

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What I have and have not investigated

3. My investigation covers the period between March 2021 and January 2023. Usually we do not investigate events which took place any earlier than twelve months before the complainant brought their case to the Ombudsman. In this case, Ms X brought her complaint to us in December 2022.
4. However in this instance it is not possible to properly understand the cause of the fault without investigating further back. Therefore I have used our discretion to investigate earlier events.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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)
8. 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)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

10. I considered the information provided by Ms X and the Council.
11. I considered the relevant law and guidance as set out below.
12. I considered our Guidance on Remedies.
13. Ms X and the Council had the opportunity to comment on a draft decision. I considered any comments made before making a final decision.

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What I found

Law and guidance

14. A child with special educational needs may have an Education, Health and Care (EHC Plan). This sets out the child’s needs and what arrangements should be made to meet them.
15. The EHC Plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
16. 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).
17. The Courts have said this duty to arrange provision is owed personally to the child or young person 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 happened

18. Ms X’s adult son, Mr Z, has learning disabilities and physical disabilities. He has an EHC Plan.
19. On 31 March 2021, the Council issued a final EHC Plan for Mr Z which included details of his transition from secondary to further education.
20. The Council put the following provision in Section F of his EHC Plan:
• College / school - based physiotherapy: this consisted of a physiotherapy assessment every three months and a physiotherapy programme made up of sessions to mainly be carried out by education staff at least three times a week; and
• Hydrotherapy: this consisted of twelve sessions per academic year, with the hydrotherapy programme set by the physiotherapist.
21. Mr Z requires these therapies to support development of several key physical and mental skills.
22. The EHC Plan said this provision would take place at his secondary school, until the end of the academic year in July 2021. Then from September 2021, when he transitioned to college, he would start accessing the therapies there instead.
23. Apart from when COVID-19 restrictions prevented it, Mr Z accessed the therapies in his EHC Plan up to the end of the academic year in July 2021. However in September 2021, when Mr Z transitioned from secondary to further education, he stopped receiving the hydrotherapy and physiotherapy in his Plan.
24. Emails between April 2021 and December 2021 show the SEND officer was unclear about which organisation should assess Mr Z and provide the physiotherapy and hydrotherapy. The Council was also unclear on what kind of assessment would be needed for Mr Z, now that he was an adult.
25. The misunderstanding was not resolved until eight months later in December 2021, by which time the Council accepted the NHS’s response that it would not deliver the provision. During this time, Mr Z did not receive any of the physiotherapy or hydrotherapy from his March 2021 EHC Plan.
26. From January 2022, the Council’s SEND Officer contacted several private physiotherapists to see if they could carry out an assessment of Mr Z’s physiotherapy needs and provide the hydrotherapy and physiotherapy in his EHC Plan. By March, the Council had consulted twelve physiotherapists. However none had availability due to high demand caused by the COVID-19 pandemic. Hydrotherapy pools also responded to say they did not have capacity or had very long waiting lists.
27. A physiotherapist confirmed they had space in April 2022 and the Council began making arrangements but then in May 2022 rescinded their offer due to pressures on their service.
28. By 13 May 2022, Ms X’s son had not received the therapies required by his EHC Plan for most of that academic year, so Ms X complained to the Council. Ms X said she believed the Council was deliberately delaying finding providers for the therapies to save money as it did not want to fund them. She asked for the therapies to be provided over the summer holidays as well as into the next academic year due to the sessions he had missed.
29. The Council continued consulting physiotherapists and by 20 May 2022, another physiotherapist offered to deliver the provision. By 6 June 2022, this physiotherapist had agreed to start working with Mr Z.
30. The Council responded to Ms X at stage 1 of the complaints process on the same day as follows:
• It acknowledged her SEND officer had delayed in communicating with her;
• It said when Mr Z transferred from secondary education to further education in September 2021, health assessments should have been completed so the Council knew of any therapies he may need. The Council said this transition was not as timely as it should have been, partly due to pressures on services during the COVID-19 pandemic.
• It said it had changed its approach to commissioning therapeutic work to try and provide these services more quickly.
• It said once it procured relevant therapists, the therapy provision Mr Z had not received would be ‘recouped’. It also agreed to assign Mr Z another SEND officer to oversee his EHC Plan.
• The Council apologised for the faults it had identified.
31. By 17 June 2022, Mr Z had another final EHC Plan. This included the same hydrotherapy and college-based physiotherapy provision as the year before and added occupational therapy as well. All of this was again set out in Section F of Mr Z’s EHC Plan. The Council approved the funding for all three of these therapies by 21 June 2022.
32. The Council began approaching occupational therapists and had one in place to deliver the occupational therapy in Mr Z’s EHC Plan by July 2023.
33. Mr Z’s college closed for the holidays before assessments and sessions for the therapies could begin. As the occupational therapist wanted to carry out their assessment partially within the college, and the hydrotherapy pool was closed for part of July and almost all of August, it was agreed between the Council and Ms X that Mr Z’s therapies would begin in September 2022. The Council had contacted other hydrotherapy pools to see if they could deliver the provision but none had space.
34. During this time the Council experienced further issues in meeting provision, as Mr Z’s social care provider said due to staffing problems it did not think it could provide the agreed assistance at the hydrotherapy sessions. Mr Z required their support to attend. Ultimately this issue was resolved but this meant the Council spent more time finding alternative solutions for several weeks.
35. The hydrotherapy pool staff contacted the Council when the pool re-opened in September and said sessions could begin from the end of September 2022. However by this time, Mr Z’s physiotherapist who was due to lead the hydrotherapy programme, withdrew their service unexpectedly.
36. Between October 2022 and November 2022, the Council consulted with other private physiotherapists and liaised with the hydrotherapy pool to see if their physiotherapists could provide the sessions. The hydrotherapy pool had none of its own staff available, so the sessions could not go ahead and the private physiotherapists the Council approached during this time had no capacity for new clients.
37. By 16 December 2022, the Council found another private physiotherapist who said they could deliver Mr Z’s hydrotherapy and physiotherapy provision.
38. Ms X had complained in September 2022 at stage two of the Council’s complaints procedure. The Council responded on 30 December 2022 as follows:
• it apologised for the delay in responding to her stage 2 complaint from September 2022 but gave no reason for the delay;
• it again reiterated that the reason for the continued delay in finding the therapies was due to a chronic shortage of NHS and private therapists since the pandemic. It assured Ms X that its officers had worked extensively to find therapy providers but this was out of the Council’s control; and
• the Council said again that the therapy Mr Z should have received for the past year and did not, would be ‘recouped’, meaning an additional year of the therapies would be provided once the therapy was in place, regardless of how long he remained at college.
39. Ms X was still unhappy with the Council’s response, so she complained to the Ombudsman in January 2023. She said Mr Z had not received any of the therapies in Section F of his 2021 or 2022 EHC Plans.
40. The Council’s SEND officer handling this case was taken ill for several weeks shortly after this. On their return, they contacted the hydrotherapy pool again and liaised with the private physiotherapist that said they could deliver the provision. However this has not been successful and Mr Z has still not received any hydrotherapy to date.
41. Mr Z received the occupational therapy in his June 2022 EHC Plan. This began in September 2022. There was no occupational therapy provision set out in his March 2021 EHC Plan that the Council was required to meet.
42. Mr Z has very recently begun to receive the college-based physiotherapy in his EHC Plan.

My findings

Failure to arrange the therapies in Mr Z’s EHC Plans

43. When the Council produced Z’s 31 March 2021 EHC Plan, which covered his transition from children’s to adult services and secondary to further education, the Council lacked clear understanding of the procedure at the relevant NHS team with regards to assessing Mr Z’s physiotherapy needs.
44. Despite the records showing the Council worked hard to try and resolve this misunderstanding, it did cause an eight-month delay in the Council being able to start work on securing the physiotherapy and hydrotherapy in Mr Z’s EHC Plan. It was ultimately the Council’s duty to arrange the provision in Section F and this was an important time due to being a transition year. The Council avoidably delayed in making these arrangements. This was fault.
45. Once this misunderstanding was resolved and the Council was aware the NHS would not carry out Mr Z’s assessment, it contacted a significant number of private physiotherapy and hydrotherapy providers and chased these up regularly. The urgency of the situation was stressed in its correspondence.
46. The reason for the further delay in securing the physiotherapy and hydrotherapy from this point onwards, was due to the national shortage of physiotherapists and lack of capacity at hydrotherapy pools and services. These delays were outside of the Council’s control and amount to fault (service failure).
47. The Council experienced further issues outside its control from September 2022 onwards when Mr Z’s physiotherapist unexpectedly withdrew their service, which had a knock-on effect for the hydrotherapy due to begin that academic year. The Council contacted other providers but none were available. Again, this amounts to fault (service failure).
48. During the period I have investigated, the fault and service failure identified above caused Mr Z to miss out on therapy provision that was required for his physical and mental development and that he should have received, for seven academic terms.

Communication and complaints

49. The Council did provide Ms X with updates and many were detailed due to the complexities with arranging the provision. However given the length of time Mr Z had been without the therapies in his EHC Plan, the Council was right to accept in its complaint response that more frequent communication between itself and Ms X would have been preferable. The Council’s poor communication was fault which caused Ms X avoidable frustration.
50. Ms X made a stage two complaint to the Council on 23 September 2022. The Council responded on 30 December 2022. The Council’s complaints procedure says it will respond at stage two within twenty working days. It responded in 68 working days and gave no reason for the delayed response. This delay was fault and caused Ms X further frustration.

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Agreed action

51. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X and Mr Z for the faults identified in this case;
2. Pay Mr Z £1,050 in recognition of the significant amount of hydrotherapy and physiotherapy that his EHC Plan said he needed and which he did not receive;
3. Pay Ms X £300 in recognition of the frustration caused by the Council’s poor communication and delayed complaint handling during a time when her son had missed out on a significant amount of provision;
4. Provide evidence of efforts the Council has made from January 2023 to today’s date to arrange the physiotherapy and hydrotherapy in Mr Z’s EHC Plans, including the ‘recouped’ missed sessions it agreed to in its complaint response; and
5. Make a firm commitment in writing to Mr Z and Ms X that when it secures a provider, Mr Z’s ‘recouped’ sessions of hydrotherapy and physiotherapy will continue until the missed sessions have been restored.
52. Within three months of the date of the final decision, the Council has agreed to:
1. provide evidence of the changes it said it made to its procurement processes for hydrotherapy and physiotherapy in its stage one complaint response; and
2. demonstrate that it has improved its understanding with the NHS team involved in this complaint with regards to the procedures around assessments for adults with EHC Plans, in particular during key transfers and transition years.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay the complainant a financial remedy and carry out service improvements.

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Investigator's decision on behalf of the Ombudsman