Summary: Mrs X complained the Council failed to deliver the social care support in Section H of her child’s Education, Health and Care Plan. The Council has accepted fault for failing to deliver this provision. The Council agreed to pay Mrs X the equivalent cost of the 6 hours of Personal Assistant Section H provision missed from 7 July 2020 to January 2024, excluding during the Covid-19 pandemic national lockdown from 6 January 2021 to 8 March 2021. The Council also agreed to pay Mrs X the equivalent cost of the 2 days per week for 8 weeks of the year playscheme Section H provision missed from 7 July 2020 to 31 March 2022. And, the Council agreed to apologise to Mrs X and pay her £1,000 for the risk of harm to Y through the failure to secure this Section H Education, Health and Care Plan provision and £500 for the time and trouble caused.

The complaint

1. Mrs X complained the Council failed to deliver the social care support in Section H of her child’s Education, Health and Care (EHC) Plan from June 2020 to January 2024. She said the missed support meant her child’s physical and sensory needs worsened. Mrs X also said it has prevented her child from engaging in community activities and accessing early years intervention services, which were crucial for her development. She wanted the Council to assess the impact on her child of the missed provision and make an appropriate payment for this.

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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 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)
3. 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 has done or failed to do. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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.
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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What I have and have not investigated

6. I have investigated Mrs X’s complaint about the lack of social care support provided by the Council from their child’s EHC Plan from June 2020 to January 2024. Although the period in question is more than 12 months before the complaint to us, I am satisfied Mrs X had good reason not to complain earlier. This is because she was trying to resolve this matter through the Council’s complaints process throughout, which the Council did not complete until October 2023.
7. I have not investigated the contents of the EHC Plan. Any complaint about the contents of a child’s EHC Plan is outside the jurisdiction of the Ombudsman. If Mrs X disagrees with the provision detailed in her child’s EHC Plan she would need to raise this with the Council to ask it to change the provision. If the Council does not agree to change the provision, Mrs X can appeal this to the SEND Tribunal.

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How I considered this complaint

8. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mrs X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

Education, Health and Care Plans

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
11. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
12. The Ombudsman can look at any failure by the Council to deliver the provision within an EHC Plan.

Children’s statutory complaints process

13. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail and sets out the timescales for each stage of the process.
14. This says complainants can ask for a Stage 3 panel if they are unhappy with the outcome at Stage 2. The Stage 3 panel should be held within 30 working days of the request.
15. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
16. However, we may look at whether there were any flaws in the Stage two investigation or Stage three review panel that could call the findings into question.

What happened

17. Mrs X has a child, who I shall refer to as Y, who has an EHC Plan.
18. At the start of 2020, the tribunal heard an appeal by Mrs X about Y’s EHC Plan produced by the previous Council. As part of this appeal, on 8 April 2020, the tribunal recommended the Council provides 6 hours of Personal Assistant support for Y each week in Section H of the EHC Plan.
19. The previous Council issued an amended final EHC Plan in June 2020. The EHC Plan detailed the Council would provide a Direct Payment for 6 hours each week for a Personal Assistant to enable Y to attend dance, gymnastics, swimming and other physical activities. The EHC Plan also detailed the Council would provide 2 days per week at a playscheme for children with additional needs for 8 weeks each year.
20. Mrs X and her family moved into the Council area in June 2020. On 7 July 2020, the previous council shared Y’s EHC Plan with the new council.
21. On 25 November 2020, the Council issued an amended EHC Plan for Y. The Council did not remove the 6 hours Personal Assistant in Section H of the EHC Plan or the 2 days per week for 8 weeks a year at a playscheme. The Council said Y’s package of support would be regularly reviewed within Care Team meetings and Child in Need reviews.
22. On 24 August 2021, Mrs X raised a formal complaint with the Council. Mrs X complained the Council had failed to provide the Personal Assistant provision from Y’s EHC Plan since they moved into the Council area in June 2020. Mrs X said they did not wish to use a Direct Payment with the Council and wanted to pursue a commissioned service.
23. Following contacts with the Council it apologised on 22 December 2021 for failing to provide the service for Y.
24. Mrs X sought consideration of her complaint at Stage 2 in January 2022.
25. On 31 March 2022, the Council told Mrs X about the non-term time activity provider it used and how to use this service through the school.
26. On 7 June 2022, the Council completed its Stage 2 complaint process. The Stage 2 investigation found the Council had failed to secure the Personal Assistant provision for Y as detailed in Section H of the EHC Plan. The Stage 2 report made four recommendations for the Council to complete which the Council accepted.
27. Mrs X sought consideration of their complaint at Stage 3 of the complaint process in July 2022.
28. On 9 October 2023, the Council considered Mrs X’s complaint at its Stage 3 panel. The Stage 3 panel found:
• The Council had delayed at considering the complaint at Stage 3 of the process and recommended issuing an apology and time and trouble payment for this delay.
• The Stage 2 complaint response issued by the Council failed to acknowledge the action or learning the Council would take from the Stage 2 investigation.
• Its commissioning team failed to make a referral to a suitable provider for Y’s Section H provision and should take care to ensure it makes suitable referrals in future.
29. The Council wrote to Mrs X on 19 October 2023 to outline its actions following the Stage 3 panel hearing. The Council said:
• It apologised for the poor and misleading communications from the Council.
• It apologised for the delay in progressing the complaint to Stage 3 of the complaint process.
• It offered a £500 payment to Mrs X for the delay in progressing to Stage 3 of the complaint process.
• It had agreed to and carried out the other recommendations from the Stage 3 panel.
30. On 14 December 2023, the Council issued an amended EHC Plan for Y. This EHC Plan reiterated the Council should provide Y with 6 hours each week of support from a Personal Assistant and the 2 days per week for 8 weeks each year at the playscheme. The Council acknowledged in the EHC Plan it had not managed to provide this support for Y to date. The EHC Plan noted that Mrs X did not want Y to access this support during the Covid-19 pandemic national lockdown in January 2021 to March 2021; the Council had also noted this in previous EHC Plans.
31. On 21 January 2024, the Council started to provide Y’s Section H EHC Plan provision.

Analysis

Council’s investigation

32. The Council investigated the complaint using the children’s statutory complaints process. The Stage 3 panel found the Council had not delivered the Section H social care provision in Y’s EHC Plan since June 2020. It also found fault with some parts of the Council’s communications with Y’s parents, and delays in the complaints process. The Stage 3 panel made recommendations to the Council for improving its services. It also recommended an apology and a payment to Mr and Mrs X for the impact of the delay in arranging a Stage 3 panel. The Council accepted the recommendations, apologised to Mrs X, and offered a payment of £500 for the time and trouble caused through its complaints handling delay.
33. The investigation was thorough in terms of its investigation and findings. It made appropriate recommendations for service improvements and to remedy the delay in the complaints process. The £500 payment for the impact of that delay was suitable and is in line with the Ombudsman’s guidance on recommendations for delays. The Council should ensure it pays Ms X this £500 payment and provides her with the apology.
34. While the Council has found fault and agreed to suitable recommendations for service improvements and its delays, it has failed to provide any remedy for Y’s missed provision.

Injustice to Y

35. When Y moved to the Council area, the Council had a duty to provide all provisions detailed in the previous council’s EHC Plan. This duty started when the old Council shared Y’s EHC Plan with the new Council. The Council’s duty to provide these provisions would only end when the Council either decided to cease the EHC Plan or produced its own EHC Plan. When the Council produced its first EHC Plan in October 2022, it maintained that it should provide 6 hours of Personal Assistant support under Section H of the EHC Plan and the 2 days per week for 8 weeks of the year playscheme. This 6 hours of Personal Assistant support and playscheme provision remained in Y’s EHC Plans up to the date of this decision statement.
36. From 7 July 2020 to 21 January 2024, Y has not received the 6 hours each week Personal Assistant support as detailed in Section H of their EHC Plan. This was fault. The direct injustice of this fault to Y was missing provision they were entitled to receive.
37. Y has also not received the 2 days per week for 8 weeks of the year playscheme provision detailed in Section H. However, the Council does not offer the same Section H provision as detailed in the EHC Plan passed over from the previous council. The Council failed to remove this provision, despite it being unable to offer this, when it updated the EHC Plan. This was fault. The result of this fault was the Council had a duty to provide this provision, or a suitable alternative, until it removed this from the EHC Plan.
38. The Council failed to provide this Section H provision or a suitable alternative from 7 July 2020 until 31 March 2022. On 31 March 2020, the Council directed Mrs X to a suitable alternative to the Section H playscheme provision it offered and directed Mrs X to engage with the school to arrange this. Any decision about engagement with this provision from this point, would be for Mrs X and this would constitute the Council fulfilling this aspect of the EHC Plan provision.
39. When someone has suffered an injustice, the Ombudsman will try to put them back in the position they would have been had that error not occurred. Our focus is on restoring services that have been denied and taking practical steps to put things right. 
40. The Council has already started to provide the Personal Assistant services for Y in line with Section H of Y’s EHC Plan from January 2024 so there is no need to restore these services. And, as per paragraph 38, the Council directed Mrs X to a suitable alternative for the playscheme provision on 31 March 2022.
41. Mrs X has advised the lack of provision from the Council has caused Y ongoing, and potentially lifelong, issues. Mrs X says Y now needs weekly Occupational Therapy because of the missed provision.
42. It is not the of the Ombudsman to decide what services a child needs moving forwards. Only the Council can decide what should be included in a child’s EHC Plan. As detailed in paragraph 7, the Ombudsman cannot consider complaints about the content of an EHC Plan. If Mrs X considers Y needs weekly Occupational Therapy moving forwards, this is something Mrs X needs to raise with the Council first. If the Council considers Y needs weekly Occupational Therapy, the Council would pay for any costs associated with this by including this provision in the EHC Plan; this would not cause a future injustice to Mrs X and her family. However, whether Y now needs Occupational Therapy is a matter for the Council and its consultation with the relevant professionals.
43. While the correct Section H EHC Plan provision is now in place and any decision about future provisions is for the Council to consider, Y has missed Personal Assistant provision they were entitled to for 42 months and the playscheme provision for 21 months. This missed provision needs to be restored to put things right.
44. To restore the missed provision, the Council could either offer catch-up provision for all the provision missed or provide the family with a payment to reflect the cost of the missed provision.
45. The Ombudsman would usually look to recommend catch-up provision when it would still benefit a child to receive this provision. The missed support for Y was for a Personal Assistant to support Y to engage in activities in the community, such as gymnastics, dance, and yoga for three sessions of two hours. There is no evidence providing this provision as catch-up provision for Y would be beneficial for Y. Arguably, putting in place additional provision could be a detriment to Y by providing too much physical exertion for a child with more limited than normal mobility and dexterity. I do not consider it would be correct for the Council to offer catch-up provision in the circumstances.
46. Additionally, the 2 hours per week for 8 weeks of the year playscheme provision was time specific for non-term time of each year. Providing catch-up provision now would result in Y attending a playscheme daily for several years during the school holidays and would not provide a suitable home-school balance.
47. To put Y back into the position they would have been in if not for the fault, the Council should pay Mrs X the equivalent cost of Y’s missed Personal Assistant provision from 7 July 2020 to January 2024. The Council should also pay Mrs X the equivalent cost of the missed playscheme provision from 7 July 2020 to 31 March 2022. Mrs X may then use this funding to source any appropriate provision, whether through additional Personal Assistant hours, Occupational Therapy or otherwise, to support Y now.
48. The evidence shows Mrs X did not want Y to receive this support during the Covid-19 pandemic lockdown period from January 2021 to March 2021 as they were understandably concerned about the risks involved. The period in question covers the national lockdown to prevent the spread of COVID-19, from 6 January 2021 to 8 March 2021. This means, even if the Council had made provision available to Y she would not have accessed it during these times. This impacts the award for the Personal Assistant provision but not for the playscheme provision as this time period was entirely term-time.
49. Mrs X explained they arranged some support for Y at a cost to themselves in the absence of support from the Council. Any costs Mrs X incurred in sourcing alternative provision to that which the Council should have provided should be covered by this rebate in costs. If Mrs X has spent more on alternative provision than the EHC Plan provision, this would have been at her own discretion.
50. It is not the role of the Ombudsman to assess economic losses or award compensation such as for claims of injury or harm to health, this is the role of the courts. As a body focused on individual justice and institutional improvement, we do not impose punitive fines for errors or take action to punish councils. However, we should consider if fault by a council has caused harm, or a risk of harm, and whether the Council should address this.
51. The provision Y missed was focused on physical activities. The intention of these physical activities was to maintain and improve Y’s physical mobility and dexterity. Y has been subject to Occupational Therapy assessments which assess her motor skills compared to children of the same age. From the February 2023 Occupational Therapy assessment to the April 2024 Occupational Therapy assessment, Y has dropped in all percentiles of their scoring except “aiming and catching”. This includes reductions in such skills as “balance”, “manual dexterity” and “motor coordination”.
52. I cannot draw a direct causal link between the lack of the 6 hours Personal Assistant support and Y’s reduction in percentile compared to their peers. This is because many other factors could have resulted in this reduction. However, the Occupational Therapy tests are an indicator the Council’s failure to put in place the relevant Section H EHC Plan provisions have caused a risk of harm to Y.
53. Where the Ombudsman considers a person has been put to a risk of harm, we may consider a symbolic remedy of up to £1,000 in acknowledgement of the impact of the fault. Y went up to 42 months without the Section H EHC Plan provisions, Y is a vulnerable child and the relevant professional opinion from the Occupational Therapist indicates an impact on Y. As such, I consider the Council should make an award at the top end of the Ombudsman’s awards for its fault. We recommend the Council apologises to Mrs X and pays her a symbolic payment of £1,000 for the risk of harm to Y through to failure to secure her Section H EHC Plan provision from 7 July 2020 to January 2024.

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Agreed action

54. Within two months of the Ombudsman’s final decision the Council should:
• Pay Mrs X the equivalent cost of a Personal Assistant for Y for 6 hours each week in line with Section H of Y’s EHC Plan, from 7 July 2020 to 21 January 2024, excluding the Covid-19 national lockdown period from 6 January 2021 to 8 March 2021.
• Pay Mrs X the equivalent cost of 2 days per week for 8 weeks of the year playscheme provision in line with Section H of Y’s EHC Plan, from 7 July 2020 to 31 March 2022.
• Provide an apology to Mrs X and pay her a symbolic payment of £1,000 for the risk of harm to Y through to failure to secure her Section H EHC Plan provision from June 2020 to January 2024.
• Ensure it provides Ms X with an apology and payment of £500 for the time and trouble the Council’s fault put her to.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. There was fault leading to injustice. As the Council accepted my recommendations, I have completed my investigation as I consider that a suitable remedy.

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Investigator's decision on behalf of the Ombudsman