Summary: London Borough of Islington and North Central London Integrated Care Board did not appropriately respond to the Special Educational Needs and Disability Tribunal’s non-binding recommendation for Section G of Mr X’s daughter’s Education, Health and Care Plan. That led to Y missing occupational therapy support at college. The fault also caused Mr X and Y uncertainty, frustration, and distress. The organisations should apologise, review their processes, and make a symbolic payment to remedy their injustice.

The complaint

1. Mr X complains on behalf of his daughter, Y. He says London Borough of Islington (the Council), North Central London Integrated Care Board (the ICB – formerly Islington Clinical Commissioning Group) and Whittington Health NHS Trust (the Trust) have jointly failed to arrange and implement appropriate support in Section G of Y’s Education Health and Care Plan (EHC Plan) following a non‑binding recommendation from the Special Educational Needs and Disability Tribunal (the Tribunal).
2. Mr X says Y has not received any occupational therapy (OT) support in Section G of her EHC Plan since January 2022. That missed support has impacted her mental and physical health, and education. It has also caused them both uncertainty.
3. Mr X would like the Council to carry out the recommendations from the private or NHS OT reports in Section G. He would like changes to the local procedure to ensure similar fault does not happen to others. Also, Mr X wants a financial payment to recognise the lack of support.

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The Ombudsmen’s role and powers

4. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A (1), as amended).
5. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
6. The Ombudsmen cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant organisation must make. Therefore, my investigation has focused on the way that the body made its decision.
7. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
8. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

9. I considered the information Mr X and the organisations sent to me, including their responses to my enquiries. I also considered the relevant national guidance and legislation.
10. Mr X, Y and the organisations 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

Relevant law and guidance

11. Children who have special educational needs may have an EHC Plan. This sets out the child’s special educational needs and the provision needed to meet them. Local authorities have a duty to secure the special educational provision set out in an EHC Plan, unless the parent or young person has made suitable alternative arrangements. (Children and Families Act 2014 section 42)
12. Section G of an EHC Plan includes any health care provision a child or young person might need if they have learning difficulties or disabilities that affect their special educational needs.
13. The SEND (First Tier Tribunal Recommendations Power) Regulations 2017 set out how councils and ICBs must respond to the Tribunal’s recommendations. The council would be responsible for responding to social care recommendations and the ICB to health recommendations in Section G.
14. The Department for Education’s “SEND Tribunal: extended appeals” provides guidance for councils, ICBs, parents and young people on the extended powers of the Tribunal. It says:
• There is no requirement for the ICB to agree to the Tribunal’s non-binding recommendations. However, it is generally expected to follow them.
• The ICB has five weeks to decide if it will implement non-binding recommendations of the Tribunal about health matters. The ICB should write to the child’s parents/young person and the council’s SEND team. The council then sends a copy of that response to the Secretary of State within one week of receipt.
• In its written response, the ICB should state what steps it has taken following the Tribunal’s recommendations. It should provide detailed reasons if it has decided not to follow those recommendations.
15. Before July 2022, the ICB was known as Islington Clinical Commissioning Group. For clarity, I refer to the ICB for any action carried out by the earlier CCG.

Key facts

16. In January 2022, the Tribunal recognised Y’s college was unclear what OT support she needed. It said: “It was agreed by the parties that the Tribunal should make a recommendation that an up-to-date Occupational Therapy Assessment be conducted, through a suitable qualified private Occupational therapist if it is not able to be commissioned within the NHS, and the recommendation are incorporated within Section G of [Y’s] EHC Plan. We find this a sensible and appropriate approach and accordingly make a recommendation to this effect below”. The Tribunal shared its order with the Council and ICB. It reminded the ICB it was responsible for responding to the non-binding recommendation.
17. The Council took the lead arranging the OT assessment. It asked the Royal Free London NHS Foundation Trust (not subject to this investigation) to check its capacity to carry out the OT assessment. Y’s college was in their area. The Royal Free did not have capacity to assess Y until the summer. So the Council asked a private OT to assess Y.
18. In February 2022, the Council issued Y’s final EHC Plan. In Section G, it noted: “OT assessment has been commissioned in line with the Tribunal Order to identify what support from OT she needs at College. This will take place on 18/02/22 and the assessment report will be available no later than 11/03/22. Recommended provision arising from the OT assessment will be included in this section of her EHCP, as directed by the Tribunal Order…From provision commissioned by the…(CCG). The OT assessment will be funded by Islington Council.”
19. The private OT completed their assessment in mid-March 2022, and shared their report with the Council in late April. The same day, the Council asked the ICB to fund and commission the private OT’s recommendations for Y.
20. In early May 2022, the Council asked the Royal Free if it could deliver the private OT’s recommendations. It said no. The Royal Free questioned the private OT’s qualifications and the recommendations for Y’s age (17 years old). It would have taken her out of school at an important time in her education. The same day, the Council asked the Trust to review the private OT report and carry out their own assessment of Y at school. The Trust agreed but following that assessment, it could not support Y.
21. The Trust’s OT completed the assessment in late July 2022, and shared their report with the family, ICB and Council on 8 August. It explained to the Council why it could not support Y. The Trust and ICB both told the family why they disagreed with the private OT’s recommendations.
22. The next day, Mr X complained to the Council. He wanted the ICB to explain why the private OT report was not included in Section G. The Council asked the Tribunal to amend its order so the Council could carry out the private OT’s recommendations in Section F, rather than Section G. The Tribunal refused. It said the OT support would not directly meet Y’s special educational needs.
23. In late August 2022, the Council shared its Stage 1 complaint response with Mr X.
24. In early September 2022, the Council reviewed it Stage 1 complaint response. Later that month, Mr X asked the Council to escalate his complaint to Stage 2.
25. In March 2023, the Council reissued Y’s final EHC Plan. In Section G, it recommended a termly OT school visit (one hour) to set functional goals. Mr X refused that support due to his ongoing complaint.
26. In May 2023, the Council shared its Stage 2 complaint response. It said the Stage 1 response was robust but was sorry for the delay and offered Mr X £75 to recognise his inconvenience.
27. The Trust later agreed to provide the OT support following its assessment, despite not having a contract with the ICB to do so.

My findings

Responding to the Tribunal’s non-binding recommendations

28. The Council took the lead responding to the Tribunal’s non-binding recommendations around Section G. That was wrong. The ICB should have taken the lead. It told me it was not aware of the Tribunal order, but I disagree. The Tribunal copied a member of staff from the ICB into the email. The Tribunal made it very clear the ICB was responsible to taking up the recommendations around Section G. That was a missed opportunity.
29. I consider the ICB and Council jointly acted with fault, which was not in line with the relevant statutory guidance. They have both accepted the ICB was responsible and the Council should not have taken the lead.
30. Also, the ICB did not write to the family and/or Council within five weeks explaining it would not agree to the Tribunal recommendations. In fact, the ICB has never written in response to the Tribunal. That was also fault, which the ICB has accepted.
31. Overall, there was a lack of understanding locally how to respond to the Tribunal’s non-binding recommendations. That most likely explained why the ICB did not take appropriate action in January 2022. That lack of understanding has caused Mr X and Y uncertainty. They will not know if things would have been different had the organisations understood how to correctly respond to the Tribunal. Also, there is no doubt that was a distressing time for them both.
32. The Council and ICB accept they did not have a local policy for responding to non‑binding recommendations from the Tribunal. The Council has created a new role (Senior Tribunal Officer) to ensure it takes the right action following future Tribunal orders and/or recommendations.
33. The Council, Trust and ICB have all agreed to update their terms of reference for its Education, Health and Care Management Board. That is a joint forum following Tribunal questions, orders and/or recommendations. They agreed to highlight the correct way to respond to non-binding recommendations for Section G.
34. I am happy the organisations have reflected on this case and agreed to make changes to their local process to better understand and respond to non-binding recommendations. This should reduce the chances of other families suffering similar fault. However, I still consider the organisations need to take further actions to remedy the personal injustice Mr X and Y suffered.

Arranging the OT assessment

35. In January 2022, the ICB should have recognised the need for an OT assessment and commissioned one from the NHS. That did not happen. As we know, the Council wrongly took the lead. The Council identified the Royal Free was most likely responsible for providing college-based OT support. That was because Y went to college in Camden, not Islington (where she lived).
36. Had the ICB taken the lead in this case, I consider the Royal Free would most likely have also told the ICB it could not assess Y until the summer in 2022. But I cannot say, even on the balance of probabilities, if the ICB would have approached other NHS providers before commissioning a private OT assessment (like the Council did). Regardless, the confusion between the Council and ICB contributed to an unnecessary delay completing the OT assessment until July 2022. That was clearly fault, which caused Mr X and Y frustration and distress while they waited.
37. In May 2022, the Royal Free and ICB had understandable concerns about the quality of the private OT’s report and explained why it would not implement them. Someone needed to clearly explain those reasons to Mr X and Y. It took the Council and ICB three months to explain why they had disregarded the private OT’s report. That delay was fault, which caused Mr X confusion.

Carrying out the OT support in Section G

38. By July 2022, the Trust had completed its own OT assessment. The ICB was responsible for deciding if it would carry out the college-based support for Y.
39. The Trust told me, on reflection, it should have been clearer with the ICB. It said it could not have provided OT support to Y at college. Its OT team is not commissioned to provide college-based services. The ICB would have needed to commission that specific support.
40. The ICB told me it was not aware no one could carry out the college-based support. It recognised if a better process had been in place, it would have had sight of the Trust’s OT assessment in July 2022. But I am persuaded the ICB was aware of the OT assessment in early August.
41. The main reason Y did not receive college-based OT support was due to the gap in the local commissioning arrangement. The ICB should have been aware of that and acted sooner to bridge that gap. I consider that was a missed opportunity by the ICB, which was fault.
42. Had the ICB not acted with fault, the Council might have been able to amend and finalise Section G of Y’s EHC plan before she started college in September 2022. The Council did not include Y’s OT support into Section G of the EHC plan until March 2023. In response to my investigation, the Council has accepted it should have reissued the EHC plan following the OT assessment sooner in August 2022. I agree the Council should have updated the EHC plan at that time. However, Y would not have received any OT support until the ICB had decided how to implement that for her.
43. The organisations told me Mr X wanted to resolve the complaint and complete any Ombudsmen investigation before agreeing to the OT support in Section G. I can understand why Mr X felt that way. But Y’s OT support was ready by the Summer term (April 2023). Mr X did not need to wait for the outcome of any complaint to allow Y to receive that support.
44. Therefore, on the balance of probabilities, I consider Y missed college-based OT support in the Autumn and Spring terms (September 2022 – March 2023). The ICB was responsible for that fault up to March 2023, but not afterwards.

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Agreed actions

45. Within one month of this decision:
• The Council and ICB should apologise to Mr X and Y for the uncertainty and distress caused by its lack of understanding how to respond to the Tribunal’s non-binding recommendation.
• The ICB should apologise to Mr X and Y for the frustration and distress caused by its delay arranging the Trust’s OT assessment.
• The Council and ICB should apologise to Mr X for the confusion caused by the three-month delay explaining why they would not carry out the private OT’s recommendations.
• The ICB should apologise to Y and pay her £1,000 to recognise the impact of the missed college‑based OT support during the Autumn 2022 and Spring 2023 terms.
• The Council and ICB should each pay Mr X £300 in recognition of his injustice.
46. Within two months, the Council, ICB and Trust should jointly meet to review Section G of Y’s EHC plan and decide how they will provide the OT support while Y remains in college.
47. Within two months, the ICB should review its local commissioning arrangement so young people with health needs in Section G of an EHC plan can receive support in colleges.
48. The organisations should provide us with evidence they have complied with the above actions.

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Final decision

49. The Council and ICB did not appropriately respond to the Tribunal’s non-binding recommendation for Section G of Y’s EHC plan. Those faults caused Y and Mr X uncertainty, frustration and distress.
50. Following the Trust’s OT assessment, the ICB significantly delayed considering how to implement the recommended support. As a result, Y missed college-based OT support in the Autumn and Spring terms (September 2022 – March 2023).

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman