The Ombudsman's final decision
Summary: Mrs X complained the Council has not provided psychotherapy specified in her son, Y’s, Education, Health and Care Plan (EHCP). Mrs X also complained about the delays she experienced and poor communication from the Council. Mrs X says this has caused her distress and she has been put to time and trouble to complain and Y has missed out on psychotherapy. The Council failed to ensure the provision specified in Y’s plan was delivered, did not adhere to statutory timescales and delayed responding to Mrs X’s complaint. It has agreed to provide remedies for the injustice these failings caused.
The complaint
Mrs X complains the Council has not provided psychotherapy specified in section F of her son, Y’s, Education, Health and Care Plan (EHCP). Mrs X also complained about the delays she experienced and poor communication from the Council. This has caused distress to Mrs X who has taken time and trouble to complain, and Y has missed out on psychotherapy service specified in his EHCP.
The Ombudsman’s role and powers
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) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I read Mrs X’s complaint and spoke with her about it on the phone.
I considered information provided by Mrs X and the Council.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Background information 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.
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.
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) The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHCP. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to: check the special educational provision is in place when a new or substantially different EHCP is issued or there is a change in placement; check the provision at least annually via the review process; and investigate complaints or concerns that provision is not in place at any time.
The procedure for reviewing and amending EHCPs is set out in legislation and government guidance.
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) What happened This is a summary of events, outlining key facts and does not cover everything that has occurred in the case.
The Council first issued an EHCP for Y in December 2017. It then held an emergency annual review in February 2018 and issued an updated EHCP with no reference to psychotherapy in section F (the part of the EHCP which sets out the special educational provision to meet the needs identified).
Y started at an independent specialist school in May 2018 and was referred to the psychotherapist in January 2019. Following the referral, it was decided Y would access individual child psychoanalytic psychotherapy. The EHCP was not updated at this point to include psychotherapy.
The school held annual reviews for Y in January 2019 and November 2019. The paperwork for the annual reviews was not completed and sent to Mrs X until June 2020.
Psychotherapy sessions continued until the last session in February 2020 when, due to the Covid 19 pandemic, sessions changed to telephone contact with Mrs X. The last telephone contact with Mrs X and the psychotherapist was in July 2020. The psychotherapist then left the specialist school, and the family were not informed.
The Council issued an updated EHCP in July 2020, which included psychotherapy for the first time.
The EHCP states Y is “to have weekly access to the Child and Adolescent Psychotherapist to enable him to start to understand his anxieties and help with his fears”.
In September 2021, Mrs X became aware of the psychotherapist leaving the school in 2020. She complained to the Council the psychotherapy provision specified in section F of the EHCP, had not been provided since the psychotherapist’s last session with Y in February 2020, before the psychotherapist left the school.
The Council wrote a letter to Mrs X in October 2021 responding to the complaint. The letter confirmed a senior assessment co-ordinator in the education, health and care assessment team would attend Y’s annual review on behalf of the Council.
The annual review took place in November 2021 with no representative from the Council. The Council confirmed to Mrs X the therapy was no longer available at school. It said it would explore options and feedback to Mrs X.
After the annual review in November 2021, the Council confirmed the EHCP would be maintained (not changed) in January 2022.
Mrs X contacted the Council in February 2022, asking what psychotherapy would be provided. Mrs X asked why the Council did not attend the annual review as agreed in the correspondence in October 2021. Mrs X raised concerns the timescales for providing paperwork before and after the annual review were not met.
The Council responded to Mrs X’s complaint in May 2022. This response confirmed a senior officer in the EHCP team would be allocated to work with Mrs X. The Council confirmed it intended to appoint an interim educational psychologist and follow up Children and young people’s mental health services (CAMHS) involvement.
Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the complaint investigating fully, the Council to apologise and make changes so this does not happen in the future.
In response to my enquiries the Council stated the school confirmed “there was a gap between the previous member of staff who supported Y leaving and the new member of staff starting, so there was an identified period when psychotherapy provision was not provided”. The Council confirmed other members of the school’s team continued to work with Y providing talking therapy.
The Council stated there is not a statutory requirement for it to attend annual reviews although it aims to attend. It said it was not advised the November 2021 annual review was being held so was unable to consider attendance. In the Councils initial correspondence to Mrs X in October 2021, the Council stated “given the concerns you raise in your letter it has been arranged for a senior member of its staff in the Education, Health and Care assessment team to attend Y’s annual review on behalf of the local authority. The Council will contact Y’s school to discuss concerns and check the details of the meeting”.
In response to my further enquiries, the Council stated the first time the psychotherapy provision was included in the EHCP was July 2020, so it was under no duty to provide psychotherapy support prior to this date. The annual review paperwork from January 2019 and November 2019 was not provided to Mrs X within statutory timescales and only provided in June 2020.
My findings
The comments made in the letter in October 2021 confirm the Council was aware of the annual review which took place in November 2021. It did not attend the meeting despite giving a commitment to do so. It also failed to issue its decision following the review within the four-week statutory timescale. This is fault and caused Mrs X distress.
If the Council had completed the annual review paperwork and provided this to Mrs X within the statutory timescales and the EHCP updated accordingly, it is reasonable to say psychotherapy may have been included. It was being delivered prior to July 2020 and the psychotherapist report from 2019 confirmed Y does need weekly psychotherapy sessions. If the Council decided not to amend the plan to include psychotherapy, Mrs X would have had the option to appeal this once the final plan was issued. The delay caused Mrs X frustration and delayed her potential right to appeal.
Y has been without psychotherapy specified in his EHCP since July 2020. However, if the Council had completed the paperwork following the annual review within statutory timescales, the provision may have been included in Y’s EHCP prior to July 2020. The Council has confirmed the new therapist started to deliver provision to Y in April 2022. The Council has failed to ensure provision specified in section F of the EHCP has been secured. This is fault that has resulted in Y being without the psychotherapy provision for 5 school terms.
The Council has failed to provide documentation and updates to the EHCP within statutory timescales following annual reviews, which has resulted in Mrs X being unable to challenge the content of the EHCP through the tribunal process. This is fault and has caused Mrs X distress.
Mrs X has experienced delay in dealing with the Council and did not have her complaint responded to for eight months. This is fault and has caused distress for Mrs X. Y has not access psychotherapy specified in his EHCP. The Council acknowledges this fault and has apologised to Mrs X for its part in the delay. It has reviewed its processes to ensure closer monitoring of provision in specialist placements.
Agreed action
To remedy the outstanding injustice caused to Mrs X and Y, within one month of the date of the final decision, the Council should: Apologise to Mrs X for not ensuring Y received the psychotherapy included in his EHCP, delays in providing EHCP paperwork and delays in the complaint process.
Pay Mrs X £250 as an acknowledgement of the time and trouble this has caused her in pursuing this complaint.
Pay Mrs X £500 to acknowledge the impact of Y not receiving the psychotherapy specified in his EHCP for 5 terms. This money should be used for Y’s benefit.
The Council should provide evidence of the actions taken to satisfy the recommendations.
Final decision
I have completed my investigation. I have found fault by the Council leading to an injustice. The Council has agreed to take action to remedy that injustice.
Investigator's decision on behalf of the Ombudsman