The Ombudsman's final decision
Summary: Mrs X complained the Council failed to provide the Occupational Therapy outlined in her daughter, C’s, Education, Health and Care Plan after it was introduced in May 2021. We find the Council was at fault for failing to put the provision in place and failing to check it was in place. As a result, C missed out on Occupational Therapy provision for 12 months. The Council has agreed to review its processes and make a payment to remedy the injustice caused.
The complaint
Mrs X complained the Council has failed to provide the Occupational Therapy (OT) provision outlined in her daughter, C’s, Education, Health and Care Plan (EHCP). She says C has not received any OT provision between May 2021 and May 2022.
Mrs X says this has caused her a lot of stress and she is concerned C has missed out on vital sensory support for so long at a very crucial time in her life. She believes her daughter’s development has regressed.
The Ombudsman’s role and powers
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) 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.
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) Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
I have considered: The information provided by Mrs X and discussed the complaint with her.
The Council’s comments on the complaint and the supporting information it provided; and Relevant law and guidance.
Mrs X and the Council have now had an opportunity to comment on my draft decision. I have considered their comments before making a final decision.
What I found
The law and guidance 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.
What happened The Council issued C with an EHCP following a SEND Tribunal decision in May 2021. The EHCP placed C at a school in the neighbouring council which she started at in May. Some of the provision included in the EHCP was for C to receive daily and weekly OT sessions which were to be reviewed each term.
The school contacted the Council in mid-December to raise concerns that C was not receiving the OT support outlined in her EHCP. It contacted the Council again in January and February to chase this as it had not received a response.
In February 2022 Mrs X requested an early annual review because she was concerned the OT was not being provided.
The Council contacted its OT provider in late February 2022 about this. The OT provider suggested carrying out a further assessment. When the Council contacted Mrs X about this in late March 2022, she had already arranged a private assessment. In April Mrs X sent the Council a copy of a private OT assessment she had obtained for her daughter.
Mrs X raised a complaint in March 2022. The Council’s response offered to refund the £583.22 Mrs X had incurred paying for a private OT assessment. Mrs X provided her bank details in early April 2022.
In late April the Council discussed instructing the private occupational therapist to supply the provision outlined in their report. The therapist agreed to this but noted they could not start until early June. The Council confirmed its agreement in mid-May.
The Council issued the agreed refund on 11 August 2022.
Findings
There is no evidence to suggest the Council took steps to put the provision in place after the issuing of C’s EHCP in May 2021. The Council’s duty is to secure the provision specified in the EHCP and it is fault it has failed to do this.
The Council may have expected the school to arrange this. However, as it maintains responsibility for the provision, we would expect it to check the provision had been put in place shortly after the provision was agreed. The Council failed to take any action to check the OT provision was in place at the end of the summer term or during the autumn term.
During my investigation, the Council has advised me it checks the provision is in place at annual reviews. The Council should consider this at an annual review, but it should also be checking after a new or substantially changed EHCP is put in place. The fact the Council only checks at an annual review means there could be, and was in this instance, a delay in identifying any missing provision. Any missing provision would not be noticed until one year later, or earlier if a parent is aware and reports the issue.
The school contacted the Council in December and January, but it failed to act on or acknowledge the emails. This is further fault. The Council did respond to reports of missing provision in late February. At this point, C had already missed out on seven months of provision, not including the summer holidays.
Due to the passage of time OT professionals then felt it was necessary to carry out a new assessment. The Council then had to arrange an assessment and discuss start times. This caused a further three-month delay before OT sessions began for C.
Had the Council arranged the provision in May 2021 after the SEND Tribunal it is likely C would have started receiving OT provision in June 2021. This is a year earlier than she did start receiving it. Excluding holidays this means C missed 10 months of provision in her first year of school. This is a significant injustice.
The Council’s failure to provide the provision has caused Mrs X anxiety and frustration. This led to her requesting an early annual review and paying for her own occupational therapist assessment to determine the effect this had on C. She incurred the costs of this herself. Whilst the Council repaid this loss to Mrs X, it did so in August 2022. This was four months after she had provided her bank details, which is fault. The Council has addressed the financial impact but not the anxiety and frustration caused.
Recommended action The Council has agreed, within one month of the final decision, to: Apologise to Mrs X for the injustice caused by the failures identified.
Pay Mrs X £250 for the stress and frustration caused by the delays.
Pay Mrs X, for the benefit of C, £1,000 for the lost OT provision. This is calculated on the basis of £100 over 10 months of missed provision.
The Council has agreed, within three months of the final decision, to: Review its policy and processes to ensure it has, and follows, steps to check the provision in new or amended EHCPs is being delivered.
Improve its handling of communication it receives to ensure that emails are acknowledged and acted on promptly, by issuing written reminders to relevant staff to ensure.
Final decision
I have completed my investigation. I found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman