The Ombudsman's final decision
Summary: Mrs B complains the Council has not provided occupational therapy for her son (“Y”) as outlined in his Education Health and Care Plan (“EHCP”). Mrs B says this has had a negative impact on her son’s progress with his education. The Ombudsman finds fault in the Council not ensuring Y receives the support outlined in his EHCP.
The complaint
The complainant, who I refer to as Mrs B, complains the Council has not ensured her son receives support from an occupational therapist (“OT”) as required by his EHCP. The Council says it has tried to arrange the support but had difficulties finding local providers. Mrs B says it has been nine months since Y’s EHCP was updated to include the occupational therapy. Without this support Y has not progressed with his handwriting.
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) 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)
How I considered this complaint
I considered the information Mrs B provided and spoke to her about the complaint. I sent a copy of my draft decision to the Council and Mrs B for their comments before making a final decision.
Background
In late September 2021 an updated EHCP plan was introduced for Y. The EHCP said that Y would need direct support from an OT. It said Y will have input from an OT to support him and the school with strategies and activities to support and promote development of core, shoulder and hand strength, handwriting skills and sensory processing. The EHCP outlined the number of sessions and hours to be provided.
In November 2021 Council said it tried to arrange this provision but was not successful in its enquiries to appoint an external provider. The EHCP was then updated again in December 2021 with the same provision for OT.
In February 2022 Mrs B complained the Council has still not provided the OT support. The Council held a meeting with Mrs B in early March 2022 to discuss her concerns. The Council responded to Mrs B’s complaint in late April 2022. It said it had identified an OT provider in March 2022 and the support would start after the easter break, which would have been late April 2022.
In early May 2022 Mrs B escalated her complaint as the support had not started. The Council responded two days later to say the support was due to begin on a date in late May 2022. Mrs B says the Council arranged four sessions with an external provider in June 2022 and would arrange further sessions in September 2022. She says the OT turned up for one of these sessions but none of the others. Mrs B notified the Council but says it has not yet arranged for the further sessions to take place.
Findings
The Council has a duty to ensure Y receives support as set out in his EHCP. I can see from the information provided that the Council took steps to try to arrange the OT support. However, it was not able to ensure he received this because of, to begin with, difficulties finding an external provider with capacity, then with the external provider not attending the arranged sessions.
I do not find there was specific fault on the part of the Council in the way it went about trying to arrange the provision. The Council contacted providers but could not secure a provider with capacity. It eventually did secure a provider, but they did not attend the sessions arranged except for one.
However, it remains the case that the Council had a duty to ensure the provision was in place. Y has suffered an injustice from the lack of the provision, in that it he has not had support required by his EHCP to progress with his handwriting. Therefore, even if the issues causing this were outside the control of individual Council officers, the failure to secure that provision still represents a service failure. The Ombudsman’s Guidance on Jurisdiction sets out clearly that a service failure of this nature can amount to fault and where it causes an injustice the person involved, we may recommend a remedy.
Consideration of Remedy Our Guidance on Remedies sets out that, where fault has resulted in a loss of educational provision, we will normally recommend a payment of between £200 and £600 per month to acknowledge the impact of the loss. On balance, I am of the view the remedy here should be at the lower end of the scale. This is because Y remained in school throughout the relevant time. The OT support was identified in the EHCP as important to meet Y’s education needs. However, the injustice is focused to the additional support the OT would provide with Y’s handwriting, alongside classroom learning.
Y has not received the required support throughout the school year since the EHCP was created, so from October 2021 to July 2022. A total of 10 months. I therefore recommend the Council pay B £2,000, which reflects the significant length of time Y went without provision required by his EHCP.
I have considered whether the injustice caused can be remedied to any extent by additional OT provision going forward. The Council suggested arranging extra OT sessions for longer, to the value of £2,000. Mrs considered this would not go far enough in addressing the injustice and distress caused to the family. She asked that the Council make a payment to recognise the distress and provide the extra provision.
Both parties appear to agree that additional OT support would help Y in his development going forward. It is not possible to put Y exactly back in the position he would have been in without the OT support he should have received over the space of a school year. However, it would provide help to catch up as far as possible. I therefore agree the Council should arrange additional OT support to the same value.
This additional support is separate to that which the Council already needs to arrange to meet the requirements of the existing EHCP for the current year. It is purely to catch up with what should have been provided in the previous year. Therefore, it does not need to involve any review of the EHCP. Arranging the extra support should not interfere with delivering what is already required.
I understand that, at this moment in time, the Council has a date for one session of OT support for the current year, with a view to arranging further dates. It does not yet have in place a firm schedule of regular OT support in line with the existing EHCP. It is therefore not clear if the Council is still experiencing some difficulties in commissioning OT support, or whether it may have the same difficulties arranging additional support.
With the above in mind, I recommend the Council commission a full schedule of additional OT support, with a confirmed provider, to the value of £2,000, within a month of this decision. If it has not been able to do this, and Mrs B wishes to, and is able to, source that support privately, the Council should pay the £2,000 to Mrs B for the purpose that she will privately arrange the additional OT support. Mrs B would need to provide relevant invoices to the Council.
I also recognise the lack of provision caused distress to Mrs B and time and trouble chasing the Council. I therefore recommend the Council pay Mrs B £150 to recognise the distress and time and trouble caused.
Agreed action
The Council has agreed to, within a month of this decision: Apologise to Mrs B for the failure to secure OT provision for Y over the space of 10 months Pay Mrs B £150 to reflect the distress and time and trouble caused by the lack of provision Commission an OT provider to deliver additional OT support to Y to the value of £2,000. Provide evidence of a confirmed provider and full schedule of sessions at which that support will be delivered If the Council has not been able to arrange a full schedule of OT support within a month of this decision, and Mrs B wishes to arrange that support privately, then pay any invoices from the privately arranged providers to the value of £2,000
Final decision
I find fault in the Council not ensuring Y received the support outlined in his EHCP.
Investigator's decision on behalf of the Ombudsman