The Ombudsman's final decision
Summary: Mrs X complained the Council failed to provide her child (Y) with occupational therapy provision as set out in his Education, Health and Care plan, delays in considering a request for a Personal Budget and poor complaint handling.
We found the Council at fault which caused injustice to Y and Mrs X avoidable frustration, uncertainty, and distress. The Council should apologise and make symbolic payments to Mrs X to reflect the injustice caused.
The complaint
Mrs X complains the Council: a) Failed to provide occupational therapy (OT) provision as set out in her son (Y’s) Education, Health, and Care (EHC) plan.
b) Did not consider her request for a Personal Budget so she could arrange a private Occupational Therapist to deliver Y’s provision.
c) Did not adhere to its complaint response commitments after upholding her complaint.
Mrs X says Y is struggling in school due to the missed OT provision and not progressing in his education. She says this is also impacting his behaviour at home. She says she also experienced frustration, uncertainty and distress trying to resolve the complaint.
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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended) We must also consider whether any fault has had an adverse impact on the person making the complaint. We 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) 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 have considered information provided by Mrs X and discussed the complaint with her. I also made enquiries with the Council and considered its response and evidence provided.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before reaching a final decision.
What I found
Relevant law and guidance A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
Personal Budgets A Personal Budget is an amount of money identified by the local authority to deliver a provision set out in an EHC plan where the parent or young person is involved in securing that provision.
Local authorities must consider each request for a Personal Budget on its individual merits and prepare a Personal Budget in each case unless the sum is part of a larger amount which would have an adverse impact on services provided for other EHC plan holders or would not be an efficient use of local authority resources.
Local Authority should inform the child’s parent of its decision and reasons in response to a request for a Personal Budget and ensure services are personalised through other means if necessary.
What happened Mrs X’s son (Y) has health issues and is autistic. Y has had an Education, Health, and Care plan from a young age. Y’s final EHC plan dated 23 March 2023 provided for a special occupational therapy (OT) provision of: 30 minutes weekly 1-to-1 sessions 30 minutes additional fortnightly sessions Mrs X said, shortly after Y’s EHC plan was issued, his school informed her it could no longer provide Y’s OT provision as its occupational therapist had left post.
Mrs X said she emailed the Council’s SEND officer about the situation but did not receive a response.
Mrs X’s complaint On 5 May, Mrs X complained to the Council. She said it had failed to arrange Y’s OT provision in line with his EHC plan and respond to her communications. She also said she would arrange Y’s OT provision privately and recover the costs from the Council.
The Council’s complaint responses In its stage one response (29 May), the Council said: It was still trying to recruit a replacement occupational therapist.
Its special educational needs (SEND) team would explore alternative arrangements to provide Y’s OT provision.
A special panel would need to consider reimbursement of any costs Mrs X incurred in arranging Y’s OT provision privately.
Y’s caseworker had also left post, but Mrs X could refer any further queries to a senior manager who now would have oversight of Y’s case.
In reply, Mrs X provided the Council with a quote for a private occupational therapist. The Council confirmed it would consider this information, but Mrs X said she did not receive any further update.
In early June, Mrs X complained to the Council again about the lack of progress. In reply, the Council escalated Mrs X’s compliant for a stage two review.
The records do not show any further contact with Mrs X by the Council until its stage two response (11 August), in which the Council: Accepted delay in deciding whether it would agree a Personal Budget to cover Y’s OT provision or reimburse Mrs Y’s private OT costs.
Confirmed, within 10 working days, it would apologise to Mrs X and make a payment to her for the delays and any uncertainty caused.
Said it would provide an outcome of its special panel meeting about Mrs X’s reimbursement as soon as possible.
Confirmed it would follow up with Y’s school in September to confirm he was receiving OT provision in line with his EHC plan.
Mrs X told us Y did not have his OT provision in place in September 2023. She said the Council also failed to complete the actions set out in its stage two response. Unhappy with the Council’s response Mrs X approached the Ombudsman.
Mrs X explained she could not afford to arrange private OT provision for Y. She had wanted the Council to confirm a Personal Budget for Y. She said Y did not receive all his OT provision until January 2024. However, the records say the Council arranged and checked provision was in place from September 2023.
The Council’s response to our enquiries: The Council has confirmed: It failed to provide Y’s OT provision between March and September 2023.
Since September 2023, Y has received OT provision although he did not attend some sessions.
It considered Mrs X’s Personal Budget request in August 2023, but failed to progress it due to team capacity and lack of an allocated officer.
It has asked Y’s case officer to return to the panel to check if private OT provision is in line with Y’s EHC plan and to request a Personal Budget to cover any fees paid by Mrs X.
It had written a letter of apology to Mrs X for the delay in deciding Y’s Personal Budget and paid her £200 in recognition of her time and trouble in pursuing her complaint. However, the records show these actions were not completed until late October 2023.
Was there fault and did it cause injustice?
i) Mrs X said the Council failed to provide occupational therapy (OT) provision as set out in her son (Y’s) Education, Health, and Care (EHC) plan.
The evidence shows Y did not receive the OT provision as set out in his final EHC plan (Paragraph 14) between 21 April and end of the summer term in July 2023. The Council has also confirmed it failed to provide Y’s OT provision during this period due to recruitment issues but secured provision from the start of the new school year in September 2023 (Paragraph 24). The Council’s failure to provide Y with his OT provision was inconsistent with its statutory duties as explained at paragraph 10 (above) and is fault. Based on the evidence seen, Y missed out on approximately 12 sessions of his weekly 1-to-1 OT provision and six of his fortnightly OT sessions during the above period (18 sessions in total). This is a significant number of missed provision and would have impacted his academic development and caused Mrs X uncertainty and distress. This is injustice.
ii) Mrs X said the Council did not consider her request for a Personal Budget so she could arrange a private Occupational Therapist to deliver Y’s provision.
The available records show in late April 2023, Mrs X told the Council Y’s school was no longer able to provide his OT provision. In her early May complaint, Mrs X mentioned she would arrange private OT sessions and recover costs from the Council. In its stage one complaint response (Paragraph 18) the Council told Mrs X its special panel would need to consider her request. Mrs X has since confirmed she could not afford the private OT costs and did not make any payments. She said she was waiting for the Council’s decision about Y’s Personal Budget to resolve the situation.
The records show the special panel did not consider Mrs X’s request for a Personal Budget until early August 2023. The Council has not evidenced the reasons for the delay between May and August 2023. However, in its stage two response (Paragraph 21) the Council accepted it had delayed and said it would provide an outcome as soon as possible. In response to our later enquiries, it said it subsequently failed to progress the issue from August 2023 due to staffing issues and was still trying to obtain a definitive outcome. I find the Council’s continued delay in reaching a decision about Y’s Personal Budget is fault. In my view, the delay also resulted in a missed earlier opportunity to secure Y’s OT provision. This caused Mrs X further avoidable uncertainty about the outcome and distress as Y continued to miss his special educational provision. This is injustice.
iii) Mrs X said the Council did not adhere to its stage two complaint response commitments after upholding her complaint.
The records show the Council issued an apology and made a payment to Mrs X as set out in its stage two complaints response (Paragraph 21). However, it did not complete these actions until late October. This was not within 10 working days as promised in its stage two complaint response and is fault. It caused Mrs X further avoidable uncertainty and frustration about the Council’s handling of her complaint, and she felt the need to approach the Ombudsman.
I also note the Council had not sent Mrs X its special panel’s decision by the time she approached the Ombudsman. I have already found fault in relation to that delay at paragraph 27 (above). Mrs X said the Council also did not check if Y had his OT provision in September 2023 and he did not receive all his provision until January 2024. However, the records say the Council arranged and checked provision was in place from September 2023. I therefore do not find fault in respect of this strand of the Council’s stage two commitment to Mrs Y.
Agrred action The Council has already apologised to Mrs X for the delay in providing a decision about Y’s personal budget. It has also made a payment to Mrs X of £200 for her time and trouble in pursuing her complaint. This is a partial remedy, but I will make further recommendations to reflect the full extent of the injustice to Y and Mrs X.
Within one month of my final decision date, the Council should: Write to Mrs X and apologise for: Its failure to ensure Y received OT provision as set out in his EHC plan from April 2023 until the end of the summer term and any impact on his education and any uncertainty and distress caused to Mrs X.
Its delay in providing a decision following Mrs X’s request for a Personal Budget for Y and any avoidable uncertainty and distress caused to her.
Its delay in issuing a letter of apology and payment in line with its stage two complaint response and any avoidable uncertainty and frustration caused to Mrs X.
Make a payment to Mrs X of £200 in recognition of her for avoidable uncertainty, frustration and distress.
Make a payment to Mrs X of £600 for Y’s missed OT provision.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I find the Council at fault which caused injustice to Y and Mrs X avoidable frustration, uncertainty, and distress. The Council should apologise and make symbolic payments to Mrs X to reflect the injustice caused.
I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman