Summary: The complainant says that her disabled child has been without the specific therapy, specified in his Education, Health and Care Plan, for a two year period. The Ombudsman has found fault by the Council in its failure to provide this and the Council has accepted the recommended actions to remedy the resulting injustice. The Ombudsman has therefore completed his investigation and is closing the complaint.

The complaint

1. The complainant, who I refer to as Ms X, complains on behalf of her disabled son, Child B, and on behalf of herself.
2. This draft decision statement concerns the Council’s failure to make the provision, specified in Child B’s Education, Health and Care (EHC) Plan. In particular, Ms X says that the Council:
1. has failed to provide the required hydrotherapy pool, with a treatment programme provided by a qualified therapist, to Child B. Child B is profoundly disabled and has very limited mobility. He had been without the hydrotherapy sessions for nearly two years (2017-2019) and Ms X says that it has had an adverse impact on him. This provision is specified in Child B’s EHC Plan and therefore the Council is obliged to provide it. The Council made a financial offer to Ms X to make her own arrangement. But she says that the money offered would not have provided the required treatment;
2. that the Council delayed in making arrangements for Child B to transfer to a school in an alternative school, (School Z), which does have a hydrotherapy pool, and which Ms X considers is an appropriate school placement. Child B finally started at School Z in September 2019.
3. Ms X has another complaint about the actions of the Children with Disabilities Team, and this is being dealt with under our reference of 19 009 190.

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What I have investigated

4. I am considering the actions of the Council’s Special Educational Needs department. Matters, which I cannot investigate, are set out in the last paragraph of this statement.

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The Ombudsman’s role and powers

5. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. 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))
6. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
7. The Special Educational Needs and Disability (SEND)Tribunal deals with disputes about assessments and provision for special educational needs. The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin) that the Ombudsmen cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal.
8. The Ombudsman cannot investigate internal matters within schools.
9. If we are satisfied with a council’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)

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How I considered this complaint

10. I have made enquiries of the Council and have obtained written comments from it and from Ms X. I have also spoken to her on the telephone.
11. I issued a draft decision statement to Ms X and to the Council. I have taken into account their comments before reaching my final decision.
12. The final statement will be sent to the Office for Standards in Education, Children Services and Skills (Ofsted) in accordance with the arrangement the Ombudsman has to share findings with this organisation.

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What I found.

The legal context for children with an Education, Health and Care Plan

13. Since 2014 a child with special educational needs may have an Education, Health and Care Plan (EHC Plan). This Plan sets out the child’s needs and what arrangements should be made to meet them. The Ombudsman cannot direct a council to change the sections about education or name a different school in an EHC Plan. Only the Special Educational Needs and Disability First Tier Tribunal (SEND Tribunal) can do that.
14. The Council is responsible for making sure that all the arrangements specified in the EHC Plan are put in place. However, he can look at other matters, such as where support set out in a Plan has not been provided or where there have been delays in the process.
15. Section 324(5)(a)(i) of the Education Act 1996 states that where a council maintains an EHC Plan, then unless the child’s parent has made suitable arrangements, that council must ensure the special educational provision specified in the EHC Plan is provided to the child.
16. Part F of the EHC Plan describes the special educational provision a child will receive. The Council has a duty to ensure that what it has written in Part F is provided to the child.
17. The Council may ask for another organisation, such as an NHS Trust or independent source, to provide services such as therapies in Part F of an EHC Plan. However, case law (R v Lancashire County Council ex parte Moore [1989]) has confirmed it is the “ultimate responsibility” of the Council to ensure the provision named in a statement of special educational needs, now an EHC Plan, is delivered.
18. The Special Educational Needs and Disability Code of Practice: 0 to 25 years January 2015 (the Code) sets out requirements for joint commissioning arrangements for provision for children and young people with SEN that require health inputs.
19. The Code says: “Partners must also be clear about who is responsible for delivering what, who the decision-makers are in education, health and social care, and how partners will hold each other to account in the event of a disagreement. The partners must be able to make a decision on how they will meet the needs of children and young people with SEN or disabilities in every case.”
20. The council and clinical commissioning group (CCG) are expected to “consider the role that private, voluntary and community sector providers can play in delivering services.” (3.17 of the Code).
21. The Special Educational Needs and Disability Regulations states that, councils must ensure that a meeting to review the EHC Plan is held annually and they can require the head teacher to arrange and hold the meeting.
22. The council must inform parents within four weeks of the review, whether it will amend the Plan, keep it as it is or cease to maintain the Plan. Councils should notify the parents, young person and school of its decision.
23. Where the council is considering amending an EHC Plan, following a review, it must send the child’s parent or the young person a copy of the EHC Plan together with a notice specifying the proposed amendments, together with copies of any evidence which supports those amendments. The final amended Plan should be issued within 12 weeks of the annual review meeting.

Key facts

24. Child B has an EHC Plan. Ms X also has her own significant health difficulties and has problems lifting Child B. She left her employment to care for Child B.
25. Ms X appealed Child B’s EHC Plan in September 2017. The issue of hydrotherapy was considered at the appeal. It was agreed that Child B required this. However, the occupational therapist at the school, which Child B then attended, School Y, could not provide support at the school’s hydrotherapy pool because it was not a National Health Service (NHS) facility.
26. At the appeal of September 2017, it was agreed that the above support needed to be sourced elsewhere by the Council and the costs agreed.
27. At Section F of Child B’s final EHC Plan of October 2017, it stated that Child B required the following:

• a hydrotherapy programme prepared by a physiotherapist;
• a 45 minute visit by the physiotherapist every term to prepare a programme for the school staff to deliver;
• physiotherapist to instruct school staff regarding correct provision of hydrotherapy and will monitor delivery and progress.

28. On 3 June 2018, Ms X complained to the Council that this programme had not been provided to Child B since September 2017. She says that he received no hydrotherapy and no therapist was commissioned.
29. The Council says that the pool could not be used because of disrepair. In September 2018, the Council says that Child B had access to a spa pool, but Ms X says that this was more a leisure pool and a hot tub. There was no hydrotherapy pool and there was no specialist physiotherapy input as required under Child B’s Plan.
30. It appears that the Council did contact the physiotherapy service to try to resolve the lack of therapy. But its efforts were unsuccessful.
31. In November 2018, Ms X again complained that Child B was not receiving the provision as required. At the end of November, the Council replied and offered Ms X three options: to receive a personal budget; to commission a therapist to devise a programme that could be adapted at the local leisure pool or for Ms X to ask for an annual review and request a change of school.
32. Ms X was interested in the third option, but she had some questions about free transport for Child B. On 24 January 2019, the Council replied to her queries.
33. In January 2019, there was an annual review and a placement at School Z was agreed as an alternative possibility. In April 2019, Ms X made a further complaint about the delay in resolving the matter.
34. The Council says that it did not receive the annual review papers from School Y until 23 May. School Y indicated it could still meet Child B’s needs. However, as Ms X had expressed an interest in School Z, the Council consulted it and it agreed to offer a place.
35. The Council issued an amended final Plan in July 2019, naming School Z. Child B started there in September 2019 and, since then has received therapy at its hydrotherapy pool.

The Council’s comments

36. The Council says that, when it learnt of the lack of hydrotherapy for Child B, in June 2018, it offered Ms X direct payments to make her own arrangements or an alternative school, with a suitable pool. Initially, Ms X did not want to move Child B from School Y because he was settled. But she subsequently decided that this was appropriate.
37. The Council has confirmed that Child B has missed out on hydrotherapy for two years, as Ms X says. But it was not aware of this until June 2018.
38. The Council says that maintained special schools receive funding in recognition of the additional costs incurred when supporting pupils with SEN. The school’s board of governors is responsible for the managing this additional funding and it is not required to provide a breakdown of how the formula allocation is spent.
39. The Council apologies that the situation could not be resolved sooner and any distress that this has caused to Ms X and to Child B.

Ms X’s views

40. Ms X has provided evidence to the Ombudsman of the importance of hydrotherapy for Child B from a specialist Children’s physiotherapist. Hydrotherapy can help with a range of motion but, because Child B has not received this for two years, his range is very limited. He is now unable to cross or straighten his legs, as he did before, and his ability to stand has been impaired.
41. Ms X says that School Y received a budget of nearly £12,000 but it appeared to her that the school often said it could not help Child B to access his therapy programmes because of a funding issue.
42. Ms X says that she only received the final EHC Plan because of making a complaint to the Ombudsman.

Analysis

43. It seems that the Council accepts that there was a delay in resolving the lack of appropriate therapy for Child B at a hydrotherapy pool. In June 2018, it was made aware of the situation. While I recognise that there was no easy solution, the fact remained that Child B did not receive the therapy specified in his Plan. The Council had a duty to secure the therapy at a hydrotherapy pool, whether it provided it directly itself or arranged for it to be delivered by another agency.
44. The Council had agreed to provide this provision and agreed in September/October 2017, at a Tribunal hearing, that it would need to arrange this.
45. By June 2018, it was made aware that the hydrotherapy pool at School Y was not working and Ms X complained that Child B had not received the required therapy in the pool since September 2017. The Council contacted School Y and learnt that the pool would be out of action for the foreseeable future.
46. I accept that Child B may not have received the required therapy as from September 2017. But it seems that the Council only became aware of this in June 2018. School Y could have told the Council this sooner. But the Ombudsman cannot investigate the actions within a school.
47. So, taking the date of June 2018, it seems that the Council took 15 months to resolve this, the solution eventually being that Child B changed school placements. On that basis, the Council has been at fault because it had a duty to ensure this provision was provided. But I think it was reasonable to give the Council an opportunity to resolve this lack of therapy once it became aware of the problem. Therefore, I consider that, by September 2018, there should have been a solution.
48. However, it was another 12 months before this was the case and therefore Child B was deprived of a therapy which was specified in his EHC Plan to meet his needs.
49. Ms X claims that, as a result of this lost provision, Child B’s mobility has suffered significantly to the extent that he is now wheelchair bound and this would not have happened if the hydrotherapy pool and therapy had been provided.
50. I accept that this might have been the case although I cannot make any finding on the extent of the possible harm caused to Child B as a result. Ms X is aware that she has the option of pursuing a claim of negligence about this and is considering this.

Agreed action

51. Ms X has had to chase up her complaints to find a solution for Child B and chase up the completion of the final EHC Plan. Ms X considers that the final Plan should have been issued by April 2019 and Child B could have changed schools at this point.
52. This ‘chasing up’ and making complaints has caused Ms X avoidable distress and time and trouble. Given the extent of Child B’s needs, and her own medical difficulties, this would have caused her more avoidable distress than for other parents/carers. I recommend that a payment of £500 is made to her to recognise this. The Council has agreed to this.
53. The resulting injustice to Child B by the Council’s faults is lost hydrotherapy in a specialist pool for him. It was important therapy for him, and Ms X had an expectation that this would be provided. Minus the school holidays and half terms, there is about 8 months of this lost therapy.
54. I consider a payment of £150.00 per month of lost therapy would be appropriate and therefore the Council should make a payment of £1,200 to recognise its delay in resolving this lack of specialist help. The Council has agreed to this payment.
55. However, I am making no finding about the extent of the avoidable harm caused to Child B by this delay. Ms X has the option of pursuing a claim of harm through legal channels and the Ombudsman normally considers that this is an appropriate alternative remedy for complainants for these types of complaints.
56. The Council also needs to remind its schools and specialist schools of the importance of telling it when they cannot provide what has been agreed in pupils’ EHC Plans. The Council has agreed to do this.
57. The Council has also agreed to implement these actions within two months of the date of the final statement.

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Final decision

58. I find that the Council has been at fault causing injustice to Ms X and to Child B. Because the Council has agreed to the recommended actions, I will now close the complaint.

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Parts of the complaint that I did not investigate

59. The Ombudsman cannot investigate actions within a school. Therefore, its delay in informing the Council about the hydrotherapy pool being out of action and the way the board of governors has spent its allocated funding are not matters the Ombudsman can investigate. These are complaints which Ms X can pursue with the school and board of governors.

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Investigator's decision on behalf of the Ombudsman