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London Borough of Redbridge (21 002 037)

Category : Education > COVID-19

Decision : Upheld

Decision date : 10 Sep 2021

The Ombudsman's final decision:

Summary: Ms B complained that the Council failed to ensure her child received occupational therapy sessions specified in his Education, Health and Care plan. We found fault by the Council in this matter, causing injustice for which a remedy has been agreed.

The complaint

  1. The complainant, whom I shall call Ms B, complained that the Council failed to ensure the provision of occupational therapy (OT) support specified in her child’s Education Health and Care (EHC) Plan. Ms B says that this failure caused her child to increase sensory seeking behaviours, and caused stress to the family. In addition, Ms B also complained about poor communication by the Council and poor complaint-handling.

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The Ombudsman’s role and powers

  1. 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)
  2. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  3. We may investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  4. 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

  1. I considered all the information provided by Ms B about her complaint. I also took account of information provided by the Council including copies of the child’s EHC plan and of the complaints correspondence.
  2. I have had regard to the Ombudsman’s guidance on remedies.
  3. Ms B and the Council had an opportunity to comment on a draft of this decision. I considered all comments received in response before making a final decision.

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What I found

Legal and administrative information

  1. A child with special educational needs 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.

What happened in this case
Background

  1. Ms B’s child, C, has a diagnosis of autistic spectrum disorder. He has an EHC plan.
  2. C’s EHC plan specifies his need for OT input as three blocks in school per year, with each block consisting of six sessions lasting 45 minutes each with a further 15 minutes liaising with the learning support assistant. The plan sets out that the occupational therapist is to advise and train the child and staff to address the functional aspects of the child’s attention, physical and sensory difficulties in the classroom, around the whole-school environment and during practical activities, self-care, and learning tasks. The plan states that the therapist will design and implement a programme to address the child’s sensory needs for school staff to follow. This will include movement / sensory breaks that will help increase attention and concentration and improve behaviour. It is noted that this needs to be incorporated in daily activities both at home and in school. The aim of the therapy is to improve behaviour by improvement of sensory skills.

Ms B complains to the Council

  1. Ms B complained to Council on 5 February 2021 that C had not received any OT from 4 January 2021 to date. She noted that the therapist providing the service had left the employ of the NHS foundation trust, from which the Council commissioned its therapeutic services for EHC plan requirements.
  2. The Council replied to the complaint at the first stage of its procedure on 24 February, three days outside the published ten working day timescale.
  3. Regarding the lack of service from January 2021, the Council said the OT service was currently experiencing significant staffing issues, largely due to a lack of available occupational therapists, many of whom were instead working within hospital discharge units as a direct impact of the ongoing Covid19 pandemic. It apologised that C’s provision had been affected. The Council said it was meeting regularly with NHS staff to try and address the shortfall and ensure provision was back in place as soon as possible. It said that it would ensure once service delivery resumed that assessment would take place to ensure that the impact of missed sessions is accounted for, and that future provision delivery would be amended as necessary based on assessed needs at that time.
  4. Ms B was dissatisfied with the Council’s response and wrote back on 5 March to request escalation of her complaint to the second stage of the Council’s complaints procedure.
  5. She set out that the Council had a legal duty to secure the provision specified in C’s EHC plan and that the pandemic was not to be used as a reason for non-delivery. She said OT support was necessary to adjust C’s ‘sensory diet’ in terms of the kind of support he needed and its quantity: he needed continual regular direct OT input to help regulate and meet his needs. She felt that assessment after the fact could not address this, and she considered that the Council should have sourced and commissioned alternative OT services. She referred to stress and sensory overload suffered by C because of the lack of provision. Ms B requested financial compensation at private OT rates for all sessions missed since January 2021, and for the Council to commission another OT service to support C until the NHS Trust had capacity to do so.
  6. The Council replied on 8 April. This was 20 days outside the Council’s published timescale which says that it will decide within two working days whether it will accept a complaint as a qualifying stage 2 complaint. The Council apologised for the delay. It said that it declined to accept this complaint at stage 2 on the grounds that it had been upheld, and that investigation at stage 2 would not produce a demonstrably different outcome than that at stage 1. The Council noted Ms B’s request for reimbursement of expenses in respect of a private occupational therapist and asked for invoices so this could be considered.
  7. Ms B subsequently confirmed she had not engaged a private OT, having no funds available to do so, and therefore had no such invoices she could present.
  8. C’s OT provision resumed from 6 May 2021.
  9. On 18 August 2021 the Council wrote to schools and parents advising that from September the OT service would be managed by the Council, and that therapists working for the NHS Trust (the previous provider) had been offered posts with the Council and it was hoped most would transfer. Additional staff would also be recruited. The letter said that as part of the transfer some of the child’s records relating to their provision might also transfer to the Council. While the Council hoped that children would be able to retain their existing therapist, this could not be guaranteed.

Analysis

  1. Notwithstanding the issues around staffing, exacerbated by the pandemic, in the school spring term, January to May 2021, C did not have any OT input. This was contrary to his EHC plan and was fault. There was further fault in the delays identified in the Council’s complaints procedure.
  2. Ms B reports that the lack of OT input in the relevant period had a detrimental impact on her son’s behaviour and caused stress to the family. In addition, she was put to some time and trouble in pursuing the complaint.

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Agreed action

  1. The Council has set out steps to address issues arising from this complaint, including where appropriate identifying any additional therapy required to take account of the missed sessions, and, going forward, to bring the therapy services in-house. These are appropriate measures. However, a further remedy is appropriate in recognition of distress, and time and trouble taken in pursuing the complaint.
  2. I therefore recommended that within four weeks of the date of the decision on this complaint the Council:
  • Issues Ms B with a formal written apology; and
  • Pays her £250.
  1. I also recommended that within three months of the date of the decision on this complaint the Council takes steps to identify and contact others with EHC plans who may have been similarly affected by the lack of therapy services, and ensure that the impact of missed sessions is accounted for, with future provision amended as necessary.
  2. The Council has agreed to my recommendations.

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Final decision

  1. Subject to further comments by Ms B and the Council, I have completed my investigation on the basis set out above.
  2. 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 have shared this decision with Ofsted.

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Investigator's decision on behalf of the Ombudsman

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