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Sefton Metropolitan Borough Council (21 009 708)

Category : Education > COVID-19

Decision : Upheld

Decision date : 09 Jun 2022

The Ombudsman's final decision:

Summary: We upheld Ms X’s complaint about a lack of hydrotherapy for her son, Y. The Council accepted there was fault in the way it handled Y’s hydrotherapy provision and offered a remedy. We identified further injustice to Ms X and Y in the form of distress and the Council agreed to take further action to remedy this injustice.

The complaint

  1. Ms X complains on behalf of her son Y about a lack of hydrotherapy provision once he transitioned to college. She says the Council removed the funding for the therapy unlawfully. Ms X says the Council did not listen to her or Y or follow its own procedures. She says Y was distressed by the lack of provision and she was upset by poor communication from the Council. She would like the Council to apologise to them and to improve its communication. Ms X and Y would also like an opportunity to meet with the Council to explain how this has affected them.

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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. 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 have considered the complaint made by Ms X and the documents she provided.
  2. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
  3. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Education, health and care plans

  1. The Children and Families Act 2014 sets out how support will be provided to young people with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ (‘the Code’) gives more details about how councils, schools and others should carry out their duties.
  2. A young person with special educational needs may have an education, health and care (EHC) plan. This sets out the young person’s needs and what arrangements should be made to meet them.
  3. Councils must make sure special educational needs provision in the EHC plan is 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.
  4. 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 EHC plan. 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 EHC plan 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
  5. EHC plans must be reviewed annually. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
  6. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
  7. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision named in the EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Impact of COVID-19

  1. From March to May 2020, England was in the first of three national lockdowns. People could only leave their home for limited purposes and many services, including pools, were closed. A second national lockdown came into force from November to December 2020. The third national lockdown was in place from January to March 2021 with restrictions on pool opening being lifted in April.

Council’s complaints procedure

  1. The Council has a two-stage complaints procedure. At stage one, a manager investigates and responses within 15 working days. At stage two, a senior manager will investigate and respond in 10 working days.

What happened

  1. Y has a disability which means he has very limited movement and experiences joint pain. He uses a wheelchair.
  2. Y has an EHC plan. As part of the plan, he received twice weekly hydrotherapy while he was at school. In September 2020, Y moved from his school to a college. The hydrotherapy provision remained in his plan.
  3. In the same month, Ms X contacted Y’s social worker and SEN caseworker to ask about hydrotherapy for Y at college as she had not heard what arrangements were in place for this. The SEN caseworker said they would let Ms X know as soon as possible about arranging the sessions. Ms X chased the Council for a response.
  4. In early October the Council recorded Ms X’s concerns about its lack of communication as a complaint.
  5. In early November, Y’s new SEN caseworker contacted Ms X and said they were discussing Y’s hydrotherapy with health and social care teams. The caseworker said they were trying to find the health reports which recommended hydrotherapy. Ms X said the provision was written into Y’s EHC plan and queried why the reports were necessary. The caseworker said because Y had moved to post-16 provision it would no longer be considered an educational need because physical education was no longer compulsory. Ms X said she addressed this when Y’s plan was last amended. Ms X asked the Council to add the latest correspondence to her complaint.
  6. The Council held an annual review meeting later in November. The notes from the meeting indicate the Council proposed to move Y’s hydrotherapy provision to a different section of his plan, with responsibility passing to health professionals to fund and arrange the provision.
  7. The Council says it responded to Ms X’s complaint in late November though Ms X says she did not receive a response.
  8. Following the annual review, a health professional said they wanted to complete an assessment of Y for hydrotherapy. Records show the Council followed this up with health and the professional advice was provided in March 2021. The health professional said that while hydrotherapy did benefit Y in a small way, it was not essential.
  9. In April, pools reopened following the third national lockdown.
  10. In May, Ms X’s representative contacted the Council as Ms X had still had not been told how Y was going to access hydrotherapy. A health professional sent a report to the Council which said there was a “significant but manageable” risk associated with Y using a hydrotherapy pool due to difficulties regulating his temperature. The report said hydrotherapy was not essential to meet Y’s physical needs.
  11. The Council told Ms X’s representative it had taken Y’s case to its joint funding panel and the outcome was it would no longer fund hydrotherapy for Y. It said health colleagues had identified significant risks of Y receiving hydrotherapy due to the difficulties in regulating his temperature. Ms X says she was not told the case was going to panel. Her representative asked the Council when the panel took place, who attended and who identified the risks to Y. The Council responded providing an extract from the written record of the meeting and confirmed the date and attendees at the meeting.
  12. Ms X made a further complaint in May about the Council’s decision. She said as hydrotherapy remained in Y’s EHC plan, the Council had a duty to secure it. She said the Council had not followed the correct procedure to amend Y’s plan. The Council did not respond on time, so Ms X asked for her complaint to be investigated at the next stage of its complaint procedure.
  13. In June, the Council convened a professionals meeting to discuss the provision. Attendees agreed a new risk assessment was needed to say how any risks to Y would be managed, and this would be best carried out by a health professional. In the same month, the care provider supporting Y completed its own risk assessment for his hydrotherapy, at Ms X’s request.
  14. The Council responded to Ms X’s representative in June. It apologised for the delay in responding to her complaint. The Council said following the annual review, health services were asked to look at moving Y’s hydrotherapy provision into a different section of Y’s EHC plan and to seek updated advice to support this. The Council said there was a delay in securing the advice from health, so no amended draft plan had been issued. The Council accepted there had been delays in amending the plan. The Council proposed holding another review to ensure all information was up to date.
  15. The Council said ‘in theory’ the provision in Y’s plan was not being delivered but health services had raised concerns about the risks associated with Y accessing hydrotherapy. It said a professionals meeting had taken place and health services agreed to carry out a risk assessment to manage the risks to Y.
  16. An interim review meeting took place in July. Attendees discussed whether Y’s hydrotherapy was a health need, and whether it was safe for Y to continue to access this provision. The Council said it would continue to fund Y’s hydrotherapy as education provision until it was moved to another section of his EHC plan. The Council issued a draft amended plan the week after the review and met virtually with Ms X and her representative to discuss the amendments.
  17. The Council sent a further response to Ms X’s representative in September. It accepted the hydrotherapy had been stopped without a review taking place and it should have held an emergency review. It said concerns were raised by health professionals in December 2020 about the risk to Y from not attending hydrotherapy; the Council said it should have identified this sooner and acted more quickly once services started to reopen.
  18. The Council said a review took place in July as planned and the health professionals who attended agreed Y could restart hydrotherapy, which he did in September.
  19. The Council apologised for the delay in responding to Ms X’s complaint and offered her £100 to acknowledge the time and trouble she had taken to pursue her complaint. The Council said Y had missed out on approximately three months of hydrotherapy and apologised to Ms X and Y for this. It offered Y 28 sessions to make up for what he had missed, based on two sessions a week for 14 weeks, or a cash equivalent. Ms X accepted the Council’s offer.
  20. In response to my enquiries, the Council said it had not held a formal learning session from Ms X’s complaint, but it had had ongoing discussions with health and social care colleagues.
  21. Ms X says Y lost out on the benefits of hydrotherapy for approximately three months. She says it helps Y with his mental health and is the only place he can move independently and have control over his body. Ms X says Y was distressed by his lack of hydrotherapy. She also says the Council’s poor communication about the hydrotherapy caused both her and Y distress and frustration.

Analysis

  1. The Council accepts there was fault in how it decided to suspend Y’s access to hydrotherapy and there were delays putting the provision back in place. The Council’s offer to make up the lost sessions of hydrotherapy goes some way towards remedying the injustice to Y.
  2. However, I consider there was further injustice caused to Y in the form of distress at not being able to access the provision between April and July 2021, and frustration to Ms X in having to chase this up. I have made recommendations to address this below.
  3. I have seen evidence the Council drafted a response to Ms X’s first complaint in October 2020 which the Council says was sent in November 2020. I cannot say why Ms X did not receive this at the time.
  4. The Council delayed responding to Ms X’s complaints in 2021. The Council’s offer of £100 to acknowledge this is sufficient to remedy the injustice caused.
  5. There was a delay in the Council issuing a final amended plan following the annual review meeting in November 2020. However, I do not consider this caused a significant injustice to Y. This is because the delay was due to ongoing discussions about his hydrotherapy provision which was eventually reinstated.

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Agreed action

  1. Within one month of the final decision, to remedy the injustice caused, the Council will:
    • apologise to Ms X and Y for the injustice caused by the faults identified;
    • pay Y £250 to recognise the distress caused by the lack of hydrotherapy provision between April and July 2021;
    • pay Ms X £150 to recognise the frustration of having to pursue the Council to reinstate Y’s hydrotherapy provision;
    • consider Ms X’s request for a meeting to discuss their experience and write to her with its decision; and
    • remind members of the joint funding panel that changes to EHC plans can only be made through the review process set out in the SEND Code, including an opportunity for young people and their parents to comment on any proposed amendments.

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Final decision

  1. I have completed my investigation with a finding of fault for the reasons explained in this statement. Ms X and Y have been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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