The Ombudsman's final decision:
Summary: Mrs X complains the Council did not provide occupational therapy sessions for her son as required by his Education, Health and Care plan. The Ombudsman finds there was significant disruption to the delivery of sessions in the 2017/18 academic year and Mrs X’s son did not receive his full entitlement. The Council was unaware of the problem until Mrs X complained and was then slow to resolve it. This caused an injustice to Mrs X and her son. The Ombudsman has recommended the Council apologise to Mrs X, ensure the missing sessions are now carried out and review how a similar situation can be avoided in future.
- Mrs X complains the Council did not provide occupational therapy sessions for her son as required by his Education, Health and Care plan, after he moved from primary to secondary school. She says this lasted throughout the 2017/18 academic year. Once she complained the Council eventually commissioned a private provider who previously did Y’s therapy, but gave her no assurances the arrangement would continue into the next academic year.
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)
- We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
- 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)
- 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)
How I considered this complaint
- I spoke with Mrs X and considered what she had to say. I then made enquiries to the Council and reviewed the material it sent in response.
- I have taken into account the government’s statutory guidance on Education, Health and Care plans, which is part of ‘Special educational needs and disability code of practice: 0 to 25 years’. This can be found online at https://www.gov.uk/government/publications/send-code-of-practice-0-to-25
- I shared my draft decision with Mrs X and the Council and I invited them to comment on it. Both parties responded.
What I found
- 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 EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND tribunal can do this.
- We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
- 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. The law is clear that, although a service can be provided by another organisation, the Council remains responsible for ensuring it is taking place.
- Mrs X’s son, who I will refer to as Y in this statement, became the subject of an EHC plan written by the Council in March 2017. Section F of the plan agreed the Council would provide occupational therapy (OT), “to promote the development of [Y’s] sensory, gross, fine motor, handwriting and organisational skills.” The plan provides for five ‘direct’ sessions working with Y per term, as well another two ‘indirect’ sessions per term to train school staff about his OT targets.
- Y moved to a new special school in September 2017 when he was old enough to go to secondary school. Mrs X says while he was at primary school his OT sessions were provided by a private company commissioned by the Council. However, when he moved to his new school the Council asked another body to provide the service through staff already based at the school.
- Y received no OT sessions at all in the autumn term at his new school. An observation visit took place at the end of November 2017, but that was only after Mrs X found out there had been none and complained to the Council. Mrs X had assumed they were taking place as planned and was surprised to find otherwise. The Council told her the other body would not routinely update parents about cancelled appointments in a school setting. The Council contacted the other body immediately after Mrs X complained and was told a staff availability issue meant ‘more complex cases’ were prioritised. However, it confirmed Y would be dealt with by a cover therapist instead. The Council says it monitored the issue from then on by having six-weekly meetings with the other body.
- Other than the observation visit, no further OT was provided to Y until February 2018. A new therapist carried out her first direct session with Y then but four later sessions that had been planned were cancelled because a member of staff was ill. The failure to provide OT to Y continued until, in April 2018, Mrs X contacted the private provider who had worked with him previously. The Council agreed to commission it to do the OT instead and asked it to provide OT for the summer term and to make up for the missed spring term sessions too.
- This agreement meant Y received 10 direct sessions and four indirect sessions from the private provider before the end of the 2017/18 academic year. This can be added to the one direct session and one indirect session he received from the other body in that time. This is, however, four direct sessions and one indirect session less than is set out in his EHC plan.
- The Council told the Ombudsman it is going to carry on its contract with the private provider for the 2018 autumn term, to ensure a proper handover can take place to a new therapist assigned to the school by the body it first commissioned.
- The Council told the Ombudsman the failure to provide OT sessions to Y was due to ‘staff sickness out of [its] control’. It says it should not be found at fault because another body was commissioned to provide the OT sessions and did not do so.
- I do not agree with the Council’s view. The law makes it responsible for ensuring the special education elements of the ECH plan are carried out as agreed. I accept it was not responsible for a specific incident of staff sickness, but the failure to correctly oversee the service being provided by the other body, and the failure to urgently resolve the issue once it was identified, were both fault.
- Y essentially fell between the gaps in this case and I am not convinced the Council would have noticed unless Mrs X had eventually become aware and complained to it. Although the Council urgently asked the other body to explain what was happening, and put in place a plan to resolve it, it does not appear to have been able to positively influence any change through its six-weekly monitoring. This means Mrs X had to remain heavily involved, including having to speak with the private provider herself late in the spring term before the Council agreed to use it again.
- The Council correctly agreed to pay the private provider to make up the OT sessions Y had missed in the spring term. However, I have not seen any evidence of a similar arrangement for the missed sessions in the autumn term. There may not have been enough weeks to do so in the summer term but nothing I have seen suggests it was considered at all. It is further fault by the Council that, despite being entitled to 15 direct and six indirect OT sessions in the 2017/18 academic year, Y received less.
- I asked Mrs X about the effect the missed OT sessions had on Y. She told me he was left uncomfortable and ‘physically stressed’. She suspects his concentration was affected too. It therefore seems to me part of the injustice caused by the fault was a degree of harm and distress caused to Y. I cannot easily quantify this harm but I am satisfied, on the balance of probabilities, the failure to provide any OT sessions at all in the autumn term would have had a negative effect on him. Otherwise, the ECH plan would not be structured as it is.
- I also recognise Mrs X was put to the time and trouble of having to complain to the Council, and check the service provision for some time afterwards, and consider that to be a further injustice.
- When I spoke to Mrs X she asked me whether it could be arranged for the private provider to do Y’s OT sessions throughout his time at secondary school. That is not something the Ombudsman can recommend and the plan currently being followed by the Council to handover the service is one it is entitled to follow.
- The Council’s responses in this case led me to believe other children may have been affected by the same issue which impacted on Y. The Ombudsman has the power to consider this broader impact, even when those affected have not complained to us. Where such cases are identified, it is right the Council provides a similar remedy for them. I will therefore recommend how the Council can consider those others potentially affected below.
- By 25 October 2018, the Council has agreed to:
- write to Mrs X and apologise for failing to provide Y with the OT sessions he was entitled to in the 2017/18 academic year and for her time and trouble in having to pursue her complaint.
- arrange how it will make up the OT sessions that did not take place in the 2017 autumn term. This should happen before the end of the current term unless there are medical reasons why it should not.
- carry out a senior management review to find out why it was not fully aware the other body was not providing Y with OT sessions. It should then write to the Ombudsman to explain how it will avoid similar cases in future with more effective monitoring.
- carry out a further review to check whether any other pupils at Y’s school missed OT sessions they were entitled to in their ECH plan in the 2017/18 year because of the staff sickness issue. It should then write to the Ombudsman to explain how many cases it identified and how it will remedy each one.
- There was significant disruption to the delivery of sessions in the 2017/18 academic year and Mrs X’s son did not receive his full entitlement. The Council was unaware of any problem until Mrs X complained and was slow to resolve it. This caused an injustice to Mrs X and her son.
Investigator's decision on behalf of the Ombudsman