The Ombudsman's final decision:
Summary: The Ombudsmen find a Council and CCG failed to work together properly to agree a young person’s Education Health and Care Plan. The young person missed out on support for an assessed health need over a prolonged period. Their parents were able to fund some private support, for which they have been partly reimbursed by the Council. The CCG has agreed to reimburse the outstanding amount. Further, the CCG has agreed to provide a financial remedy to acknowledge the uncertainty about the impact on the young person’s health.
- Mrs A’s complaint concerns the service she received from Redbridge Borough Council (the Council) and Redbridge Clinical Commissioning Group (the CCG) between August 2015 and May 2018. Her complaint relates to an Education, Health and Care Plan (a Plan) for her daughter, Miss B.
- Mrs A complains the Council failed to consult with the CCG properly. Mrs A said, as a result, the CCG did not provide the physiotherapy agreed in part G of the Plan between August 2015 and May 2018.
- Mrs A said she had to pay for private physiotherapy because of this. Further, Mrs A believes Miss B’s health has suffered.
- In bringing her complaint to the Ombudsmen Mrs A would like:
- an apology and a specific admission of fault,
- an explanation for why the failings occurred,
- service improvements, and
- financial compensation.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended).
How I considered this complaint
- I read the correspondence Mrs A sent to the Ombudsmen and spoke to her on the telephone. I wrote to the Council and CCG to explain what I intended to investigate and to ask for comments and copies of relevant records. I considered all the comments and records they provided.
- I shared a confidential copy of my draft decision with Mrs A, the Council and the CCG to explain my provisional findings. I invited their comments and considered those I received in response.
What I found
- Miss B has special educational needs because of several long-term health conditions. In August 2015 the Council signed a Plan for her. This named a conductive education school in the local area. The Plan included, in part G, individual treatment sessions from a physiotherapist, for one hour, three times a week.
- In September 2015 went into her final year at the conductive education school. Mrs A said this school provided physical therapy to Miss B as a normal course of business, rather than because of anything she had in part G of her Plan.
- No one arranged the physiotherapy set out in part G of the Plan. Mrs A did not arrange any private physiotherapy.
- In early 2016 Mrs A received an updated Plan which named a secondary school. Mrs A did not consider the school to be appropriate and appealed. In September 2016 the Council issued a revised Plan. This named an out‑of‑borough school. Part G of the revised Plan remained exactly as it had been in the August 2015 Plan.
- Miss B started to attend the out-of-borough secondary school in September 2016. This did not provide routine therapy as the conductive education primary school had.
- No one arranged the physiotherapy set out in part G of the Plan, although there was some discussion between the school, Council and CCG about it. In November 2016 Mrs A began paying for private physiotherapy sessions for Miss B.
- In late December 2016 Mrs A complained to the Council about the lack of physiotherapy as included in part G of Miss B’s Plan. She said Miss B had missed out on this for over 16 months.
- The Council replied in early January 2017. It accepted it had a duty to ensure the provision listed in a Plan was delivered. It said it had failed to do so for Miss B. The Council apologised. It said it could not go back and retrospectively provide the physiotherapy Miss B had missed out on. However, the Council said it would commission an independent physiotherapist to provide the therapy specified in part G of Miss B’s Plan. It said it would provide a personal budget to allow Mrs A to pay for this.
- The CCG wrote to Mrs A about her complaint in early March 2017. It said it only became aware of Miss B’s case after a Tribunal decision. It said it had not been involved in any previous communication or collaboration about the support Miss B needed. Therefore, the CCG said it had never been given an opportunity to review or agree the health provision listed in part G of Miss B’s Plan.
- Mrs A remained dissatisfied and attended meetings with staff from the Council (in April 2017) and CCG (in late May 2017). The CCG said it needed to assess Miss B’s health needs.
- In late July 2017 a private physiotherapist provided the Council with details of how many hours of physiotherapy she had provided to Miss B from November 2016 to date. In early August 2017 the Council authorised a payment to Mrs A to cover the total cost of over £3,000.
- The Council signed another amended Plan in September 2017. Part G continued to note the need for individual treatment sessions from a physiotherapist, three times a week.
- The CCG wrote to Mrs A in October 2017. It said needed to conduct its own clinical review of Miss B’s needs to reach its own determination of the correct treatment plan. The CCG said this should have taken place in early 2017 but Mrs A had not consented to it. The CCG said the need for this assessment had not changed. It said it remained willing to arrange it.
- Mrs A replied in December 2017 and explained her dissatisfaction with the CCG’s response. In particular, Mrs A disputed the CCG’s claim that it had tried to arrange a clinical review in early 2017. Mrs A said the Council wanted to send an NHS Physiotherapist to visit Miss B at school to assess her needs. She said this was to gather evidence for a Tribunal. Mrs A explained why she had not consented to this and said the Tribunal process upheld her choice. Mrs A said she had never been asked to give consent for an assessment of Miss B’s physiotherapy needs on behalf of the CCG.
- In January 2018 the CCG told Mrs A the Council would need to respond to her outstanding concerns. The Council wrote to Mrs A in February 2018. The Council said it hoped that by July 2017 ‘the matter would have resolved itself’ by the CCG completing its own investigation or by the Tribunal clarifying matters. The Council said it was not satisfied with the CCG’s response to her.
- In early March 2018 the Council wrote to the CCG. The Council noted Mrs A had concerns about the ongoing failure to provide the health provision listed in part G of the Plan issued in July 2017 following a further Tribunal. The Council said it felt its communication with the CCG on this latest Plan had been clear and that, as part of it, the CCG accepted the Tribunal reassessment as a means to resolve matters. Therefore, the Council said ‘in relation [Mrs A’s] complaint about provision, we currently share [her] concern and dissatisfaction with the CCG’s response’.
- The CCG replied to the Council at the end of April 2018 and wrote to Mrs A the next day.
- In terms of Miss B’s ongoing need for physiotherapy, the CCG said it had asked a physiotherapist for information about her needs. It said it had asked the physiotherapist who worked with Miss B at her school and privately. The CCG said the physiotherapist had recommended a package that would give Miss B three hours a week of physiotherapy, split between home and school. The CCG said it would commission the physiotherapist to provide this.
- The CCG emailed the physiotherapist in the middle of May 2018 and asked her to begin delivering the package of three hours a week.
- Mrs A remained dissatisfied. She emailed the CCG in early May 2018 and said it had not addressed the physiotherapy Miss B had missed out since August 2015. The CCG acknowledged this complaint toward the end of the month.
- Mrs A chased for a response during the following couple of months. The CCG wrote to her in the second half of August 2018. It said it could not answer Mrs A’s complaint because it did not have – and had not been able to obtain – information about Miss B’s Plans. Therefore, the CCG said it could not retrospectively detail what provision was offered and what therapy was delivered. The CCG asked Mrs A to supply what she believed to be the relevant information for this period.
- Mrs A sent copies of Miss B’s Plans to the CCG in September 2018, and again in November 2018. The CCG acknowledged them and said it would take the complaint forward.
- Councils and CCGs must have arrangements in place to plan and provide education, health and social care services for children and young people with special educational needs (Section 26 of the Children and Families Act 2014 and sections 1.23 and 3.3 of the Special Educational Needs and Disability Code of Practice (the Code)).
- They must agree how they will work together to achieve this (Sections 3.7 to 3.11 of the Code).
- Any health provision listed in part G of a Plan must be agreed by the CCG (Section 9.71 of the Code).
- CCGs then have a responsibility to arrange the health provision listed in this part of the Plan (Section 3.65 of the Code; and Page 21 of 0 to 25 SEND code of practice: a guide for health professionals).
August 2015 to November 2016
- The Council and CCG have both acknowledged the duties detailed above. The CCG noted that in 2015 the working arrangements for agreeing Plans were in a developmental stage. The Council also noted that, at this stage, actions to confirm and sign-off Plans with the CCG were not embedded as part of the set process.
- In terms of Miss B’s case, the Council accepted there is no evidence to show its officer sought advice from the CCG when they drafted a Plan in 2015. The CCG also said it has no evidence it agreed to the provision listed in Part G of this Plan. Therefore, there is no evidence to confirm the Council and CCG fulfilled their duties to work together to plan Miss B’s care. As I understand it, this happened due to inadequate procedures which, in turn, meant there was insufficient communication between the organisations. As a consequence no one arranged the physiotherapy detailed in Part G of Miss B’s Plan from August 2015.
- Regardless of the root cause, this failure to properly work together on Miss B’s Plan is fault. Due to the overriding duties on both organisations to make suitable arrangements, for the period up to November 2016, I consider both the Council and CCG hold some responsibility for the fault. I have not attempted to reach an arbitrary view on whether either organisation was more or less responsible. They are both at fault.
- In terms of the impact of this missed provision, the CCG noted that Miss B attended a school with enhanced physiotherapy provision. It said this addressed the requirements detailed in Part G of the Plan. However, the August 2015 Plan was written and agreed with this school named on it, in the knowledge of the type of support it could provide. There is no evidence to show the school was asked to provide the Part G provision, or evidence of enquiries about what would happen outside of term time. Therefore, notwithstanding the high level of care Miss B received at the school, she did not get the health care she had been assessed as needing in part G of her Plan.
- Mrs A did not pay for any private physiotherapy between August 2015 and November 2016. As such, there are no financial expenses to be reimbursed.
- When the Ombudsmen make recommendations to address an injustice caused by fault they aim to put the person back in the position they would have been had the fault not occurred. As such, financial recommendations are not based on what a service would have cost an organisation. Rather, remedies for financial loss should repay any unnecessary payments the person made, regardless of whether this is less or more than it would have cost the organisation. Therefore, I have not made a recommendation for the CCG to pay what it otherwise would have had to pay for Part G physiotherapy, were it not for the fault.
- However, the wider implications also need to be considered. Miss B was without the part G physiotherapy she had been assessed as needing for over 60 weeks before Mrs A began paying for private support. Mrs A estimates Miss B missed out on 207 hours of health-related (part G) physiotherapy during this time.
- Mrs A believes Miss B’s curvature of the spine was affected by the gap in provision. Further, she said the lack of physiotherapy had a detrimental impact on Miss B’s hamstrings. There are too many variables and unknowns for me to be able to take an informed view on this. I simply do not know how Miss B would be now if she had received three hours of part G physiotherapy each week from August 2015 to November 2016.
- However, given three hours of physiotherapy was documented as an assessed health need, Mrs A has a reasonable expectation that such support, for a total of over 200 hours, would have been beneficial to Miss B. This expectation leads to understandable uncertainty about whether Miss B’s health might have deteriorated unnecessarily. This uncertainty is an injustice in its own right. In addition, it is evident that this experience was avoidably stressful and frustrating for Mrs A. This is a further injustice. As with the fault, I consider both the Council and CCG hold equal responsibility for this injustice. However, I consider the Council has already accepted and addressed the impact of its fault. Specifically, it provided a tangible acknowledgement of this by paying for a significant amount of private provision. Therefore, the recommendation I made to address this (and further injustice during the later period) is directed solely at the CCG.
November 2016 to May 2018
- The CCG accepts that, after it learned of Miss B’s September 2016 Plan, it failed to deliver the physiotherapy described in Part G. Further, the CCG accepts its request to reassess Miss B’s physiotherapy needs was inappropriate. This is further fault, on the part of the CCG.
- Mrs A paid for private physiotherapy sessions from November 2016 to May 2018. In August 2017 the Council reimbursed Mrs A for the amount she had paid between November 2016 and July 2017. It accepted responsibility for this on the basis that it had not adequately communicated with the CCG in agreeing the updated Plan. Therefore, there is no outstanding financial injustice for the period from November 2016 to July 2017.
- However, Mrs A advised that she also spent £6,160 on private physiotherapy between the end of July 2017 and May 2018. This has not been reimbursed. This is a financial injustice which should be remedied. It should be remedied by the CCG due to its duty to provide Miss B’s part G support, which it new about by this time.
- As before, alongside the financial aspect, the wider implications of the lack of provision also need to be considered. Were it not for the fault Miss B would have received three hours of part G physiotherapy a week from the start of November 2016 to the middle of May 2018; a total of 80 weeks, or 240 hours of physiotherapy. During this period Mrs A paid for a total of 157 hours of physiotherapy (55 from the start of November 2016 to the end of July 2017; and, 102 hours from the end of July 2017 to the middle of May 2018). This leaves a difference of 83 hours.
- As with the earlier period, Mrs A has an understandable belief that the full number of hours would have been a greater benefit to Miss B than the number she was able to afford. This, in turn, leads to legitimate uncertainty about whether Miss B’s health may now be worse than it could have been because of the reduced number of hours. Again, this uncertainty is an injustice. Mrs A also suffered further avoidable frustration and stress as a result of the fault. I consider the CCG is responsible for this injustice, during the post-November 2016 period, and have made a recommendation to address it.
- The Council and CCG explained they have made improvements to their arrangements for considering and agreeing Plans. The CCG has a full time Designated Clinical Officer (DCO) and their role includes overseeing health input in the EHCP process and agreeing any health provisions. The DCO provides input to all EHCP Panels and has oversight of all Plans containing part G provision. I consider these changes will help to prevent recurrences of the faults that happened in Miss B’s case.
- Within one month of the date of the final decision the CCG should write to Mrs A and acknowledge it (alongside the Council) did not have adequate arrangements in place for agreeing Plans in August 2015. The CCG should also specifically acknowledge this meant they did not work together with the Council properly on Miss B’s Plan. The CCG should also acknowledge that, as a result of these failures, Miss B missed out on necessary, health-related support. The CCG should also apologise to Mrs A for the uncertainty she has been left with, and for her time and trouble in pursuing Miss B’s part G support.
- Within one month of the date of the final decision the CCG should write to Mrs A and acknowledge that it failed to put in place Miss B’s assessed health support after it learned of her Plan in September 2016. The CCG should acknowledge it inappropriately sought to reassess Miss B’s needs during this period. The CCG should also apologise for the uncertainty about Miss B’s health this loss of support contributed to.
- Within two months of the date of the final decision the CCG should reimburse Mrs A the £6,120 she spent on private physiotherapy.
- Within two months of the date of the final decision the CCG should make payments of:
- £1,000 to Miss B as a tangible acknowledgement of the uncertainty about whether her health has been adversely affected
- £500 to Mrs A to acknowledge the distress she has been caused over the uncertainty about the impact on Miss B’s health
- £250 to Mrs A to acknowledge her time and trouble in pursuing her legitimate concerns about missing health provision over a prolonged period.
- I have completed my investigation on the basis there was fault that led to an unremedied injustice. I have made recommendations to address this injustice.
Investigator’s decision on behalf of the Ombudsmen
Investigator's decision on behalf of the Ombudsman