Summary: Mrs X complained the Council did not ensure her child, Y, received provision set out in their Education, Health and Care Plan. She also complained it delayed in completing Y’s annual review and about poor complaint handling. The Council was at fault. The Council has agreed to apologise to Mrs X and Y for the identified faults and pay Mrs X £4000 to be used for Y’s educational benefit to remedy the impact of the lost provision. It will also pay her £500 to acknowledge the frustration caused and time and trouble taken to pursue her complaint and review its procedures.

The complaint

1. Mrs X complained the Council did not ensure her child, Y, received provision set out in their Education, Health and Care (EHC) Plan. She says the lack of provision is ongoing. She also complained it delayed in completing Y’s EHC Plan annual review and of poor complaints handling.
2. She says the lack of provision has significantly impacted on Y’s education and the delays have caused her frustration and unnecessary time and trouble. She wants the Council to arrange the provision set out in Y’s plan and to provide a financial remedy for lost provision and poor complaint handling.

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The Ombudsman’s role and powers

3. 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)
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)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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”.
8. 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 will share this decision with Ofsted.

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How I considered this complaint

9. I read Mrs X’s complaint and spoke with her about it on the phone.
10. I made enquiries of the Council and considered information it sent me. I also considered information provided by Mrs X.
11. I consulted the Local Government and Social Care Ombudsman’s Guidance on Remedies.
12. Mrs X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

13. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
14. After an EHC Plan is finalised, councils have a duty to ensure the special educational provision set out in the Plan is delivered. This duty is set out in the Children and Families Act 2014 and is non-delegable.
15. A council must review a child’s EHC Plan at least every 12 months. If the council considers it needs amending, it must send the child’s parents a copy of the existing plan and the proposed amendments. The parent must be given at least 15 days to comment on the proposed amendments. If the council decides to continue making the amendments, it must issue the amended EHC Plan as quickly as possible, and within 8 weeks of the original amendment notice.
16. If a person disagrees with the content of an EHC Plan or an amended EHC Plan, they have a right of appeal to the Special Educational Needs and Disability Tribunal (SEND).

Changes in legislation during the Covid-19 pandemic

17. During the initial Covid-19 outbreak, the Secretary of State for Education issued a notice which temporarily changed the absolute duties of councils to secure or arrange the provision set out in an EHC plan. The change required councils to use their ‘reasonable endeavours’ to secure the provision instead. The notice came into effect on 1 May 2020 and expired on 31 July 2020.

The Council’s complaints procedure

18. Councils must have complaints procedures to support the effective handling of complaints. Peterborough City Council’s policy has two stages.
• Stage One – investigation

The Council will acknowledge receipt of the complaint within 5 working days. The complaint will be investigated by the relevant service manager. The Council will provide a response within 20 working days. If the investigation will take longer, the manager should send the complainant a letter to advise them of the delay.

• Stage two – complaint review

If a person is unhappy with the stage one response, the Council may offer a complaint resolution meeting, if appropriate.

If a person remains unhappy after the meeting, they can request an internal review by a member of the Council’s Internal Audit Team, who will then provide a final response.

19. If a person remains unhappy after the stage two response, the Council will advise them they can contact the Local Government and Social Care Ombudsman.

What happened

20. Mrs X’s child, Y, has Special Educational Needs (SEN). In 2018, Y had an EHC Plan. The Council finalised an amended Plan in March, but Mrs X disagreed with the named school. She appealed to the SEND Tribunal asking for a different school, school A, to be named in the Plan.
21. Information about school A is in the Council’s local offer for children with Special Educational Needs and Disabilities. The information says the school has visiting Speech and Language Therapists, Occupational Therapists and counsellors. It says these are bought in by parents or the Local Authority.
22. Mrs X requested costing information from School A, which she then sent to the Council. The quote set out the yearly fees for Y to attend school A and said: “These costs are based on 2017-18 prices and do not include any other services [Y] may need in regards to outside therapists and any specialist equipment that may be specified in [their] EHCP”.
23. School A submitted a report to the Tribunal. The report said it could:

“meet [Y]’s needs and will provide the specialist support whilst being truly inclusive” and it would “supply any further information as to how it will specifically meet [Y]’s needs, if needed.”

24. In April 2018, an occupational therapist assessed Y. They found Y had significant needs. They recommended Y have an Occupational Therapy (OT) programme included in their EHC Plan. This report was also submitted to the Tribunal.
25. In May 2018, the Tribunal upheld Mrs X’s appeal. It ordered the Council to name school A in the Plan. It acknowledged Mrs X had not appealed the provision in the plan but based on the evidence and in agreement with all parties, ordered the Council to include an OT programme in Section F as part of Y’s specialist provision.
26. Following the Tribunal, Mrs X sent school A a copy of the OT report. She told school A she was aware it did not have this information when it provided the costings for Y’s placement earlier in the year.
27. The Council accepted the Tribunal ruling and issued a final EHC Plan. It named school A and included 24 hours of Occupational Therapist input per academic year to devise an OT programme for Y and provide training for staff to help deliver it.
28. There is no evidence the Council confirmed arrangements for the OT provision with school A at this time or agreed any revision to the annual placement costings to include the additional cost of school A arranging this provision.
29. Y started at school A in June 2018.
30. In September 2019, Mrs X met with SEN co-ordinator at school A. She said Y had not yet received any of the OT provision set out in their EHC Plan. Mrs X told us she was later advised this meeting was an EHC Plan annual review, but the Council has told us an annual review was not held until January 2020.
31. In November 2019, Mrs X wrote to the Council. She said since May 2018, Y had not received any of the OT provision specified in their EHC Plan. The Council did not respond.
32. Mrs X made a formal complaint. She said the Council had failed to ensure the OT provision for Y since May 2018. She also complained it had not responded to her earlier letter.
33. During November or December, the Council did not acknowledge or respond to Mrs X’s complaint. Mrs X contacted us, but we told her she needed to complete the Councils’ complaints procedure before we could look at her complaint. The Council has since told us that during this time, it was liaising with the NHS to decide which body should investigate the complaint.
34. In January 2020, the Council wrote to Mrs X. It acknowledged her complaint and said it had now registered it for a stage one investigation. It said it would provide its response by 12 March 2020.
35. Later that month Y’s school held an EHC Plan review meeting. It was agreed at the meeting the OT provision needed to be put in place.
36. In April 2020 Mrs X emailed the Council. She said she had not yet received a complaint response.
37. A week later, the Council provided its stage one response. It apologised for the delay in responding. It told Mrs X:
• Until her complaint, it had not been aware Y’s OT provision was not being delivered.
• Y’s school had confirmed it could meet the provision set out in the plan, and it was sorry to hear this was not the case.
• Ongoing delay was due to the Covid-19 pandemic. It said it would make arrangements for the OT provision to be delivered “once the situation related to Covid returns to normal”.
• It would be in touch with an update before the end of the summer term.
38. Mrs X was unhappy with this response and requested to escalate her complaint. The Council acknowledged her request but said it would not currently progress it due to the pandemic. It said it would be in touch again when things were back to normal.
39. In July, Mrs X contacted a specialist SEN charity for advice, and they wrote to the Council on Mrs X’s behalf. They told the Council if it did not put the provision in place, Mrs X would start legal proceedings.
40. Mrs X contacted us again to update us. We decided Mrs X had now waited long enough without a final response from the Council. We agreed to investigate her complaint.
41. The Council responded to the SEN charity’s letter. It said it had contacted Y’s school and an occupational therapist who worked at the school had assessed Y’s needs. The Council said it intended to employ this therapist to work with Y from September 2020.
42. In September, Mrs X contacted the Council to ask when the OT provision was going to start. She said Y’s school had told her the therapy service had not yet received funding for Y’s provision and until it did, the occupational therapist could not start working with Y.
43. The Council held an EHC Plan review meeting in October. It said it had now arranged the provision and the occupational therapist would see Y in school.
44. Mrs X told the Council Y needed a reassessment of their needs due to the time passed. Mrs X and the Council are continuing to correspond and work with the school to ensure Y’s EHC Plan and the occupational therapy provision is appropriate for their needs.
45. Mrs X told us the 18 months lost OT provision has had a significant impact on Y’s education and development.
46. An occupational therapist reviewed Y in December 2020. The report said due to the impact of the lost provision, Y required an increased level of OT input for the next five months, which would be reviewed after May half term 2021.
47. Mrs X says she has still not received a final response following her request in May 2020 to escalate her complaint to Stage two of the Council’s complaints procedure.

My investigation

48. In its response to our enquiries, the Council said:
• In May 2018, school A told it they could deliver the provision in Y’s plan.
• It only became aware Y was not receiving the provision when Mrs X complained in November 2019.
• It apologised for the delays in providing a complaint response and acknowledged it could have communicated better with Mrs X.
• It had discharged its duty to arrange the EHC Plan annual reviews to school A. It said it had tried to work with the school SEN co-ordinator to ensure these were held when due but had not made progress. It said the matter was now being looked at by its commissioning team.
• It considered Y had made good progress towards the outcomes in their EHC Plan, despite the lack of OT provision. However, it acknowledged Mrs X’s view that Y had increased fatigue linked to their SEN and made worse by the lack of OT programme.
• It had met with Mrs X to try and resolve the situation. The occupational therapy provision was now in place.
• It would provide a full apology to Mrs X and Y.

Analysis

Occupational Therapy provision

49. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
50. The Council says it had been unaware school A was not delivering the OT provision before Mrs X complained in November 2019. It said it had believed school A would deliver the OT provision as the report submitted to the Tribunal in April 2018 by the school said it could meet Y’s needs.
51. However, the evidence shows the Council should have been aware it needed to arrange the OT provision. This is shown by:
• The Council’s own Local Offer information, which states school A has visiting therapists but these are “bought in” by parents or the local authority.
• The placement costing information that Mrs X sent to the Council in February 2018. The quote from school A stated the figure did not include any other services Y might need in regard to outside therapists or specialist equipment specified in their EHC Plan.
• The OT programme was only added into Y’s EHC Plan following the Tribunal order in May 2018. The school’s Tribunal report was written before this and based on Y’s previous plan, which did not include OT provision.
52. On the balance of probabilities, the Council should have been aware it needed to arrange the OT provision. It should not have relied on school A’s Tribunal report as evidence the school would arrange it for the reasons listed above. The Council has provided no other evidence that school A told it after the Tribunal decision that the school would deliver the newly included OT provision.
53. The Council had a duty to ensure Y received the provision in their EHC Plan. Between May 2018 and April 2020, and September to October 2020, the Council had a duty to ensure Y received the provision in their EHC Plan under the Children and Families Act 2014. It did not do this, and this is fault.
54. Between May and July 2020, the Council was not required to maintain the precise provision in Y’s plan but was expected to make “reasonable endeavours” to do so. I have seen no evidence the Council made reasonable endeavours to arrange the OT provision during this time. This is fault.
55. Due to the disruption and restrictions during May to July we cannot know for certain what provision Y would have received. On balance, due to the nature of the missed provision, it is likely they could have received some OT input. Also, the Council had ample opportunity to put the provision in place from May 2018 and then further delayed following Mrs X’s complaint in November 2019, increasing the injustice to Y.
56. Y’s EHC Plan says Y faced daily challenges linked to their SEN and the OT report from April 2018 concluded Y had significant needs. Although the Council and Mrs X disagree about the level of impact, the OT review in December 2020 concluded the missed provision had led to Y needing an increased level of therapy input going forward. The missed provision impacted negatively on Y’s education and development causing them an injustice. However, Y did attend school A during this time where they received education and support from specialist teachers in an appropriate environment.

EHC Plan annual review

57. Y’s EHC Plan annual review was due in May 2019. School A did not arrange it and the Council said it had discharged its duty to arrange the reviews to the school. Although a Council can ask schools to arrange and lead annual reviews, the duty to ensure they take place remains with the Council. The Council did not ensure Y had a review of their EHC Plan within 12 months. This is fault.
58. Had the Council arranged a timely review, it would have realised earlier that Y was not receiving the OT provision in the EHC Plan and acted sooner to provide it. This could have reduced the injustice caused to Y by the lost provision.

Mrs X’s complaint

59. Mrs X complained in November 2019, but the Council did not acknowledge or register her complaint until two months later in January 2020. Council policy says it will acknowledge a complaint within 5 working days. It did not do this, nor did it contact her to explain the reason for the delay. This is fault.
60. The Council then told her it would respond by mid-March but did not provide a stage one response until the end of April 2020. It did not write to Mrs X to advise her of reasons for the delay. This further delay and lack of communication caused Mrs X frustration and distress.
61. The Council acknowledged her request to escalate her complaint to stage two of its procedure in May 2020. Mrs X says she has still not received a stage two response. Although some delay due to the Covid-19 pandemic would be understandable, the Council should have kept her informed on the progress of her complaint and provided a final response within an agreed timescale. It did not do this, and this is fault. The fault caused Mrs X further frustration and time and trouble chasing up her complaint. The lack of final response caused uncertainty about whether the Council had appropriately considered her concerns.

Agreed action

62. Within two months of the final decision the Council will:
• Write to Mrs X and Y to apologise for the identified faults.
• Pay Mrs X £4000 to be used for Y’s educational benefit. This is to recognise the impact of the lost OT provision from May 2018 to October 2020 on Y’s educational development.
• Pay Mrs X £500 for the frustration and distress caused by its poor complaint handling and the time and trouble it has taken her to pursue her complaint.
63. Within three months of the final decision the Council will:
• Review its EHC Plan annual review procedures to ensure annual reviews are completed within the statutory timescales.
• Review its complaint handling procedures to ensure complaints are registered and responded to in line with its policy and within appropriate timescales.

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Final decision

64. I have completed my investigation. I have found fault and the Council has agreed action to remedy the injustice caused to Mrs X and her child Y and improve its services.

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Investigator's decision on behalf of the Ombudsman