Summary: The Ombudsman has already decided that the Council should have held an annual review of the complainant’s Education, Health and Care Plan in October 2018. This complaint considers the complainant’s concern that, because of this failure, he has lost out on his academic choices and on the required special educational needs provision specified in his Education, Health and Care Plan. We uphold some aspects of the complaint. The Council has agreed the recommended remedy and therefore we are closing the complaint.

The complaint

1. The complainant, who I refer to as Mr X, complained that:
1. because of the Council’s failure to hold an annual review of his Education, Health and Care (EHC) Plan in October 2018, he did not have an opportunity to resolve certain issues and disputes at this stage and he lost the opportunity to make an informed decision about his General Certificate Secondary Examinations (GCSEs) options;
2. that the Council failed to meet his special educational needs (SEN) when he was placed at one of the Council’s medical hubs (resource B) which provides alternative education to children unable to attend school because of illness. Mr X says that, if there had been an annual review in 2018, he could have raised his concern about the lack of SEN provision at this point.
2. We have already found the Council at fault (Ombudsman’s investigation reference 19 008 752) for not holding an annual review in 2018. We discontinued that investigation to await the outcome of Mr X’s August 2020 Tribunal hearing.

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What I have investigated

3. I am investigating the Council’s actions between October 2018, when the Council should have arranged an annual review, to March 2020, when Covid 19 lockdown started. I am looking at the possible injustice caused to Mr X by not having the annual review in October 2018.
4. Matters, which I have not investigated, are set out in the last paragraph of this amended draft statement.

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The Ombudsman’s role and powers

5. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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))
6. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
7. The SEND Tribunal deals with disputes about assessments and provision for special educational needs. The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin) that the Ombudsman cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal.
8. We can look at complaints about a council’s failure to provide the support set out in the EHC Plan, or where there have been delays in the process.
9. 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)
10. The Ombudsman’s final statement will be sent to the Office for Standards in Education, Children Services and Skills (Ofsted) in accordance with the arrangement the Ombudsman has to share findings with this organisation.

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How I considered this complaint

11. I have obtained written information from the Council and from Mr X. I have also spoken to him on the telephone and to his representative. There is a considerable amount of information concerning this complaint. I have concentrated on the salient issues.
12. Mr X and the Council commented on my first draft decision statement. As a result of these comments, revised the recommended remedy and issued an amended draft decision statement. I have taken into account the Council and the complainant’s further comments when reaching my final decision.

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What I found

13. A child with special educational needs may have an Education, Health and Care Plan (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. Section F sets out the specified special educational provision required.
14. Where a council maintains an EHC Plan for a child or young person it must secure the specified special educational provision for the child or young person. (Section 42 (1 & 2) of the Children and Families Act 2014)
15. Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Special Educational Needs and Disability Code of Practice January 2015 (the Code) says reviews must be undertaken in partnership with the child and their parent.
16. EHC Plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets in the Plan remain appropriate. The first review must be held within 12 months of the date when the EHC Plan was issued and then within 12 months of any previous review.
17. Parents and young people can request a local authority provide a personal budget for special educational provision in an EHC plan and request direct payments. The request must be made when the draft EHC plan is being prepared, reviewed or re-assessed. (The Special Educational Needs (Personal Budget) Regulations 2014 Section 4(1))
18. A personal budget is an amount of money identified by the Council to deliver provision set out in the EHC Plan. Councils are under a duty to prepare a budget when requested.

Alternative education for those unable to attend school for medical reasons

19. Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless arrangements are made for them”.
20. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
21. The education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

Background events

22. The Council converted Mr X’s Statement of special educational needs (SEN) to an EHC Plan at the end of December 2017. The Occupational Therapist’s (OT’s) report of June 2016 referred to Mr X as being diagnosed with Autistic Spectrum Condition (ASC) and functional behaviour delays.
23. The OT also noted Mr X has hypermobile joints (very flexible joints which causes pain), and sensory difficulties in his visual perception and auditory abilities with difficulties also in manual dexterity. The OT noted that Mr X required time to understand and process requests and in filtering out background noise. His parents noted that he had restricted patterns of behaviour and lacked a sense of danger.
24. The December 2017 EHC Plan stated the first annual review would be 1 October 2018. At this stage, Mr X was at a mainstream secondary school, School Y.
25. Because of a serious assault on Mr X at School Y, where he suffered significant injuries, he started at the Council’s medical education hub, resource B, in May 2018. Mr X had felt unable to return to School Y and was suffering from anxiety and post traumatic stress disorder (PSTD). Resource B offer pupils alternatvive education for those unable to attend their mainstream school for medical reasons.
26. When at resource B, Mr X was dual registered with School Y. The Council’s plan was for Mr X to be at resource B on a temporary basis. However, he settled well and did not want to return to School Y. His parents supported this.
27. In early 2018, Mr X appealed the final EHC Plan of December 2017. There was a hearing in March 2018, which Mr X’s parents say the Council’s representatives did not attend. The Tribunal ordered the Council to carry out an up to date OT assessment.

The OT report of June 2018

28. The OT report of June 2018 was very detailed. It identified that Mr X’s motor integration skills were below average which led to, among other things, sloppy writing, poor organisation and poor posture. In relation to his fine motor skills, the OT stated:

“[Mr X] scored in the severe challenge range, scoring 1st percentile on the fine motor skills section. While [Mr X] can do the tasks, they take him a long time, and are effortful. This is directly related in parts to his reduced visual-motor integration skills, poor postural stability, reduced shoulder stability, hypermobility as well as poor manual dexterity skills”.

29. The report highlighted Mr X’s sensory difficulties and noted that he had ‘below average executive function’. The OT made recommendations for direct and indirect OT. Indirect OT normally means special educational services which include progress reviews, cooperative planning, consultation and modification of environment, curriculum, materials or equipment.

The SEND Tribunal hearing of October 2018

30. The final SEND appeal hearing was heard in October 2018. Mr X agreed, at the hearing, that he would return to School Y because this was a better option for him than being sent to another school, which the Council had recommended. At this time, the Council and the Tribunal’s view was that resource B could not be named in Mr X’s EHC Plan as his school placement. Previously, Mr X had wanted to attend another school but that school could not provide the OT.
31. In November 2018, School Y suggested an emergency review because it was aware that it could not meet the provision set out in Mr X’s EHC Plan. Mr X’s parents were also concerned. They supported the request for an emergency review.
32. The Council did not agree and said that the next annual review would be one year after the Tribunal hearing of October 2018. The Council was at fault because annual reviews should take place within 12 months of the EHC Plan being issued.
33. Mr X remained at resource B. The Council says that, after the Tribunal decision of October 2018, it was working towards Mr X returning to School Y.
34. Mr X’s parents appealed to the SEND Upper Tribunal about the decision that he should return to School Y. The Council subsequently agreed for Mr X to remain at resource B at least until the next annual review in October 2019.
35. There was a lot of correspondence between the Council, resource B and Mr X’s parents throughout 2019. I will refer to this in more detail later in this statement.
36. In October 2019, there was an annual review. Mr X’s parents had arranged an assessment of him which confirmed the view that Mr X’s PTSD, caused by the previous incident at School Y, and other difficulties, were getting worse without proper SEN support.
37. The Council subsequently agreed to pay for this assessment.
38. The Council issued an amended EHC Plan in December 2019. Mr X appealed the EHC Plan to the SEND Tribunal. The final hearing appeal hearing was delayed to August 2020 because of the Covid 19 lockdown.

Complaint (a):

Because of the Council’s failure to hold an annual review of his Education, Health and Care (EHC) Plan in 2018, he [Mr X] did not have an opportunity to resolve certain issues and disputes at this stage and he lost the opportunity to make an informed decision about his General Certificate Secondary Examinations (GCSEs) options;

39. The Council says that, when Mr X joined resource B in May 2018, resource B did not offer extended GCSE options as it was seen as interim education with the aim of reintegrating pupils back to their school. Mr X’s parents say that School Y was not involved at this stage and was unaware of the forthcoming October 2018 SEND appeal.
40. Mr X started Year 10 in September 2018, at resource B, undertaking four General Certificate Secondary Education (GCSEs). Mr X wanted to remain at resource B for the completion of Years 10 and 11 so he could complete his GCSEs. Again, his parents supported this.
41. After the October 2018 Tribunal, the Council says it worked on the basis that Mr X would use the school’s online platform for his GCSEs.
42. On 5 November 2018, there was a meeting with Mr X’s parents, SEN Council officers, and the Assistant Head from School Y. School Y wanted it noted that it had not been consulted prior to the October 2018 Tribunal decision. School Y said that it was not able to provide all the SEN provision from Mr X’s EHC Plan, for example the room used for OT had been converted to a classroom.
43. Mr X’s parents told the meeting they intended to appeal to the Upper Tribunal on a point of law and because, on reflection, they did not agree with Mr X returning to School Y. Subsequently, Mr X’s parents did appeal on a point of law.
44. At this meeting Mr X’s GCSE options were discussed but this could not be finalised because it was recorded in the minutes that “a resolution was required about Mr X’s school placement”.
45. The Council says that it offered further meetings to discuss Mr X’s GCSEs options, but Mr X’s parents were unwilling to have such a meeting as they considered there should be an annual review instead. The Council considers that the suggested meetings could have resolved the GCSE concerns better and sooner than an annual review.
46. Mr X’s parents disagree, saying that an annual review would have been a better forum to resolve these issues. They also wanted to raise their concerns about the lack of social and health care in Mr X’s EHC Plan. They were seeking an annual review so that the Council could issue an amended final EHC Plan, so they could raise their concerns about all aspects of the EHC Plan by a further appeal to the SEND Tribunal.
47. This was because the pilot scheme, whereby the Tribunal could make recommendations in respect of social and health care, had begun. This was not an option at the October 2018 Tribunal hearing.
48. In December 2018, the Council wrote to School Y, asking what provision and which GCSEs would be offered to Mr X, now that the Tribunal had decided that Mr X should return to School Y.

2019

49. The Council says that Mr X’s parents expressed satisfaction with the GCSE options in February 2019. Mr X’s parents say that they were satisfied with the quality of teaching at resource B, and they were also grateful that Mr X was still at resource B and had not been forced to return to School Y.
50. In March 2019, Mr X’s parents asked for Mr X to undertake History GCSE. The Council emailed School Y about this. Resource B stated that it was not receiving work from School Y for Mr X. The Council says that it planned a meeting with School Y and resource B, but Mrs X’s parents could not attend. They say they were not asked if the date was convenient before arrangements were made. It was not.
51. The Council says subsequently an arrangement with School Y was made to provide History GCSE. But Mr X did not take up the offer.
52. Mr X’s parents also asked for Mr X to undertake an Art GCSE as this was required for him to gain a place at his next preferred post 16 College. Mr X’s parents say that they first raised this request with resource B and then pursued this with the Council in November/December 2018. The Council says that it was first aware of the request for Art tuition in February 2019. The Council provided an Art tutor as from April 2019, with whom Mr X got on well. It is accepted that there was some delay in arranging this tuition.
53. In May 2019, there was a meeting at School Y. The minutes of the meeting record that resource B normally only offered education for eight weeks and it was noted that it was not a SEN provider. The minutes recorded that the ‘dual roll’ required ‘consultation with School Y’.
54. At the May 2019 meeting, the Council says that it was agreed the Council would supplement the GCSE options if resource B could not provide them and would ‘fill in the gaps’ in respect of SEN provision.
55. In September 2019, the Council says that Mr X asked to undertake a Music GCSE, having previously asked for Geography. The Council says it explained to Mr X that it would be unrealistic to expect that he could cover a two year syllabus in one year. (Mr X was due to end the placement at resource B in July 2020). Mr X cannot recall being told this. He also says that he started learning the guitar and keyboard
56. Mr X’s parents say that he asked for an online learning course in addition to the music tuition, but this was not agreed.
57. At the annual review in October 2019, Mr X’s parents say that they had learnt from a SEND Tribunal in relation to Mr X’s sister that resource B could be named as a placement in Mr X’s EHC Plan. This is because it is classified as a pupil referral unit (PRU). They also say that they learnt from their daughter’s Tribunal that, if resource B could not provide the required SEN, then the Council had to do so. They therefore pursued requests for this to happen.
58. It was agreed at this annual review that the SEN provision of a social group for Mr X would be sourced by the Council and that there would be training for staff at resource B in relation to ASC and social interaction skills. It was noted that Mr X’s progress was impaired by his lack of social skills. Mr X’s parents say that social skills training had always been in Mr X’s EHC Plans because it was recognised that his lack of skills in this area impaired his learning. They say that it has not been provided. The Council says that funding was provided to resource B for laptops and art material and training given to staff for social skills training. Mr X’s parents dispute this.
59. At the end of November 2019, resource B had to close. The Council offered Mr X a place at another medical hub, resource C. But the Council says that Mr X was unwilling to attend even though he was willing to attend resource C for his Music tuition. Mr X says that he had a good relationship with his Music teacher and therefore he felt able to attend for these sessions. But he was anxious about attending a new resource for his other lessons because there were more pupils there and that increased his anxiety.
60. Mr X’s parents requested home tuition, and the Council devised a home tuition programme of 21 hours per week. However, the Council says that Mr X’s parents subsequently were unwilling for this to be at the family home. They had wanted it to take place in a Council office, which the Council says that they had previously refused when the Council offered tuition there for Mr X’s sister.
61. Mr X’s parents say that it was Mr X who refused to have tuition at home because he had had this in 2017 and had not enjoyed it; that he needed to make a clear distinction between school and home. Mr X’s parents say that the Council was unwilling to offer tuition other than at home, for example at the local library, as suggested by Mr X. They say that CAMHS supported this suggestion. They say that Mr X and his sister are different personalities and Mr X could have coped with tuition at a Council office, or at the library, whereas his sister could not.
62. The Council explains that the tutors found lived close to the family home and also there was no space available at the local library. Mr X’s parents say that both the Art and Music teacher were willing to teach Mr X in the library.
63. The Council says that Mr X’s parents sent numerous emails and therefore it decided to devise a communication protocol naming particular officers with whom they could communicate.
64. In December 2019, there was a meeting between the parents, staff at resource B and SEN officers.

2020

65. In January 2020, there was an early review of Mr X’s EHC Plan. The parents say that this was not an early review as it did not follow due process. But it was agreed that Mr X would attend resource C. Mr X returned to resource C, the parents say on a part time basis.
66. In February 2020, Mr X’s parents withdrew Mr X from resource C because of an incident with another pupil. Mr X’s parents say that Mr X was threatened and, in view of his previous incident at School Y, he became very anxious. Mr X’s parents felt that there was no other choice but to withdraw Mr X to protect his mental health.
67. The Council considers that it made many efforts to provide an education for Mr X during January to March 2020. But Mr X and his parents were uncooperative.
68. On 23 March 2020, there was the Covid 19 lockdown and events from this date are part of a second complaint to be considered by the Ombudsman.
69. Mr X, like other pupils, did not sit his GCSEs exams due to Covid 19, and he was subject to teacher assessments. He obtained the necessary GCSEs, at the right level, to obtain a place at his present College to pursue an Arts and Graphic Design course. However, Mr X says that he wishes he could have pursued a Music course. He has continued with his music tuition privately and he is considering asking to change courses at College.
70. The Council says that the curriculum at resource B has now been broadened, as from September 2019. Mr X took English Language, English Literature, Double Science, Statistics, Citizenship, Art and Music GCSE.

Mr X’s comments

71. Mr X says that he did music at previous schools and that, if there had been the annual review in 2018, there would have been a proper discussion about his GCSE options, and he would have requested Music as an option. This would have meant he could have pursued a two year course rather studying music just for one year. Mr X says that playing the keyboard has helped his manual dexterity. He plays by ear.
72. Mr X says that back in 2018, he had wanted to go to another school, an independent school for Creative Arts, School Z. But he could not because the school could not meet his OT needs. However, the inability to attend School Z is outside the time period of my investigation.

The Council’s further comments

73. The Council does not consider Mr X has lost the opportunity to study Music GCSE over a two year period. It says that Mr X did not request this until September 2019 and that previously he had asked for History and then Geography. When Music was asked for, the Council says that this was arranged promptly.

Analysis-Findings on complaint (a)

74. During the period of October 2018 to October 2019, the Council’s policy was that resource B provided temporary education with the aim of the pupil returning to their original school. Pupils were deliberately dual registered to support this purpose. This meant that resource B relied on the support of the registered school to be able to provide the full range of academic subjects to those in their GCSE years.
75. In addition, the Council’s view was that resource B could not be named on Mr X’s EHC Plan as his school placement (Section I), a view which was supported by the SEND Tribunal in October 2018, until Mr X’s sister’s October 2019 SEND Tribunal. Hence the 2018 Tribunal decision to return Mr X to School Y.
76. The uncertainty about Mr X’s school placement was a significant point of disagreement between Mr X’s parents and the Council. It also created uncertainty for Mr X, resource B and School Y. This led to numerous meetings, discussions and emails between the parties involved.
77. Annual reviews are formal meetings which require written information to be provided by the school, where the pupil is registered, prior to the meeting, and other information from health and social care, where relevant. Pupils and parents should be involved, and it is an opportunity to look at the pupil’s progress towards agreed outcomes in the EHC Plan and consider what further support might be required.
78. In November 2018, School Y raised concerns about the situation, and it asked for an emergency review. It seems that it was clear at this point that the co-working required between School Y and resource B, given Mr X’s dual registration, was not working in practice. It was also noted at the meeting of May 2019 that there needed to be consultation with School Y.
79. Had there been the annual review in October 2018, this would have provided a formal forum, very importantly involving School Y, to discuss Mr X’s EHC Plan and discuss his GCSE options. It would also have provided an opportunity for Mr X and his parents, and for resource B and School Y, to raise concerns and potentially resolve issues about how the dual registration should work in practice. It is also likely that Mr X’s parents would have asked for amendments to the EHC Plan, because of their concerns about Mr X’s GCSE options and that SEN provision was not being available.
80. Mr X’s parents could have appealed an amended final EHC Plan, after this 2018 review, and this might have brought forward some clarity sooner about the appropriate school placement for Mr X and whether resource B could be named in his EHC Plan. Removing the uncertainty about these issues might have been beneficial for all.
81. An annual review in 2018 would also have provided a more structured meeting to discuss Mr X’s GCSE options whereby School Y and resource B could have stated, at this stage, what they could and could not provide. Instead, discussion about GCSE options (and SEN provision) continued throughout 2019 in a piecemeal way.
82. So, my view is that, by failing to hold an annual review in October 2018, meant that there was a lost opportunity to look closely at how the dual registration of Mr X at School Y and resource B was working in practice and what could have been done to improve this.
83. However, the Council considers that there has been no injustice to Mr X by not having an annual review in October 2018 in respect of his GCSE choices, in particular his subsequent decision, a year later, to undertake Music GCSE. On the other hand, Mr X considers that, if he had had this opportunity, and was aware that he could do a two year Music GCSE, he would have chosen this GCSE in 2018, and also then to study this at College.
84. My view remains that a detailed discussion at an annual review about Mr X’s GCSE options, and exploring his interests, might have given him the opportunity to be clearer at the beginning of the two year GCSE courses, rather than changing his mind part way through. That lost opportunity, in itself, has caused an injustice.
85. But it is speculative to say what might have been different for Mr X, although I recognise that he will be left wondering whether things could have been better.
86. I am also mindful that Mr X gained the required GCSEs to obtain a place at his preferred College and, therefore, whatever the faults, he has not been prevented from pursuing further studies.
87. However, I consider that the Council could have agreed to supplement the Music GCSE option by an online course, and I cannot see a reason why it did not. Mr X made it known his interest in Music and he found that he had a talent for it, by being able to play by ear.
88. So, I consider the Council has been at fault for not supplementing Mr X’s GCSE Music option (given he only had a year to complete a two year course) and this would have caused an additional injustice.

Complaint (b)

that the Council failed to meet Mr X’s special educational needs (SEN) when he was placed at one of the Council’s medical hubs (resource B) which provides education to children unable to attend school because of illness. Mr X says that, if there had been an annual review in 2018, he could have also raised his concern about the lack of SEN provision at this point.

Mr X’s EHC Plan of December 2017

89. In Section F of the December 2017 EHC Plan, SEN provision was as follows: 3x 30 minutes language help; 30 minutes sessions with a keyworker; Circle of Friends, 30 minutes weekly writing aids; 40 minutes weekly social skills for teenagers; 20 minutes weekly social skills group with peers; 45 minutes direct OT and 15 minutes planning weekly and implementation of the OT programme daily.
90. At this stage, Mr X was at a mainstream secondary school, School Y.

Mr X’s amended final EHC Plan November 2018 issued after the Tribunal hearing of October 2018

91. In June 2018, an OT reassessed Mr X. The OT identified the following main issues:

• decreased core strength and stability;
• difficulties with planning, attention, handwriting, and processing of complex instructions;
• poor frustration levels and anxiety in social situations.

92. Section F of Mr X’s October 2018 EHC Plan broadly stated the following;

• fortnightly programme to support motor skills;
• daily sensory diet to improve focus and attention (sensory diet involves a range of activities to help a pupil cope with sensory difficulties);
• social skills teaching in a group setting;
• direct OT sessions, in total 47 hours per year.

Complaint (b)-specific failure to provide SEN provision set out in Mr X’s EHC Plans

No specific language tasks 3x30 minutes per week

93. Mr X’s parents were not sure what this was meant to entail. But they said that Mr X did not receive any individual specific help with ‘language’ tasks when at resource B.
94. Mr X’s EHC Plan of December 2017 stated at Section F that he required specific language tasks 3x30 minutes per week and this was to be provided by School Y. In May 2018, Mr X started at resource B and there is no evidence that this was provided between May and November 2018. So, that is fault. But, as I am only considering events from October 2018 (when the annual review should have been held), this fault covers the period of October to November 2018.
95. In November 2018, this provision was removed from Mr X’s EHC Plan, so between November 2018 and 4 December 2019, there is no fault.
96. This provision was reinstated in Mr X’s December 2019 EHC Plan. The Council says it tried to have meetings with Mr X’s parents, but these were refused. It is also clear that, after the October 2019 Tribunal said that resource B could be named in Mr X’s EHC Plan, the Council and resource B looked at how it could provide the specific special educational provision. In addition, guidance was provided to staff at resource B about communication for its pupils.
97. But I cannot see anything in the documents about the provision of 30 minutes of specific language tasks. On that basis, it appears that this was not provided in accordance with Mr X’s 2019 EHC Plan between November 2019 to March 2020, when Covid 19 started. This amounts to fault.

Social skills teaching group did not involve others

98. Mr X’s parents say that Mr X had three sessions with his sister. But, because of his poor social interaction skills, it was specified that this should be with others.
99. The Council says that, around October 2019, resource B sessions were designed for pupils with the training of staff being sourced from the Specialist Teaching and Learning Service. The Council says that sessions were offered but, because Mr X was not at resource B to attend, he could not participate. Mr X’s parents say that this is because he had to come home for his physical education (PE) and for his OT.
100. It appears that there was no social skills training with others between October 2018 and October 2019. That is fault. After this date, this remained an issue, with Mr X’s parents saying that staff were not trained in this area, as claimed by the Council, with the Council saying it provided guidance to staff at resource B about how to provide social skills teaching to pupils.
101. I find it hard to reach a decision on this aspect of the complaint. But, on the balance of probability, given Mr X was coming for his PE, it may be he missed these sessions.

No Cognitive Behaviour Therapy (CBT)

102. In March 2019, it was recommended that Mr X received CBT for his post traumatic stress disorder (PTSD) triggered by the assault at School Y at a cost of approximately £200 per hour. Mr X’s parents say that they asked for a personal budget to provide this.
103. The Council says that there is no record of this request and, at the meeting of May 2019, the minutes of this meeting recorded that the Educational Psychologist said Mr X required 20 sessions of CBT and that parents would fund rather than the Child and Adolescent Mental Health Services (CAMHS). By this, I think, it meant that Mr X’s parents would find a therapist rather than fund the cost of it.
104. At the annual review in October 2019, when Mr X’s parents were entitled to ask for a personal budget, the Council says that they did not do so. It was agreed that the mental health nurse at resource B would support or suggest eight sessions of CBT, or if not successful, then twelve sessions of Eye Movement Desensitisation Reprogramming (EMDR) support therapy.
105. Mr X’s parents say that they did not request a personal budget at the October 2019 annual review because the Council was saying that it would arrange the CBT and it could be provided at resource B. Therefore, they thought that a personal budget was not required at this stage.
106. The Council wrote to Mr X’s parents saying that it would approach a counselling service, but it had understood that they wished to find their own therapist. In December 2019, in relation to a previous complaint, the Council confirmed with the Ombudsman that Mr X’s parents were looking for the therapist.
107. Personal budgets can only be requested at annul reviews (or during an EHC Plan assessment). I can see that Mr X’s parents thought that the mental health nurse would support or suggest eight sessions of CBT, or if not possible, EMDR sessions. CBT was first recommended in March 2019. At the October 2019 annual review, the plan was that resource B’s mental health nurse might arrange this but subsequently it was agreed that Mr X’s parents would find a therapist.
108. It is not clear why there was this change of plan, but it seems Mr X’s parents thought, after the 2019 annual review, they should find a therapist, otherwise they thought that CBT would not be provided.
109. In January 2020, Mr X decided that he had no choice but to request that CBT was removed from his EHC Plan, as he felt that it would make him look different in his Post 16 placement. However, the August 2020 SEND Tribunal decided that CBT should remain in Mr X’s current EHC Plan, so it would be possible for this to be provided some time in the future, if required.
110. There is evidence that the Council agreed to provide the CBT, but it did not do so. That is fault. The plan changed, and the Council thought Mr X’s parents wanted to find the therapist themselves. However, the Council was at fault in initially agreeing to provide CBT but then not doing so.

No movement breaks

111. The OT reports highlighted Mr X’s mobility problems which may not have been obvious on observation. But I can see that movement breaks were important for Mr X’s condition to ensure that his joints were not painful.
112. Mr X’s parents say that Mr X appeared not to have had these ‘breaks’ because he would return home, after being at resource B, with his neck and back aching. It seems though that these movement breaks were provided after the annual review of October 2019, when staff at resource B had guidance and training.
113. However, before this time, between October 2018 and October 2019, I am not satisfied that there is enough evidence to say these breaks were provided and that amounts to fault.

No delivery or personal budget of indirect OT therapy which included a fortnightly programme with activities to improve underlying motor skills and handwriting and fine motor skills;

114. The OT report of June 2018 referred to indirect OT therapy. But this was not referred to in Mr X’s EHC Plan of 2017 or 2018.
115. The 2017 EHC Plan referred to the implementation of an ‘OT therapy programme’ on a daily basis’. The 2018 EHC Plan referred to fortnightly sessions to improve handwriting and motor skills and also talked of a ‘sensory diet’.
116. On balance of probability, it is likely that the OT support programme was not provided between October 2018 and October 2019. At this stage, the plan was for Mr X to return to School Y and previously it had been stated that School Y should provide this OT therapy programme. But, in early 2019, School Y explained that it could not provide this. The lack of an OT support programme amounts to fault.
117. After the annual review of October 2019, the Council provided training to staff at resource B to better manage Mr X’s difficulties (and other pupils’ difficulties) regarding his motor skills and handwriting. So, I accept the Council had taken action to provide the OT support programme.
118. However, the complaint is also that there was no personal budget offered. The Council points out that a personal budget can only be requested at an annual review. The Council says that Mr X’s parents did not request this at the October 2019 annual review, and I cannot see, on the evidence available to date, that they did make this request. So, I do not find fault on this aspect of the complaint.

No laptop as recommended by OT for use at home and school (Mr X had to buy his own laptop after a year of not being provided with one, but the Council has paid half);

119. The Council says that this was in Section F in the December 2019 EHC Plan but not the previous ones. Mr X’s parents say that this is not the case.
120. The December 2017 EHC Plan had no reference to a laptop in Section F. I also cannot see reference to this in the 2018 EHC Plan.
121. In October 2019, after the annual review, the Council says that resource B purchased two laptops. Mr X’s parents say that these did not work properly, and they returned them. Mr X’s parents then purchased a MacBook for Mr X and the Council agreed to make a contribution of £600.00.
122. While there may have been a delay in ensuring Mr X had a workable laptop, I am satisfied that this matter has now been resolved and that settles that aspect of the complaint.

Did not arrange as agreed appropriate height desk and chair as advised by OT;

123. The Council says that this issue arose in October 2019 at the annual review. Resource B provided chairs. On 24 October, Mr X’s parents expressed satisfaction with these. But Mr X’s parents say that these chairs were not provided at resource C.
124. The Council says that the 2019 EHC Plan did not refer to appropriate height desk or a therapeutic desk.
125. I am satisfied that there were appropriate chairs for Mr X at resource B, but it appears they were not at resource C. So, while this was fault, it would appear that Mr X spent little time at resource C.
126. I do not have enough evidence to say whether appropriate desks were provided.

No core and postural skills programme for 15-20 minutes once a week; and no light physical education (PE) sessions (from June 2019, Mr X had to come home to receive PE as resource B could not facilitate this);

127. The Council says that resource B offered light PE sessions, but Mr X did not participate in these. I accept this and therefore find no fault.
128. The Council agreed to provide funding for Mr X to attend a local gym. I am satisfied that this met the above need.

The parents say that they were paid 45 hours of direct OT (rather than the 47 hours as stipulated) and the Council used the 2018 budget and never updated it or costed the direct OT properly. The parents received around £3,800 for direct OT. In addition, the Council paid more for the sister, for the same hours.

129. In November 2018, it was agreed between the Council and Mr X’s parents that the direct OT would be at a cost of £85 per hour. The Council considers that the payment made for OT services between December 2018 to April 2020 was sufficient.
130. It seems the main concern is that Mr X’s parents were paid more for similar services for Mr X’s sister. The Council has explained that this is because the cost was calculated on a new commissioning basis. Two hours were also deducted because the OT was unable to attend the annual reviews.
131. I find no fault here.

Findings on complaint (b)

132. I have identified some faults in the lack of special educational provision (SEN) for Mr X in accordance with his EHC Plans.
133. I also consider that the failure to hold an annual review in 2018 meant that there was a lost opportunity to have a formal meeting, with School Y, resource B, the Council and Mr X’s parents, about the concern in relation to the lack of some required SEN provision. As with the GCSE options, discussions about this provision proceeded in a piecemeal way in 2019.
134. The Council says that it put in place as much SEN support as was possible in compliance with Mr X’s EHC Plans, especially after the annual review of October 2019 when it was agreed that resource B would be Mr X’s educational placement for the remaining of Year 11 (Mr X’s GCSE year). The Council agreed a financial support package to resource B to support all pupils, including Mr X.
135. Mr X’s parents say that this funding was provided in January 2019. But Mr X did not benefit from this. However, additional funding is normally used for the benefit of all pupils with SEN, and it would be impossible to work out what was spent on Mr X and what was spent on other pupils. So, I do not find fault on this aspect.
136. As with complaint (a), the uncertainty about Mr X’s placement and the dual registration, created difficulties in ensuring Mr X had all the SEN support required by his EHC Plans. Had there been an annual review in October 2018, a further amended EHC Plan and a SEND appeal sooner than August 2020, it is very likely that these difficulties may have been resolved sooner.

What injustice has been caused?

137. In considering this, I am mindful that Mr X and his parents were very keen for him to remain at resource B although Mr X’s parents say their first choice was another school, School Z, an independent school for Creative Arts. But the fact Mr X could not attend this school is outside my investigation period.
138. The Council would have been in its rights to insist that Mr X be returned to School Y, or another school, given the SEND Tribunal had ordered this in October 2018. But the Council did not do this, and Mr X and his parents were relieved that this was the case. Mr X’s parents placed their son’s mental health as their priority while also trying to ensure that he received an education, at a key stage in his school career, on par with his peers.
139. I am also mindful that the Council has found this a challenging situation and there is evidence of officers trying hard to resolve difficulties. After October 2019, when it became known that resource B could be named as an educational placement, it seems that the Council took even more proactive action to ensure that staff at resource B were trained and could provide for some of the SEN of its pupils.
140. In considering the injustice, I have to take into account the SEND Tribunal decision of August 2020. There were three main issues which the Tribunal was able to consider:

“(a) how the OT provision [Mr X] required should be specified;

(b) whether [Mr X] required cognitive behavioural therapy (CBT); and

(c) whether [Mr X] required distance learning in relation to Music”

141. The SEND Tribunal stated that the parties agreed broadly the level and content of the OT Mr X required as set out in the 2018 OT report. It was agreed that the relevant parts of Section F should be brought in line with the OT’s recommendations. The SEND Tribunal of August 2020 therefore ordered amendments to section F of Mr X’s EHC Plan, which it is likely the Tribunal would have done had there been an earlier SEND Tribunal.
142. It was noted that there was an ongoing dispute between Mr X and the Council in relation to the personal budget. The Tribunal decided:

“to remove references to the personal budget in relation to occupational therapy in Section F so as to leave both options open. For the avoidance of doubt, [Mr X] will still retain the option of having a personal budget and any such budget should be reflected in Section J.

That the Cognitive Behavioural Therapy (CBT) should remain in the Plan as an option available to Mr X”.

143. I consider that this supports the view that Mr X required CBT to cope with his PTSD.
144. The SEND Tribunal did not conclude that Mr X required distance learning in relation to Music because, as I understand it, there was insufficient evidence that this would help his manual dexterity and was not an OT need. But Mr X’s request for an online course to supplement his Music GCSE is a separate matter and I have already indicated that I could not see why this could not have been provided during Mr X’s GCSE final year.

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Agreed actions

145. We take the individual circumstances of each complainant into account when recommending remedies. For injustice such as avoidable distress, harm or risk, the complainant usually cannot be put back in the position they would have been in but for the faults identified. Therefore, we usually recommend a symbolic payment to recognise the impact of the fault on the complainant.
146. Distress can include uncertainty about how the outcome might have been different but for the faults and can include lost opportunity.
147. Where there has been avoidable distress, our recommendation to remedy such injustice are normally between £300 to £1,000 depending on the severity of the injustice, the vulnerability of those affected and whether the injustice is over a prolonged period.
148. In case of lost educational provision, we normally recommend £200 to £600 per month.
149. In this case, avoidable distress, lost opportunities and uncertainty is the injustice caused by the identified faults. But I cannot say the outcome would have been better for Mr X, but for the Council’s faults.
150. The Council has agreed that, within six weeks of the final statement, it will:
1. apologise to Mr X and make a payment of £350 for the faults identified in complaint (a), which he can use as he considers appropriate. The payment is at the lower end because I cannot say the outcome would have been different;
2. pay £2,200 for lost education. This amounts to two months for 2018 and nine months for 2019 at the rate of £200.00 per month. This is at the lower end of the tariff because Mr X was receiving an education and the loss is in relation to specific SEN provision. In respect of January to March 2020, I consider that the Council made efforts to provide an education and, whatever the reason, Mr X and his parents decided to withdraw him for resource B. There are also different narratives about what happened during this period which I cannot fully determine;
3. to avoid further complaints about dual registration, the Council will devise a clear working protocol about how schools and its medical educational hubs should work together when educating children and young people with SEN and medical needs who are unable to attend their main school, however temporary. Particular attention should be paid to pupils in their GCSE years (Years 10 and 11); and
4. the Council should use its new commissioning arrangements to calculate the OT personal budget.

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Final decision

151. I consider that there has been fault causing an injustice. The Council has agreed the recommended remedy. I have therefore completed my investigation and am closing the complaint.

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Parts of the complaint that I did not investigate

152. The Ombudsman cannot investigate actions with a school. So, I have not investigated any complaint about School Y.
153. I have not investigated the complaint that Mr X received no education since March 2020 during lockdown. This is a new complaint which will be considered by the Ombudsman.
154. I have not investigated the complaint about the Council’s alleged delay in following up actions after the August Tribunal 2020 or about the delay in issuing an amended Plan, after the annual review in 2020. These too are new complaints, are inter-related and occurred mainly during the lockdown period when there was a relaxation of the regulations concerning EHC planning and provision of education. The Ombudsman will consider this as a new complaint.

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Investigator's decision on behalf of the Ombudsman