Summary: Mr G complains the Council has failed to provide his daughter (Child X) with physiotherapy provision, as required by her Education and Health Care Plan. We found the Council has fallen significantly short of providing the provision Child X is entitled to receive by law. Further, the evidence shows a fundamental lack of management and oversight by the Council in relation to securing Child X’s education provision. We consider the failings identified have caused both Child X and Mr G a serious injustice. The Council has agreed to our recommendations to remedy this.

The complaint

1. The complainant, who I refer to as Mr G, is making a complaint for his daughter (Child X) who has special educational needs (SEN). Specifically, Mr G alleges the Council has failed to provide physiotherapist provision in accordance with Child X’s Education and Health Care Plan (EHCP).
2. Mr G says Child X has cerebral palsy and the work of the professional physiotherapist is important in helping her to develop her gross motor function. He adds that the lack of physiotherapy is impacting adversely on Child X’s health and development. As a desired outcome, Mr G wants the Council to comply with its legal obligations to provide Child X’s EHCP physiotherapy provision.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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).
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).
6. The Council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if the Council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135).
7. Where the Tribunal orders a council to amend an EHCP, the Council shall amend the EHCP within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014).

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How I considered this complaint

8. I have reviewed Mr G’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable legislation and policy. Further, I have gathered information in relation to Child X’s physiotherapy through the NHS Trust which provides this. I invited both Mr G and the Council to comment on a draft of my decision. Each of their comments were fully considered before a final decision was made.

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My findings

Background and legislative framework

Education and health care plan (EHCP)

9. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
10. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
11. When an EHCP is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
12. Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
13. The First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.

EHCP annual review

14. The Annual Review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan.
15. The ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (the Code) is statutory guidance. This means local authorities must follow the Code when making decisions about children with EHCPs. The Code says: “9.169 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, and the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC plan or previous review”.
16. In practice the review covers not just the annual review meeting, but the Council’s decision (to maintain, cease or amend the Plan) following the meeting. Each of these three decisions carries a right of appeal to the SEND Tribunal.

What happened

17. The Council has maintained an EHCP for Child X since November 2016. This identified specific provision to support Child X, including individual physiotherapy sessions and a physiotherapy programme devised by paediatric physiotherapist to improve her mobility, co-ordination and core stability. Specifically, Child X was entitled to receive:
1. Physiotherapy programme. A qualified physiotherapist will develop and maintain an in-school physiotherapy programme.
2. Blocks of therapy. The physiotherapist will provide 6-week treatment blocks (individual sessions of 45-60 minutes duration) as appropriate to a minimum of two and maximum of three per year.
3. Reviews. The physiotherapist will review needs and contribute to Child X’s annual review. The physiotherapist will also review Child X’s programme on a half termly basis.
18. In December 2020, Mr G complained to the Council in relation a lack of physiotherapy provision for Child X since 2019. In January 2021, the Council responded to Mr G that Child X’s EHCP does not mention any physiotherapy blocks of treatment. The Council also said that physiotherapy blocks would only be provided to Child X following surgery or botox to treat her cerebral palsy.
19. In February 2021, the Council issued an amended EHCP for Child X.
20. In March 2021, Mr G appealed against the contents of Child X’s EHCP. Specifically, Mr G disagreed with the Council’s assessment of Child X’s needs, as well as the identified physiotherapy provision the Council was required to provide in order to meet those needs.
21. In May 2021, the Council issued its final response to Mr G. It said Child X’s EHCP content was now with the SEND Tribunal. It said its position remained as set out in its first complaint response to Mr G in January 2021.
22. In July 2021, the SEND Tribunal heard Mr G’s appeal. The appeal concerned amendments relating to motor difficulties and occupational therapy and physiotherapy provisions. The SEND Tribunal issued an Order that the Council amend Child X’s EHCP to include additional physiotherapy provision. The same month, the Council issued a further amended EHCP with the necessary amendments. Generally, this made provision for Child X to receive:

1. Physiotherapy programme. A qualified physiotherapist will develop and maintain an in-school physiotherapy programme.
2. Blocks of therapy. Direct physiotherapy carried out on a one-to-one basis by a qualified and experienced pediatric physiotherapist. A minimum of two blocks to be provided per academic year. Blocks of weekly sessions. Each session being of a minimum of 60 minutes duration, with between a minimum of four and maximum of six sessions in each block.
3. Assessments. Two 60 minutes sessions of CPIP range of movement assessments. This also includes two 60 minutes physiotherapy sessions by a CPIP trained paediatric physiotherapist.
4. Reviews. The physiotherapist will carry out half termly review visits to assess and change the physiotherapy programme according to need. The physiotherapist will also contribute to the annual review process by preparing an annual review report and attending the annual review meeting.
1. In April 2021, Mr G brought his complaint to the Ombudsman. He says that since the date of his complaint to the Council, it has not provided Child X physiotherapy in accordance with her EHCP.

My assessment

Time Limitations

24. By law, I cannot investigate any complaint made more than 12 months of the complainant becoming aware of the problem, unless there are good reasons to exercise discretion in this respect. Mr G’s complaint relates to EHCP provision provided by the Council in each year since 2019. On the face of it therefore, parts of Mr G’s complaint are late. However, I am exercising my discretion to investigate because I have found widespread fault by the Council in relation to Child X’s EHCP provision. I believe my finding merits going back and addressing these failings when they occurred. Despite the passage of time, I consider I can ascertain all relevant evidence and achieve a sound, fair, and meaningful decision. As to scope, I am investigating EHCP provision for the following periods:
1. the 2019/2020 academic year (September 2019 to July 2020);
2. the 2020/21 academic year (September 2020 to July 2021) and;
3. the 2021/22 academic year (September 2021 to July 2022).

Council’s complaint responses

25. I find the Council’s complaints process was unfit for purpose in Mr G’s case. The Council’s stage one response incorrectly stated Child X’s EHCP made no reference to blocks of physiotherapy when it contained a number of provisions on the subject. The Council’s stage two response declined to investigate the issues because Mr G had appealed to the SEND Tribunal which would decide on the contents of the EHCP. However, Mr G’s complaint to the Council was not about his appeal to the SEND Tribunal, but EHCP provision. Despite Mr G’s appeal to the SEND Tribunal, the Council was still under a duty to provide the provision set out in Child X’s EHCP. This is not an issue which would be considered by the SEND Tribunal. At no point were the issues raised by Mr G investigated by the Council or responded to with accuracy. This amounts to a wholesale service failure in the complaints process and so I therefore find fault by the Council.

Management and oversight

26. The Council has a legal duty to secure EHCP provision (see Paragraph 6). As part of my investigation, I made formal enquiries of the Council to understand whether it was meeting its EHCP provision commitments for Child X. However, the Council did not hold any information with respect to what physiotherapy provision Child X was receiving and was unable to respond to my enquiries in this regard. Further, it did not have a system in place in order to obtain this information from the NHS Trust without the consent of those with parental responsibility for Child X. I was therefore required to use my formal information gathering powers requiring the NHS Trust to provide the necessary information.
27. This significantly delayed my investigation. However, it also demonstrates a lack of management and oversight by the Council in relation to Child X’s provision. The Council needs to be in a position to understand whether it is providing the necessary support to Child X and the evidence shows it is not. This demonstrates poor administrative practice by the Council and so I find fault in this respect.
28. Separately, it must be noted that Child X receives two separate forms of physiotherapy to support her cerebral palsy. The first form of physiotherapy is given in relation to Child X’s botox treatment. Child X has botox treatment in order to temporarily relax spastic muscles and provide the opportunity for those muscles to be stretched and for opposing muscles to be strengthened. Physiotherapy is required to ensure that the botox treatment is as effective as it can be. This is not provision maintained by the Council under Child X’s EHCP.
29. The second form of physiotherapy is provided to improve Child X’s gross motor skills. This is provided through blocks of physiotherapy which is identified provision under her EHCP. Therapy under the EHCP is aimed at Child X’s broader function, functional development and access to and participation in the curriculum. It works on the skeleton and muscles in a wider sense and not just on one affected limb (as it does through botox treatment). This therapy should fully engage with Child X’s school staff to inform learning for all those supporting her.
30. The distinction between these two forms of physiotherapy is important. This is because the NHS Trust has included both forms of therapy when providing an overview of what EHCP provision has been provided to Child X. In addition, the Council wrote to Mr G in its formal complaint response that Child X would only receive physiotherapy if she required botox treatment or surgery. This is strictly not the position as set out in Child X’s EHCPs. Provision of physiotherapy is to be provided to address her gross motor skills, regardless of botox treatment or surgery. I find that the Council is fundamentally misunderstanding what provision it is required to offer Child X in accordance with her EHCP.
31. The finding of this investigation is the Council cannot include physiotherapy in relation to Child X’s botox treatment as contributing to her EHCP provision. Neither Child X’s initial nor amended EHCPs refer to botox treatment. Further, the physiotherapy which is identified requires the engagement of school support staff to inform activities and learning. The records I have reviewed shows that Child X’s botox treatment does not involve her school support staff, learning or curriculum.

Physiotherapy provision (2019/20)

32. I have reviewed information provided by the NHS Trust for physiotherapy provided to Child X for the 2019/20 academic year. In the year 2019, Child X received six one-to-one physiotherapy sessions with a qualified physiotherapist (each session ranging between 45 and 60 minutes). These were provided between May and June 2019 and therefore fall outside the scope of the academic year I am investigating (September 2019 to July 2020). Nevertheless, I note the frequency of these sessions were weekly and conformed to the EHCP.
33. For the year 2020, the NHS Trust’s records show that Child X received one physiotherapy session in school. This was provided in January 2020. I have not seen any evidence that any more physiotherapy was provided to Child X involving her school support staff or curriculum which is consistent with her EHCP. The records of one-to-one therapy I have been provided includes general appointments and attempts to contact Child X’s parents. These do not count towards Child X’s EHCP provision. I therefore find that for the academic year 2019/2020, Child X received one physiotherapy session. Under the EHCP, she should have received a minimum of 12 sessions. I therefore find serious fault by the Council in this respect.

Physiotherapy provision (2020/21)

34. As identified earlier, Child X received one physiotherapy session in the year 2020 which was consistent with her EHCP. For the year 2021, the NHS Trust’s records show that Child X received six physiotherapy sessions between March and April 2021. However, these all related to Child X’s botox treatment. As said, these sessions do not form part of Child X’s EHCP provision. I therefore find that for the academic year 2020/2021, Child X received one physiotherapy session. Under the EHCP, she should have received a minimum of 12 sessions. I therefore find serious fault by the Council in this respect.

Physiotherapy provision (2021/22)

35. Following the SEND Tribunal’s Order, the Council issued an amended EHCP for Child X in July 2021. This meant Child X should have received the provision outlined at Paragraph 22. The evidence shows Child X received two physiotherapy sessions, one in July 2021 and the other in August 2021. The NHS Trust has confirmed Child X has not received any further physiotherapy beyond August 2021. Further, it told me it had not provided the CPIP provision set out at Paragraph 22, also for reasons of business continuity.
36. I sought confirmation from the NHS Trust whether any further physiotherapy would be provided to Child X before July 2022 (the end of her academic year). The NHS Trust responded that its children’s physiotherapy service has been significantly impacted by the COVID-19 pandemic and has found it hard to recruit vacant positions. It added that the service is currently in business continuity mode, meaning physiotherapy is not being routinely provided. In addition, the NHS Trust explained that Child X would only receive one-to-one physiotherapy if there were new concerns raised or reported deterioration by her school or parents. It also confirmed that if Child X has botox treatment, then she will receive a physiotherapy block of treatment.
37. The Council informed me it was unaware of any issues relating to Child X receiving physiotherapy. Yet the NHS Trust’s service is currently in business continuity mode. This supports my findings the Council is not maintaining oversight of Child X’s EHCP provision. The NHS Trust’s response also supports the view that Child X is only receiving physiotherapy in relation to botox treatment which does not mirror the position of Child X’s EHCP. I do not consider there is any focus by the NHS Trust or Council in providing Child X her EHCP provision. Importantly, it is the Council who is ultimately legally responsible for securing Child X’s EHCP provision, not the NHS Trust.
38. This means Child X has not received any physiotherapy in accordance with her EHCP for the 2021/22 academic year so far. Further, she is unlikely to receive any provision through the NHS Trust for the remainder of the academic year. I therefore find serious fault by the Council in this respect.

Physiotherapy reviews

39. In accordance with both EHCPs (each referenced above), Child X should have received half-termly reviews in order to inform any needed changes to her physiotherapy programme. Moreover, the physiotherapist was required under the terms of Child X’s EHCPs to contribute to her annual reviews and transition arrangements to secondary school. The purpose of this was to ensure Child X’s programme remained suitable to her needs.
40. The information provided by the NHS Trust demonstrates the Council has not commissioned reviews of Child X’s needs which are consistent with her EHCPs. In April 2021, the NHS Trust did provide advice to the Council to inform a review of Child X’s EHCP. Mr G has also confirmed Child X received a visit in September 2021 by physiotherapist to manage her transition to secondary school. There is also evidence of the NHS Trust carrying out a single review of Child X’s needs in the academic year 2019/20, and another in 2020/2021. The number of reviews did not conform however to the required amount under Child X’s EHCP in effect at the time. There is also no evidence to suggest any half-termly reviews were undertaken in the academic year 2021/2022. On this basis, I find fault by the Council for failing to monitor and review Child X’s needs, as required to do so.

Summary of fault and injustice

41. I have identified the following fault:
1. The Council’s responses to Mr G under its formal complaints process were poor and failed to address the issues raised by him.
2. The Council is not maintaining oversight of Child X’s EHCP provision and is unaware no provision is currently being made available. Further, the Council has shown a fundamental misunderstanding about what physiotherapy is to be provided to Child X and when (see Paragraphs 28 to 31).
3. The Council has failed to monitor and review Child X’s needs. Specifically, Child X has not received the benefit of the half-termly reviews she was entitled to receive. In some cases, there was no input by the physiotherapist in order to contribute to the Council’s annual reviews of Child X’s EHCPs.
4. For each academic year I have investigated, the Council has failed to provide Child X the number of physiotherapy sessions she should have received under her EHCPs. The number of sessions provided have been minimal and undermines the intended structure, frequency, and benefit to be derived from the sessions.
42. Importantly, the Council has appropriately made the point that for part of the period (2019 to 2022) I have investigated, some NHS services and EHCP provision generally was significantly impacted by the Covid-19 pandemic. The Council has acknowledged the failings identified and the impact on Child X and her family. That said, the Council emphasises that NHS services were required to prioritise need during the pandemic and there were changes to the law and this regretfully impacted on the provision Child X should have received. The Council’s comments in this respect are appreciated. However, the Council remained under a legal duty to meet the provision contained within Child X’s EHCPs.
43. A physiotherapist service is important in helping Child X develop her gross motor function, improve her strength and reduce and/or avoid pain. From my review of the complaint, the Council do not appear to be taking this with the seriousness it merits. The Council has fallen seriously short in providing the physiotherapy Child X needs. She is currently not receiving physiotherapy and the Council has failed to adopt contingency plans due to a lack of oversight and understanding. I am not a medical professional and cannot speak as to the impact on Child X’s health and conditions. I do however believe Child X has been denied the support she is entitled to and, consequently, that she has suffered serious loss as a result. The Council cannot retrospectively provide Child X with the support she has missed. I therefore propose to recommend a financial payment which reflects the provision she should have received and the injustice she has suffered.
44. Separately, I find that Mr G has suffered serious distress and uncertainty due to the failings identified. Specifically, Mr G has incurred significant time and trouble to ensure his daughter receives the provision she is entitled to. Mr G has been misadvised by the Council and his concerns have not been investigated. Like Child X, I consider Mr G has too suffered a serious and personal injustice.

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Agreed action

45. To remedy the fault and injustice identified in this statement, the Council has agreed to perform the following actions:
46. By no later than 1 July 2022:
1. The Council will provide Mr G a written apology which acknowledges the fault and injustice identified in this statement.
2. The Council will pay Mr G £5,000 to acknowledge Child X’s loss of EHCP provision over three academic years. This will be spent on the educational development on Child X or to arrange support in treating her conditions.
3. The Council will pay Mr G £500 to acknowledge the serious distress he has suffered by reason of the identified failings.
47. By no later than 1 August 2022:
1. The Council will ensure Child X’s receives the provision she is entitled to for the next academic year 2022/23 and beyond. To give effect to this, the Council should contact the NHS Trust to ascertain whether it will be able to meet the provision requirements in Child X’s EHCP going forward into the next academic year. Following this, the Council will carry out one of the following actions:

• if the NHS Trust confirms it will be able to meet the provision requirements in Child X’s EHCP, the Council will notify Mr G and keep him regularly updated as to the proposed schedule of physiotherapy sessions or;
• if the NHS Trust does not consider it will be able to provide the required provision going forward, the Council will seek to make alternative arrangements with a different professional physiotherapist service. The Council will notify Mr G of the alternative arrangements and keep him regularly updated as to the proposed schedule of physiotherapy sessions.

48. By no later than 1 September 2022:
1. The Council will review its complaint handling to ensure it offers a substantive consideration of concerns raised in its formal stage one and two responses.
2. At a senior level, the Council will undertake a detailed review of Child X’s case. The review will focus on monitoring EHCP provision where this is provided by an external contractor on behalf of the Council. The purpose of the review is to identify improvements with respect to demonstrating good administrative practice and maintaining quality oversight over delivering EHCP provision.

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Final decision

49. I have fully upheld Mr G’s complaint. The Council has fallen significantly short of providing the physiotherapy provision Child X is entitled to receive by law. Further, the evidence shows a fundamental lack of management and oversight by the Council in relation to securing Child X’s provision. I consider the failings identified have caused both Child X and Mr G a serious injustice. The Council has agreed to our recommendations to remedy this.

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Investigator's decision on behalf of the Ombudsman