Summary: Mrs D complained that the Council failed to provide sensory integration therapy to her son (B) as agreed at his annual review in June 2020, failed to explain the reasons for the failure, delayed in issuing the final amended EHC plan and failed to communicate clearly or promptly during this period. We found fault with the Council’s actions which has caused Mrs D and B frustration and time and trouble. The Council has agreed to increase its payment to Mrs D and makes a payment to B.

The complaint

1. Mrs D complained that Surrey County Council (the Council) in respect of her son, B’s special educational needs, has:
• failed to provide weekly sensory integration therapy sessions as agreed at his annual review in June 2020 and detailed in his Education, Health and Care (EHC) Plan issued on 8 October 2020;
• failed to provide an explanation for the lack of provision and for the case having to go to Panel on two occasions;
• given confusing and contradictory information about the provision; and
• delayed in issuing the final EHC Plan, providing a hard copy and in responding to her complaints.
2. This caused frustration, distress and time and trouble to Mrs D and B.

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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. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
5. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
6. 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)

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How I considered this complaint

7. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

9. Mrs D’s son, B has special educational needs and has had an EHC plan for several years. She has made three previous complaints to the Ombudsman about issues relating to the Council’s actions in respect of B’s educational needs. We have upheld them all.
10. This fourth complaint relates to the period from June 2020, following B’s annual review. He had been at his current school since September 2019. B had received sensory integration therapy (a type of sensory occupational therapy) from a private provider (Provider1) funded by the Adoption Support Fund which ended in November 2019.
11. Provider1 had also been delivering the occupational therapy detailed in his EHC plan and the Council had agreed to fund this until July 2020. Mrs D wanted this to continue for one to two terms to aid B’s transition back to school after the lockdown restrictions ended.

Annual review June 2020

12. Provider1 wrote an OT report in June 2020 for B’s annual review. It said B would require from September 2020:

“Weekly 1:1 sessions with an Occupational Therapist for up to two academic terms to support his transition into Year 10 post COVID-19.”

13. The notes of the Annual Review state:

“The meeting recommends that [B] continue weekly OT for at least 2 terms to support his transition back in to school and queried if this would continue to be from a private supplier. The departing OT recommended the following therapist as particularly experienced in attachment disorders… [Officer Z] to speak to management regarding occupational therapy to see if this can continue. Mum is keen for it to continue for 1 or 2 terms when [B] returns to school to help him transition back into school life following lockdown”.

14. The Council produced a draft amended EHC plan on 1 July 2020. In section F (which sets out the special educational provision, B required to meet the needs identified in Section B of the plan), it included the above recommendation from the OT report. It did not specify any sensory provision.
15. In section H1 (which sets out any social care provision to be made under section 2 of the Chronically Sick and Disabled Persons Act 1970) the plan stated:

“B requires Sensory Integration Therapy intervention to support the development of his sensory processing. He requires:

• Weekly one to one direct Sensory Integration Therapy sessions (48 weeks per year). To be delivered by [current sensory provider] at their offices, as commissioned by the Surrey adoption service. Funding agreed until March 2020…

Specifically, he requires:

• Individually planned treatment sessions comprising 45 minutes’ direct therapy and 15 minutes’ planning and documentation. One session to be carried out a minimum of once weekly.
• Intervention should be carried out in a suitable environment by an Occupational Therapist trained in Sensory Integration.”
2. Officer Z referred the case to the governance panel to authorise the continuation of full-time support and private OT from Provider1. On 23 July 2020 the Panel agreed the full-time 1:1 support and OT for two more terms only with Provider1. It said the Council’s therapy service would liaise with Provider1.
3. Officer Z emailed Mrs D on 13 August 2020 to inform her of the Panel decision. Mrs D was unaware it was going to Panel as she thought the provision was remaining the same and was concerned at the time it was taking to confirm the OT sessions.
4. On 26 August 2020 Provider1 said they could no longer provide the sessions in school and by 10 September 2020 they could not provide the sessions at all.
5. During this period, an occupational therapist (OT1) from the Council’s therapy service was visiting B’s school regarding another child. The school mentioned that B was waiting for occupational therapy and so OT1 contacted Mrs D on 2 October 2020 offering weekly virtual OT sessions but without any sensory input.
6. On 7 October 2020 Mrs D complained to the Council that OT provision did not match what had been agreed at the Annual Review.
7. On 8 October 2020 the Council sent Mrs D the final EHC plan by email. Section F remained the same as the draft version. Section H1 remained the same except the first paragraph (specifying the current provider for 48 weeks per year until March 2020) had been removed.
8. B’s caseworker also changed. Officer Z handed the case over to Officer Y. On 2 November 2020 Mrs D made a formal complaint about the OT provision, the high turn-over of case officers and the delay in issuing the EHC plan. She also requested a signed hard copy of the EHC plan. She received a hard copy of the EHC plan on 16 November 2020.
9. The therapy service and the SEN manager agreed that sensory therapy had been agreed at the annual review, approved at the Panel and was in the EHC plan.
10. The Council replied to the complaint on 15 December 2020. It apologised for the high turnover of case officers. It agreed that the OT provision did not match the Annual Review paperwork and Panel agreement. It apologised for miscommunication at the review which it said had resulted in confusion over the agreed provision. It also apologised for the time taken to issue the EHC plan.
11. In respect of the OT provision, the Council explained that the school made contact with OT1 during August regarding students requiring occupational therapy and as part of this process B was flagged to the service. As a result of this OT1 contacted Mrs D on 2 October 2020 to arrange virtual therapy sessions. It said OT1 believed there had been a misunderstanding over the level of occupational therapy support that B required and that sessions had started. It also said Officer Y was taking the case back to Panel on 17 December 2020 to consider whether a new provider could deliver all of B’s OT provision including the sensory therapy.
12. The second Panel did not approve the proposal. Further discussions took place before Christmas and the Council agreed to provide two terms of sensory integration therapy. In the meantime, the sessions with OT1 continued. The sensory sessions started at the end of January 2021 with Provider2. Mrs D escalated her complaint to stage two.

Stage two complaint

27. The Council responded on 4 February 2021. It said the panel in July 2020 had agreed that Provider1 should continue to deliver the occupational therapy. But the Council then overlooked that Provider1 was being commissioned as a provider generally and not for sensory integration therapy specifically. As a result of this mistake, OT1 began delivering the provision. It also said the Council’s agreement in December 2020 to fund Provider2 for two terms was also an error and it should have been provided by the Council’s therapy service. But it agreed to fund Provider2 until July 2021. From September 2021 the Council’s therapy service would deliver the occupational therapy.
28. It apologised for the confusion caused by the miscommunication. It said the OT as stipulated in the EHC plan had been delivered but by a different provider (OT1) until 26 November 2020. The Council agreed to arrange some catch-up session for B in the spring and summer terms. It offered Mrs D £100 for the distress caused by the mistakes and £100 for her time and trouble. It also recommended that B’s EHC Plan be amended to include OT1’s recent report and that the provision in section H1 should be deleted.
29. On 30 April 2021 the Council confirmed that Provider2 would provide two terms of OT until December 2021. It also said it was taking action to improve the consistency of communication with Mrs D.
30. Mrs D complained to us.
31. The Council has confirmed that Provider2 has given B nine sessions between February and July 2021 and nine sessions between September and December 2021. In addition to the 4.5 hours provided by OT(1) up to November 2020 this is a total of 23.5 sessions which roughly equates to two academic terms.

Analysis

32. The EHC plan finalised in October 2020 included the OT provision recommended by Provider1 at the annual review: to provide up to two further terms of occupational therapy through weekly 1:1 one-hour sessions. Mrs D argues that this should have been sensory therapy and the session should not have been provided by the non-sensory NHS OT. However, the EHC plan does not specify that the provision should be sensory and there is no requirement to specify a particular provider, so the sessions provided from October 2020 were in accordance with the EHC plan.
33. I consider the governance panel caused some confusion on this issue by specifying the provider should be Provider1 even though this was not a requirement of the EHC plan. The Council’s communication with Mrs D raised her expectations, that the OT provision should be sensory-based from Provider1. This in turn caused her frustration and confusion when a different non-sensory OT started the sessions. This was fault.
34. The Council caused further confusion by retaining in Section H1 the sensory integration therapy which had been funded by the adoption support service and ended in November 2019. Section H1 should have been deleted.
35. The Council delayed in issuing the final amended EHC Plan. The draft was sent to Mrs D on 1 July 2020. The final plan should have been sent to her by 26 August 2020. It was not sent until 8 October 2020, seven weeks late. The Council also delayed a further five weeks in sending Mrs D a signed hard copy until 16 November 2020. I accept that the COVID-19 pandemic was a significant factor in the time it took to finalise the EHC plan, but I still think the Council took too long to issue the final plan and send a hard copy to Mrs D. This was fault. It meant she was unaware that the EHC Plan did not reflect her expectations, causing her frustration and additional time and trouble.
36. However, once the Council identified the problem with the OT provision in early November 2020 it took action to secure the rest of the provision with a sensory provider. This was not specified in the EHC plan, and the Council was not required to change the provider. Mrs D had a right of appeal to the tribunal if she disagreed with the provision specified in the plan.
37. So, while there was a delay of approximately a term in securing provision from Mrs D’s preferred provider, the Council, by December 2021 had provided the sessions in accordance with the EHC plan and agreed with Mrs D.

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Agreed action

38. I welcome the action the Council has taken to put matters right and the fact that B has received the agreed amount of occupational therapy in accordance with his EHC plan. I also welcome the offer of payment to Mrs D. However, I consider an increase in the remedy is appropriate.
39. I recommended that the Council (within one month of my final decision):
• pays Mrs D £250 for her distress and time and trouble in pursuing this matter; and
• pays B £250 for the delay in receiving the occupational therapy in accordance with his EHC plan.
40. The Council has agreed to my recommendation.

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Final decision

41. I consider this is a proportionate way of putting right the injustice caused to Mrs D and B and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman