The Investigation

The complaint

1. Mrs X complained that the Council has failed to ensure her daughter, D, received the Occupational Therapy (OT) support set out in her Education, Health and Care (EHC) plan since February 2020. Without this support she says D’s mental health deteriorated significantly and she became unable to stay in mainstream schooling.

What we investigated

2. While investigating the complaint it became clear that the OT provision was not included in D’s EHC plan as Mrs X had understood. We therefore had to widen the investigation to look at the process of reviewing and amending the plan from February 2019.

Relevant law and guidance

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, 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), as amended)

4. 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.

5. 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 the final report with Ofsted.

Education, Health and Care plans

6. A child with special educational needs and disabilities (SEND) 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. Section F details the special educational provision the child needs.

7. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for producing and reviewing EHC plans. The Code is based on the Children and Families Act 2014 and the SEN Regulations 2014.

• Councils must review an EHC plan at least every 12 months.

• Councils must decide within four weeks of a review meeting whether they propose to keep the EHC plan as it is, amend the plan or end it. The council must notify the child’s parent and school of its decision.

• If the council decides to amend the plan, it must send the child’s parent details of the proposed amendments, including copies of any evidence to support the proposed changes. It must allow them 15 days to comment.

• Following comments from the child’s parent, if the council decides to continue to make the amendments, it must issue the amended final EHC plan as soon as possible, and in any case within eight weeks of issuing the notice to amend.

8. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. They only have this right once the final amended plan is issued.

9. Councils have a duty to ensure the special educational provision set out in an EHC plan is arranged. (Children and Families Act 2014 section 42)

10. The Courts have said councils owe this duty personally to the child and cannot delegate it. This means if a 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)

Impact of the COVID-19 pandemic

11. 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’.

12. The Secretary of State issued a notice under the Coronavirus Act 2020 to give councils more flexibility in dealing with EHC plans and provision. It temporarily changed councils’ absolute duty to ‘secure’ the education provision in an EHC plan to one of using ‘reasonable endeavours’ to do so. This change applied from 1 May to 31 July 2020. At the end of this period, councils’ usual duties resumed.

13. In March 2020, all schools were ordered to close, retaining some staff to provide education for the children of key workers and some 'vulnerable' children. These included children with an EHC plan. Schools did not have to allow all children with EHC plans to attend. Instead, the government asked councils to carry out a risk assessment with children who had an EHC plan to determine whether their needs could be met at home and whether they would be safer there than attending an educational setting.

14. The government issued guidance, ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’ on 30 April 2020. This gave advice and guidance for councils and schools on carrying out the risk assessments. It also explained to councils how to assess what support they could reasonably provide under a child’s EHC plan if the full provision could not be made.

15. The Government also introduced temporary regulations in force up to 25 September 2020 which allowed for the usual deadlines, such as for carrying out reviews and issuing EHC plans, to be relaxed. This applied where it was not reasonably practicable or it was impractical to complete the actions within the usual timescale required, for a reason relating to COVID-19. But the guidance made it clear that “if the final deadline …. had passed before 1 May, the relaxations to timescales for a reason relating to coronavirus ….could not apply because they were not in force then”.

How we considered this complaint

16. We produced this report after examining relevant documents and speaking to the complainant and to the relevant Lead SEND Co-ordinator at the Council, referred to as Officer B in this report.

17. We gave the complainant and the Council a confidential draft of this report and invited their comments. We took any comments received into account before the report was finalised.

What we found

Background

18. Mrs X’s daughter, D, has a diagnosis of autism and hypermobility. She has difficulties with co-ordination and is prone to sensory overload. She has had an EHC plan for several years. Mrs X says D is capable of doing well at school when she has support to regulate her emotions. At the beginning of the events in this complaint D was attending a mainstream primary school, School 1.

19. The last EHC plan in place before February 2020 was issued in September 2018. Section F of the plan included the following provision relating to Occupational Therapy (OT).

• Regular movement breaks to regulate behaviour and aid concentration and focus, as required throughout the day, to be provided by the class teacher/Teaching Assistant as advised by the OT.

• A programme of physical activities and co-ordination exercises to increase physical strength and motor skills, daily, dependent on OT and/or physiotherapy advice.

20. In October 2018 the Council commissioned a sensory assessment for D, which Mrs X had asked for, for mid-December. The OT service produced a report in January 2019 recommending extra individual support at school to help D with her sensory and motor control difficulties.

February 2019 to February 2020

21. An Annual Review meeting took place on 14 February 2019. Mrs X asked the Council to consider how to increase the level of OT support in D’s EHC plan. The sensory assessment was attached to the Annual Review report. The report identified that the EHC plan needed to be amended. The Council considered the OT report’s recommendations and obtained quotes for weekly OT sessions. Mrs X says the SEN Case Officer (Case Officer 1) consulted private providers and then said he needed to consult with the NHS OT service to see if that would offer a better value option. Mrs X says the officer told her the provision would be included in section F of the EHC plan.

22. The Council wrote to Mrs X in early August 2019 saying it proposed to amend the EHC plan. Case Officer 1 then left the Council. The Council did not reallocate the work to another officer.

23. Later in 2019 D started receiving weekly one-to-one OT sessions from an NHS therapist at a health centre. The Council says the NHS Trust arranged these sessions and they were intended to support sensory needs in the home. Mrs X says she understood the Council had arranged them after it had obtained the costings. She said the Council told her the EHC plan was a ‘living document’ and would be amended to include the sessions.

24. When a new case officer, Case Officer 2, became involved there was a further Annual Review meeting in mid-January 2020. The meeting considered the OT report and recommended amending the EHC plan to include additional support.

25. The Council issued an amendment notice and draft EHC plan on 3 February 2020. The Plan included the following extra OT provision.

• One-to-one sessions with a Paediatric OT for an hour a week, to support and develop sensory processing skills, emotional regulation, physical development and co-ordination.

• One-to-one support from school staff implementing OT recommendations daily throughout the school day to support sensory processing, physical skills and emotional regulation.

• OT to assess need and recommend appropriate equipment to help D with handwriting and encourage participation and confidence.

26. Mrs X responded, agreeing with the proposed provision. The Council did not issue a final EHC plan following the draft.

27. The OT sessions continued until February 2020 when Mrs X received a call from the therapist saying the centre was closing because of COVID-19 restrictions and she would let her know when the sessions could start again.

March 2020 to March 2021

28. In the March lockdown D’s school carried out a risk assessment and, in agreement with Mrs X, decided D should continue going in to school. The Council issued an assessment and ‘reasonable endeavours’ checklist to schools to complete for each pupil with an EHC plan. This asked about how the school was providing education to the pupil and whether the provision in section F of the EHC plan was being delivered. The Council asked schools to report whether there was any provision missing. The response it received from School 1 did not indicate any support was missing. D continued going to school throughout the summer term.

29. Mrs X says that from the beginning of the new academic year in September 2020 she started asking the Council when the OT sessions would start again. She says each time she received a different response but no information about when the sessions would resume.

30. An Annual Review meeting took place in December 2020. By this time there was a new Case Officer involved, Case Officer 3, who attended the meeting. Mrs X and School 1 agreed that despite the support School 1 was providing, D was not coping at school and her mental health had deteriorated. Mrs X noted that D had not had any OT sessions since March. The report of the meeting recommended D move to a specialist placement and that her EHC plan should be amended to include extra OT support. The Council agreed.

31. The Council issued a final amended EHC plan on 25 January 2021, still naming School 1. The plan included the OT provision set out in the February 2020 draft EHC plan.

32. At the end of January Mrs X appealed to the SEND Tribunal for a specialist placement. There was a hearing scheduled for June 2021 but the Council conceded before then, naming a specialist placement, School 2, for one year, from September 2021.

33. In response to our enquiries the Council said the lack of OT provision during the pandemic was mentioned at the Annual Review meeting, but at the time the main focus of the review was on the request for an alternative placement. Case Officer 3 said she was still relatively new to her post and “did not have a lot of knowledge about OT provision”. After raising the matter with her team, she advised Mrs X to “continue going through Health for the OT to start working with [D] again.”

34. In March 2021 the NHS OT who had been supporting D up to February 2020 contacted Mrs X to discuss re-starting the sessions. The OT confirmed she would be able to provide four follow-up sessions but not the continuing work as set out in the EHC plan. This was because she said she was “not currently commissioned to provide ongoing support”. She said she would arrange the four sessions with School 1 as soon as possible.

35. Mrs X passed this response on to the Council who said it would be in touch with her with more information about the next steps in arranging the OT provision. In response to our enquiries about what the Council did to arrange the OT support, the Council said it looked into a referral to an independent OT therapist but was told the therapist did not have the capacity.

Complaint

36. In late April Mrs X made a complaint to the Council, as follows.

• The Council had not put in place the OT provision set out in D’s EHC plan. D had been without regular OT since March 2020 and her mental health had deteriorated.

• Mrs X had contacted the SEN team several times but had had no response.

• At the end of March she had spoken to the Lead SEND Co-ordinator for her area, Officer B, who told her the Council expected the School to provide the OT. When Mrs X pointed out the responsibility lay with the Council to make the provision, she said Officer B agreed but said the School was already receiving funding and the Council had a duty not to increase public spending.

37. The Council replied to the complaint at the end of May. It said the current OT “commissioned by the Council” had not been able to deliver face-to-face therapy sessions due to COVID-19 guidelines. The therapist was no longer working with the Council. The Council said it was looking for a new therapist who would be commissioned for the start of D’s new placement in September 2021.

38. Mrs X was not happy with the response and wrote back to the Council. The Council’s reply in late June 2021 repeated the information it had given in the previous response. It said it was taking longer than expected to arrange a new therapist but said the OT would be commissioned for the start of the new placement in September 2021. It said it understood the concerns Mrs X raised about lack of provision set out in D’s EHC plan, but it could not comment on the concerns “as these should be raised directly with the school”.

39. There was further correspondence between Mrs X and the Council in June and July. We have set out below Mrs X queries and the Council’s answers.

• Mrs X queried the information the Council had provided about the original therapist, saying as far as she was aware the therapist still worked for the NHS and was available. The Council said it did not know why the previous OT did not hand over to another one as she is an NHS therapist attached to a hospital. It said once she left there was a “discussion about the section F provision being met by the [Council]”, but then there were difficulties as explained previously in finding an available therapist.
• Mrs X asked why D had not been offered any remote support. The Council said the independent therapist did not consider or offer remote work and it could not be sure this was an option available through the NHS.

• Mrs X asked why the Council had not offered any alternative OT provision to bridge the gap until the new therapist started in September. The Council said it had not been able to source an alternative.

• Mrs X asked why Officer B had said the Council expected the School to pay for the OT. The Council said: 
  
  “While the LA does hold the responsibility for the provision in an EHCP, there is an expectation that schools will use their delegated budget and other funding streams to make provision. Within some schools the purchase of OT and other therapies is provided by the school using the SEN funding for the young person. This was raised by the school at the time and they would not support the provision in this way.”

40. When Mrs X tried to clarify the points the Council was making to understand why her daughter had not received any OT, the Council said it had nothing further to add.

September 2021 onwards

41. D started at her new placement, School 2, in September 2021. Around two weeks into term, Mrs X wrote to the Council to say that much of the provision in D’s EHC plan was not in place, including OT, the sensory assessment, and movement breaks. She asked the Council to put the provision in place for D in line with her plan as soon as possible.

42. Case Officer 3 responded, saying she had spoken to School 2 and understood that “[School 2] are not able to set up the OT in [D’s] plan and that the EHCP details 1 hour of 1:1 a week with an OT, which the NHS have stated that they cannot provide”. She said she would seek permission from the Head of Service to approach an independent provider.

43. At the end of September Mrs X contacted the Council again asking for an update on the OT provision and other support in the EHC plan. She asked why the support was not in place, as the plan had been finalised some time ago. The Council explained it had made a referral and was waiting for a reply. Mrs X continued to ask what was happening during October and was again told about the Council’s unsuccessful approaches to the previous provider and another independent one.

44. In response to Mrs X’s question as to why the Council had not made the arrangements for OT during the summer holidays to be ready for the start of term, Case Officer 3 said as far as she was aware the Tribunal was in process which she was not involved with. So she was not sure why it had not been arranged. But once Mrs X had alerted her to the lack of provision in September she had been trying to get a quote.

45. By early November the Council had received quotes for the OT provision and it agreed to fund the OT assessment detailed in the EHC plan.

46. The assessment took place and the OT sessions started at the end of February 2022.

Conclusions

Delay in the Annual Review process

47. Mrs X’s original complaint was that the Council had failed to arrange the OT sessions in line with her daughter’s EHC plan since February 2020 when they stopped. Through this investigation it has become clear that the OT sessions were not in fact included in the EHC plan until 25 January 2021. We have therefore had to look at the history of the EHC plan since the last review before the OT sessions started. This was the Annual Review on 14 February 2019.

48. There was considerable delay in completing the review process. To meet the statutory timescales, the Council should have issued the notice to amend within four weeks and a final amended EHC plan eight weeks after that. So it should have issued the final plan in mid-May 2019. Instead, it took around six months to tell Mrs X it was going to amend the EHC plan. The process then stalled until February 2020 when the Council issued a draft plan. It did not issue a final plan until January 2021, after another Annual Review in December 2020. There was therefore a delay of around 20 months. This is significant fault.

49. Some of the delay occurred over the period covered by the temporary relaxation of timescales because of COVID-19. However as the review process should have been completed well before these rules were introduced, this cannot justify the delay.

Consequences of the delay

50. The OT sessions started in 2019, before the final amended EHC plan was issued. This means the delay in issuing the final plan did not result in loss of OT sessions up to when they stopped in February 2020.

51. We have considered the consequences of the delay from that point. The Council did not have a legal duty to ensure the OT provision was delivered until it was written into the final EHC plan in January 2021. Mrs X was not aware of this, which is why she framed her complaint to us as she did. It is understandable that she expected the Council to arrange for the OT provision to resume, given D had been receiving it and Mrs X had had discussions with Case Officer 1 about setting it up initially.

52. The extra OT provision was included in the draft EHC plan in February 2020. Given that this plan was the result of a stalled review process started a year earlier, we consider it likely, on balance, that the Council intended to amend the EHC plan in the same way following the Annual Review meeting in February 2019. This view is supported by what Mrs X says the Council told her at the time, and by the fact that it was the January 2019 OT assessment report that the Council used to inform the draft EHC plan in February 2020.

53. Officer B confirmed the intention was to amend the EHC plan to increase OT provision after the Council received the OT assessment report as part of the 2019 Annual Review. He said initially the OT was aimed at helping Mr and Mrs X provide support for D at home. The report identified a need to put support in place in school.

54. This means that but for the delay in completing the Annual Review process, the EHC Plan would have included one-to-one OT sessions by the time of the first national lockdown in March 2020.

55. If the OT support had been included in D’s EHC plan, the Council would have had a duty to ensure she received it. This would have applied for the whole of the period after the sessions stopped, apart from May to July 2020 when the ‘reasonable endeavours’ duty applied. So the delay in completing the review which started in February 2019 resulted in considerable loss of OT support for D.

56. Also the delay meant Mrs X lost the opportunity to appeal until January 2021 when the final EHC plan was issued. We do not know if Mrs X would have wished to appeal earlier, for example for a different placement. But the loss of opportunity is an injustice to her.

57. As it was, the Council did not take any action to seek alternative OT provision when the NHS OT provision stopped. It says this was because School 1’s risk assessment showed no gap in provision under D’s EHC plan. We have generally not criticised councils for failing to put provision in place from the beginning of the lockdown until the end of April. They were dealing at short notice with a new emergency situation, and there was no national guidance yet about how to implement EHC plans under pandemic conditions. But if the OT sessions had been set out in the EHC plan Mrs X would have been able to ask the Council to make reasonable endeavours to put them in place from the beginning of May. We do not know if it would have been possible to arrange any alternative remote provision from May to July 2020, but Mrs X is left with uncertainty about this.

58. Mrs X says she started contacting the Council again in September 2020 about OT provision but had no response. The only advice she received was to contact the Health Trust. If the OT sessions had been included in the EHC plan at that point the Council would have been obliged to arrange them.

Delay in putting EHC plan provision in place

59. From January 2021, when the OT support was written into the final EHC plan, the Council had a duty to ensure it was delivered. The sessions have only just started, over a year later. This delay is fault. In response to Mrs X’s complaints and our enquiries, the Council and individual officers have given various reasons for not putting the provision in place. These include:

• lack of knowledge about OT services;

• the Tribunal process being underway;

• D’s School being responsible for arranging the provision and being unable to do so; and

• the OT providers the Council usually use having no capacity.

60. None of the reasons put forward absolve the Council of its responsibility to arrange the provision. It is particularly concerning that even in the complaint responses, the Council appears to be shifting responsibility to schools to make the provision. Officer B explained that the Council provides the funding to schools to support an EHC plan and expects the schools to arrange the provision. This includes external therapies such as OT and Speech and Language Therapy. The only mechanism he referred to for monitoring whether the school arranges the support was the Annual Review process.

61. While schools are responsible for implementing day-to-day provision set out in a child’s EHC plan, the Council has the ultimate legal duty to ensure the provision is arranged. It cannot legally delegate the duty to schools or health providers. We consider that councils should have a mechanism in place for checking that once an EHC plan is issued for the first time or after a significant amendment, the required provision is put in place. So if the Council expects schools to arrange provision it should have a means of satisfying itself they have done so. If the provision has not been made, the Council needs to step in and arrange it. If a parent raises a concern or complaint that the support in the plan is not being implemented, the Council should investigate the matter promptly.

62. In this case, even when the extra OT provision was written into the EHC plan in January 2021 the Council told Mrs X it would not be arranged until September when D was due to change placement. The Council was at fault in failing to recognise that the duty to make the provision could not be postponed in this way.

Injustice caused

63. As a result of the delay in completing the review of the EHC plan and the delay in arranging the OT provision, D has missed out on support she should have had for two years. The Annual Review reports show this has affected D’s ability to meet the outcomes in her EHC plan. Mrs X says without support with her sensory needs D becomes distressed and the lack of support has contributed to her placement at School 1 breaking down.

64. The Council’s failings have also had an impact on Mrs X. She has experienced anxiety and distress, knowing that her daughter’s mental health was deteriorating. She has had to put considerable time and effort into contacting the Council about the provision and making her complaints. The unsatisfactory answers she received caused her frustration and resulted in her complaining to us.

Recommendations

65. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

66. In addition to the requirement set out above, to remedy the injustice caused we recommend that the Council take the following action within three months of the date of this report.

• Apologise to Mrs X for the failings we have identified and the impact on her and her daughter.

• Pay Mrs X £300 to recognise the anxiety and uncertainty about what provision D might have had between May and the end of July 2020 during the reasonable endeavours period, and the loss of opportunity to appeal.

• Pay Mrs X £250 to recognise her frustration and time and trouble in pursuing her complaint.

67. We also recommend the following payments which are based on our guidelines. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. In this case we recommend £400 a month to take account of D’s special educational needs and the importance of the provision to her, but also the fact that she was receiving education during the period. The sums should be used for the benefit of D’s education.

• £1,800 to reflect the loss of potential OT support from September 2020 to January 2021. This is based on the likelihood that OT would have been included in the EHC plan if the review process had been completed in time. Taking account of school holidays this is a period of four and a half months.
• £4,000 to recognise the loss of OT provision from January 2021 to the end of February 2022 when there was a clear duty to put it in place. Taking account of school holidays this is a period of 10 months.

68. We recommend that within four months of the date of this report the Council should make the following service improvements and provide us with evidence it has done so.

• Arrange training for relevant staff to ensure they understand the Council’s obligation to ensure provision under an EHC plan is arranged.

• Review its processes to ensure EHC plans are amended and issued following an Annual Review in line with statutory timescales and the requirements of the Code.

• Ensure the Council has a mechanism in place for checking provision specified in an EHC plan is arranged from the start of a new or amended plan.

• Review sources of therapy services and develop a plan to ensure it can commission therapies needed to support the EHC plans it maintains.

69. The Council is currently changing its procedures following an independent review of SEND services carried out in 2021, which highlighted some of the same issues arising in this complaint. The Council has confirmed that as part of these changes it has recruited extra staff, increased the SEND budget, provided training to staff, and provided extra special school places. It says this has already resulted in some measurable improvements in support and timescales. We welcome this commitment to widescale review and reform and see our recommendations as complementary to the work the Council is doing. In demonstrating it has implemented our recommendations, the Council may wish to refer to any action it is taking in response to the review.

Decision

70. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Mrs X and her daughter. The Council should take the action set out in paragraphs 65 to 69 to remedy that injustice.

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