Summary: Mr D complained the Council delayed in putting in place occupational therapy needed by his son, which formed part of his Education, Care and Health Plan. We upheld the complaint, finding fault in the delay and in the failure of the Council’s complaint procedure to resolve this matter. The Council accepted these findings. To remedy the injustice caused by the loss of service to Mr D’s son it has agreed a series of actions, detailed at the end of this statement.

The complaint

1. I have called the complainant ‘Mr D’. I have called his son ‘E’. Mr D complains the Council delayed in putting in place occupational therapy needed by his son, who has special educational needs and as a result, has an Education, Care and Health Plan (EHCP). Mr D is unhappy that using the Council complaints procedure did not result in an earlier resolution to his complaint.
2. Mr D says as a result of the delayed provision his son missed out on support in managing his sensory needs. This causes E anxiety and can result in destructive behaviours such as breaking objects, putting himself at risk or harm or striking out at others. Mr D says that to support E he has paid for physical activities and sensory massage to try and make up for the loss of therapy.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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. If we are satisfied with an organisation’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

6. Before issuing this decision statement I considered:

• Mr D’s written complaint to the Ombudsman and any supporting information he provided;
• communications between Mr D and the Council about the matters covered by this complaint, which pre-dated this investigation;
• information sent to us by the Council in response to written enquiries;
• any relevant law or statutory guidance, as well as guidance published by the Ombudsman on good administrative practice and remedying complaints.

7. I also gave Mr D and the Council a draft version of this decision statement and invited their comments or to submit any further evidence considered relevant to the complaint. I took account of any submissions they made before deciding to complete my investigation and issue this final decision.
8. We have an information sharing agreement with the Office for Standards in Education, Children’s Services and Skills (Ofsted). Under the terms of that agreement I will share my final decision with Ofsted, before its publication on our website.

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What I found

Chronology

9. E is a child of primary school age. In November 2021 he attended a mainstream school. He had an Education, Care and Health Plan (EHCP) which set out his special educational needs and how these should be met.
10. During November 2021 an occupational therapist assessed E. They identified that he had sensory processing difficulties in response to auditory, visual, touch, body awareness and movement sensory systems. The therapist recommended E have a sensory plan. This would first help him to increase his knowledge and awareness of these difficulties. Second, to help give him strategies to cope with them. Third, to also give adults working with E advice on strategies to help meet his needs in this area. This would include giving advice on a sensory diet and creating a more calming environment.
11. I understand the therapist issued their report setting out their findings in December 2021, with Mr D receiving his copy in early January 2022. He understood the Council would consider the content of the report, make necessary changes to E’s EHCP and put in place the therapeutic provision recommended.
12. But Mr D heard nothing for several months. In late May 2022 he chased the Council for an update and received a reply saying it was still considering the content of the report. In June 2022, he therefore made a complaint unhappy with the delay.
13. The Council said it would reply in 20 working days but did not meet this timescale. After chasing from Mr D, the Council replied in the second half of July 2022. The reply said the Council was updating E’s EHCP. This would name a specialist school E would attend from September 2022. The reply said the new school would work with its in-house therapist to deliver occupational therapy to E. The Council apologised for the delay in providing the therapy. It explained E’s caseworker had to prioritise other work which had delayed its actions having received the therapist’s report. Also, it explained there was a shortage of private occupational therapists in the area who could undertake work with E.
14. Mr D was unhappy with this reply and sent an email to the Council asking four questions. Three of these pressed the Council for more explanation for the delay. A fourth asked it to be more specific about the provision it proposed E would receive at his new school.
15. By October 2022, despite chasing, Mr D had received no reply to his email. The Council had updated E’s EHCP but he was still not receiving occupational therapy. Mr D contacted this office wanting us to investigate. We noted he had not completed the Council’s complaint procedure. So, we referred his complaint back to the Council.
16. The Council sent its final reply to Mr D’s complaint in early January 2023. This identified that E's occupational therapy had still not begun. It expected it to begin the following week. The Council said the therapist would use their first session with E to “update their assessment”. After that E would receive twelve weekly sessions. At the end of which it would invite Mr D and his wife to a ‘planning meeting’ to review E’s progress. It would also invite the independent therapist, school and a Council representative.
17. In its January 2023 reply to Mr D’s complaint, the Council apologised for the further delay in arranging the therapy. It explained to provide the therapy E’s school needed more funding. There had been ‘miscommunication’ about whether it was for the school or Council to obtain the cost of the therapy. The Council recognised failing to chase the school to see the therapy was in place.
18. However, the Council also said the school would not provide therapy during the first half-term of a pupil’s attendance at the school, while they became familiar with the adults working there. It also set out some of the daily activity the school undertook with E which provided “a range of sensory activities”. Also, that it did not think E had suffered any ‘loss of learning’ because of the delay in the therapy starting.
19. But the Council recognised its delay had put Mr D to time and trouble, chasing the provision and making his complaint. It provided a further apology and offered him a symbolic payment of £300 in recognition of this. It also recognised that it had never replied to his email of August 2022 and promised to do so by the end of the month.
20. E met with the occupational therapist during the Spring Term 2023. In March 2023, Mr D received an update telling him the therapist was reviewing E’s “current needs and presentation”, comparing this with their original assessment. This would be to devise an up-to-date programme for supporting E. An email from the Therapist also referred to seeing E during March 2023 “put a programme together”. Mr D considers most of the work undertaken by the Therapist was therefore in assessing his needs, rather than working to meet those needs. He considers this would have been unnecessary had the Therapist’s recommendations received January 2022 been acted on promptly.
21. During this investigation, at the beginning of May 2023, Mr D received a copy of a sensory plan devised by the Therapist to support E moving forward. But before receiving this, Mr D told us he had received no updated assessment of E’s occupational therapy needs.
22. Mr D says that he has received no invite to any planning meeting and no reply to his email of August 2022.
23. Mr D says that given the delay in E’s occupational therapy beginning he and his wife put in place various strategies to try and meet his sensory needs. These included supporting him attending a climbing club and receiving sensory massages. They have also bought exercise equipment. Mr D asked for consideration of a payment of around £2000 to recognise the costs incurred for these items and services.
24. Mr D also told us that E and his sibling receive some support via the Council’s children’s services as ‘children in need’. He makes no complaint about those services. But I noted the information as I considered it relevant to this decision.

My findings

25. There is no specific guidance given to the Council on how long it should take when it receives new specialist advice for a child with an EHCP. But where it amends an EHCP following an annual review, it should issue an amended draft EHCP within four weeks and a final version within 12 weeks.
26. Of course, amending an EHCP and making the provision set out in the EHCP are not the same thing. But once an EHCP identifies what education provision a child needs, the expectation must be that this is what they receive.
27. Taking account of the above, I consider the Council should have updated E’s EHCP within around four weeks of receipt of the Occupational Therapist’s report based on their assessment of November 2021. It should have ensured the occupational therapy provision was in place within a maximum of three months.
28. The Council received the therapist’s report no later than early January 2022. So, in line with my thinking above it should have updated E’s EHCP and begun making the provision identified in that, by the end of March 2022.
29. But E did not begin to receive that provision until January 2023. I note the reasons put forward by the Council for the delays. I accept that its caseworkers had other significant demands on their time during the early months of 2023. However, it was still a service failing for the Council not to act sooner when it received E’s occupational therapy report.
30. I also accept there may have been a pause in E receiving occupational therapy when he joined his new school in September 2023. But any ‘acceptable’ delay here forms only a small part of the whole. On its own account, the Council found E could have begun receiving therapy at his new school from the second half of the Autumn term but for a communication mix-up.
31. I turn next to considering the consequences of the delay on E and his family. The Council says the delay in therapy has not caused a ‘loss of learning’ to E and I accept this. However, the therapy is still an integral part of his EHCP. It will help E to learn, by giving him greater understanding of his sensory difficulties. It will help the school to teach E by providing advice on the ideal learning environment for him. I consider the absence of the therapy will therefore have had a negative impact on E’s education. This is an injustice.
32. I also find the lack of therapy is likely to have had a wider impact on E’s family. His parents will also use the plan and sensory diet to help meet his needs. This in turn may reduce the number or severity of difficult behaviours E presents at times. This is something I therefore give some limited weight to. Although I am also mindful that the Council’s education service has a role to support E with his education only.
33. But the failure to provide E’s therapy will also have had other impacts on Mr D and his wife. In its complaint response, the Council referred to their ‘time and trouble’. By this I understand it refers to the repeated chasing Mr D had to undertake to get the Council to act after receiving the Therapist’s report. Also, after making his complaint. I consider the apology and payment provided by the Council a fair and proportionate remedy for this particular injustice.
34. However, I find a further injustice caused to Mr D as he points to the steps he and his wife took to try to make up for some of lost provision for E. I accept that what they have provided is not identical to occupational therapy provision, But Mr D has researched and paid for items and services intended to reproduce some of what E’s occupational therapy should provide. Just as the steps recommended by the occupational therapist in school are likely to benefit E at home, so the steps taken by E’s parents to support his needs will likely benefit the school. I also take account that the Council’s children’s services provide some support to the family. Given these factors, I stopped short of recommending the Council meet Mr D’s expenses in full. But I considered it reasonable that it should make some payment towards the expenses asked for by Mr D given its failure to deliver a service to E over many months.
35. Finally, in considering recommended actions in this case, it is disappointing to note a further failure by the Council to follow up on the actions it agreed in January 2023. It did not, as promised, write to Mr D with a response to his email of August 2022. I find E has received some occupational therapy. But Mr D is uncertain to what extent this has been hands-on work with E or a reassessment of his needs, made more complicated by the failure to act on the earlier assessment. Mr D awaits the planning meeting where these matters can be discussed. I found it disappointing the Council had neglected these matters before our investigation, knowing Mr D will have lost some faith in its ability to deliver services to his son given his experience outlined above.

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Agreed action

36. For the reasons set out above, I found there was unremedied injustice to Mr D and E further to the Council’s consideration of their complaint. The Council has accepted this finding. It has therefore agreed that within 20 working days of this decision it will take the following actions to remedy their injustice. It will:
1. provide a further apology to Mr D accepting the findings of this investigation;
2. make a symbolic payment to Mr D of £1000; this is to reflect the loss of service provision to E due to the delay in beginning occupational therapy and as a contribution to Mr D’s costs in searching for suitable alternative activities. This payment is in addition to the £300 already offered by the Council for Mr D’s time and trouble;
3. convene the planning meeting with Mr D promised in January 2023, to review E’s progress with occupational therapy and to involve its SEN service as well as the therapist and the school. This meeting should provide Mr D with a clear answer to one of the questions he posed in August 2020 which was that he wanted detail about what the therapy for E would consist of. This meeting can therefore reflect on what provision has been given to E up to now and what plans there are to continue this moving forward;
4. provide the response to Mr D’s remaining questions set out in his email in August 2020, something the Council promised in January 2023. These questions asked the Council for more explanation about its handling of E’s case between January and June 2022.
37. The Council has also agreed to try and learn wider lessons from this complaint. I recognise that its caseworkers will be focused on their statutory duty to complete education, health and care needs assessments and reviews of EHCPs within timescales set by law. But there will also be occasions when they must respond on an ad-hoc basis to information which might necessitate a change to an EHCP and the provision identified therein. Within two months of this decision the Council has agreed that it will write to us and explain what action it proposes to take to ensure that it can:
1. respond to such queries within a maximum of four weeks and ensure any additional provision required is in place within 12 weeks;
2. identify cases where it exceeds these timescales with a process in place for how they will be escalated to ensure action is taken as required.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. For reasons set out above I uphold this complaint finding fault by the Council caused injustice to Mr D and E. The Council has accepted these findings and agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman