Summary: Mrs X complained about the Council’s decision to only backdate a remedy payment for failure to provide SEN support for her son, Y, to 2020, rather than 2019. The Council was not at fault. We are satisfied that the Council considered Mrs X’s request for an increased remedy payment but decided the request for a remedy for the earlier period was made too late. This was a decision the Council was entitled to make.

The complaint

1. Mrs X complains about the Council’s refusal to backdate a remedy payment for failure to provide her son, Y, with occupational therapy (OT) and speech and language therapy (SALT) to April 2019.
2. She says the Council has provided no explanation as to why the payment was only backdated to September 2020.
3. The failure to provide OT and SALT had a significant adverse impact on Y because he was unable to access other specialist provision until this was provided.

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The Ombudsman’s role and powers

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. 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. I spoke to Mrs X and considered the information provided by her regarding her complaint.
7. I made enquiries of the Council and considered its response.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Special educational needs and Education Health and Care Plans

9. A child with special educational needs (SEN) may have an Education, Health and Care Plan (EHCP). An EHCP describes the child’s special educational needs and the provision required to meet them.
10. The council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Coronavirus

11. Between 1 May 2020 and 25 September 2020, emergency Coronavirus legislation was in force. This meant that if the Council could not meet the usual time limits for a reason relating to the incidence or transmission of coronavirus (COVID-19), the time limits did not apply. (The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020).

What happened

12. Below is a summary of the relevant facts in this complaint. It is not meant to record everything that happened.
13. Y (who is now in his early twenties) has SEN, including autism and verbal dyspraxia, that require additional support. He has an EHCP. This specified he should receive regular OT and SALT.
14. Until March 2019, Y attended College A, where SALT and OT were provided. This placement broke down. The Council was unable to provide OT and SALT due to lack of local resources. Y started attending College B in September 2020. College B said it was unable to provide therapy and so the Council would have to commission both OT and SALT in order to comply with the EHCP.
15. Mrs X sought legal advice about this lack a provision and her solicitor contacted the Council in November 2020. In response, the Council confirmed it would put in place OT and SALT. The Council failed to do so. It has explained this was not done, probably because the relevant officer left the authority.
16. Mrs X complained to the Council in October 2022 about its failure to provide OT and SALT since 2019. She asked the Council for financial compensation.
17. In response, the Council accepted it was at fault and apologised for the lack of provision. It also offered a financial remedy:

• £10,000 to remedy the injustice caused by the loss of SEN provision.
• £350 for Mrs X’s distress, time and trouble.

18. The Council explained it had regard to the Ombudsman’s Guidance on Remedies when deciding on this amount. The figure of £10,000 was based on £250 per month of lost provision for two years.
19. Mrs X challenged this calculation because only remedied two years of lost provision. It failed to provide a remedy for the earlier period from March 2019 (three years and three months). The Council maintained its position. Dissatisfied with the Council’s inadequate explanation and outcome, Mrs X brought her complaint to the Ombudsman.
20. In response to my enquiries about why the Council decided to backdate only to 2020, it has said:

• The 2020 solicitor’s letter only asked the Council to put in place provision going forwards. There was no request for a payment for lost provision.
• The Covid-19 emergency regulations (paragraph 11 above) relieved councils of certain obligations to provide SEN support.
• Mrs X’s request for financial compensation was not made until October 2022. Such a request should have been made much earlier, for example following the solicitor’s letter in November 2020.
• It cannot be asked several years after the event to compensate for lost provision and the remedy offered was fair and reasonable.

Analysis

21. The Council has accepted that it failed to provide services that, by law, it was duty bound to provide since 2019. However, in providing a remedy for this fault, it has decided to calculate the monthly payment from 2020. Mrs X says this is unfair and does not acknowledge the more prolonged period of injustice to Y.
22. The Council has provided the rationale for its position (paragraph 20 above). I do not consider the pandemic was relevant in this case. As Mrs X has correctly pointed out, Y has already missed out on a years’ worth of support by the time the period of lockdown and emergency SEN regulations came into force.
23. However, in my view Mrs X’s request for a remedy for loss of provision for the earlier period was made too late to the Council to cover the earlier period. Mrs X first complained to the Council in October 2022. I agree with the Council she should have complained (and sought a remedy) for what happened in 2019/20, much sooner. I appreciate Mrs X had more pressing matters to attend to, including Y’s health and support needs, but I not satisfied this compelled the Council to consider remedying much earlier events.
24. I have also considered whether the letter before action from Mrs X’s solicitor in November 2020 supports her case. I do not believe it does. Having read the letter, it is clear the request was for SALT and OT to be provided, not for a financial remedy.
25. Overall, I am satisfied the Council has acted reasonably in this matter and the remedy already offered is in line with our Guidance on Remedies.

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Final decision

26. I have completed my investigation. I have not found the Council to be at fault.

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Investigator's decision on behalf of the Ombudsman