Summary: Mrs C complained that the Council failed to provide the support for her daughter D, detailed in her Education, Health and Care Plan. We found fault with the Council’s actions. The Council has already made significant payments to Mrs C to recognise the lost provision and some of the private support Mrs C has provided in the interim. The Council has agreed to apologise, to increase the payments, to consider reimbursing any costs Mrs C incurred for Speech and Language Therapy and to provide an update on progress with its service improvements.

The complaint

1. Mrs C complained that West Northamptonshire Council (the Council), in respect of her daughter, D, delayed in providing the support detailed in Section F of her Education, Health and Care (EHC) Plan issued on 10 August 2022. D missed out on vital support which slowed her developmental progress and Mrs C had to fund the support privately at significant cost.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. 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 C and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Special educational needs

6. A child or young person with special educational needs may have an EHC Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
7. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this 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 liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)

Reviewing EHC Plans

8. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
9. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.

Personal budgets

10. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent so they can commission the provision in the EHC Plan themselves.
11. A child’s parent has the right to request a Personal Budget during a statutory review of an existing EHC Plan.
12. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent of their right to request a formal review of the decision.

What happened

13. Mrs C’s young daughter has health conditions which mean she needs extra support to access education. Her EHC Plan was issued in August 2022 and included 1:1 support at nursery, occupational therapy (OT), speech and language therapy (SALT) and physiotherapy (PT). In March 2023 Mrs C contacted the Council to say the nursery had stopped getting funding from the Council to provide the 1:1 support and D had not had any OT since the final EHC Plan was issued. She requested the Council pay for private provision and provided a quotation from a private company to provide the OT and SALT in the EHC Plan.
14. In April 2023 the Council said it was working with the nursery to organise the funding and would look into funding the therapies. Mrs C said she needed to find a PT provider. Mrs C made a formal complaint on 4 May 2023 as she had heard nothing further.
15. On 23 May 2023 the Council responded to her complaint, It said funding for a private OT was now in place and it would contact the NHS provider about equipment D needed. It said the funding for the nursery was in hand and SALT was booked to start shortly. It was trying to find a provider for the PT.
16. In late June 2023 Mrs C’s solicitor sent a pre-action protocol letter to the Council regarding the lack of provision of D’s EHC Plan. Mrs C also complained to us, but we referred her back to the Council to complete its complaints process first.
17. The Council reviewed D’s EHC Plan in early July 2023. It had a report from a clinical psychologist, an independent OT, PT and SALT. It agreed to update the EHC Plan. The Council responded to the legal letter. It said the nursery was at fault for not making the appropriate provision and it was an unsuitable placement It suggested Mrs C should request a review of the EHC Plan rather than take court action. It asked Mrs C to send invoices for the private SALT and PT and said it would consider a personal budget for D.
18. Mrs C’s solicitor replied asking for evidence of the funding to the nursery as Mrs C believed it was still not in place. They said Mrs C had already provided details of private PT providers and invoices of the private provision she had paid for. They also asked for their fees of £600 to be reimbursed.
19. Mrs C did not receive a further response, so on 4 August 2023 she escalated her complaint to stage two of the Council’s process. The Council responded to the provision issues in mid-September 2023 saying:
• It agreed to reimburse five OT sessions.
• It would not agree to reimburse the PT sessions as PT was, and continues to b,e in place for the majority of the time.
• It offered £1000 for D’s missed provision, £200 for Mrs C’s inconvenience, and £600 for the solicitor’s fees (total £1800).
20. The Council formally responded to her stage two complaint on 9 November 2023. It agreed the Council was at fault for failing to ensure the provision in D’s EHC Plan was in place. It recommended the Council:
• Carries out an immediate review to ensure all the provision was secured and any additional therapy provided to make up for the shortfalls.
• Settles all outstanding invoices to the nursery without delay and a robust process put in place for the future.
• Considers a personal budget for D.
• Reimburses the costs of the OT report Mrs C obtained to inform the EHC assessment.
• Continues discussions with Mrs C about suitable recompense and arranges a meeting with the service manager.
21. The Council also found fault with the complaints process and the responses, identifying delay and poor communication. It made the following recommendations to improve the Council’s processes by:
• reviewing commissioning arrangements to ensure that these meet timescales for needs assessments and provision of Speech and Language Therapy and/or Occupational Therapy, once an EHC plan is finalised;
• creating an action plan to demonstrate how West Northamptonshire Council will meet statutory timescales for provision and how this will be monitored;
• reviewing staff training to ensure they understand the legal framework and obligations in relation to the concerns found;
• reviewing and update the Local Offer to ensure it accurately reflects options in the local area; and
• reviewing effective communication required for the complaints process
22. The Council also referred Mrs C to us and she submitted a further complaint a few days later.
23. The Service Manager met with Mr and Mrs C on 8 December 2023. They agreed to reimburse the cost of the OT report and several equine OT sessions amounting to £953, in addition to another £1000 for missed provision (total £1953, making a running total of £3753). They did not agree to a personal budget for PT as they considered the PT sessions were being provided in accordance with D’s EHC Plan.
24. Mrs C disputed that the correct PT sessions had been provided. She said some had been missed, the sessions were not provided by a qualified physiotherapist and D did not have access to all the equipment she required. The Service Manager agreed to contact the NHS PT provider to explore this further.
25. The Council reviewed the EHC Plan in early February 2024 and agreed to increase the SALT and PT sessions.
26. In March 2024 the NHS PT manager replied to the Council saying that it had not sent a letter for the February appointment, so it was missed and it apologised for this. It tried to rearrange for early March but there was a clash with another therapy appointment. The later March appointment clashed with an OT session and the family were away in April. It did not consider any deterioration in walking could be due to the missed sessions and suggested Mrs C asked for a medical review. A PT session was arranged for 19 April 2024.
27. In response to my enquiries the Council said:
• There should have been twelve PT sessions of 30 minutes between August 2022 and August 2023. D received 8 but they were longer than 30 minutes.
• She should receive 12 sessions between August 2023 and August 2024. So far, she had received seven sessions all longer than 30 minutes.
• It said there had been difficulty rebooking missed appointments when D was not at nursery.
• Four of the sessions in 2023 were on a block basis with a Physiotherapy Technical Instructor within the PT team. They are not qualified practitioners but are able to work with patients following an assessment by a qualified therapist to make small progressions.
• Mrs C had also sourced and paid for her own private PT sessions along with reports.
• An amended EHCP was sent out on 3 May 2024 with increased SALT and PT sessions.
• It had agreed to a Personal Budget for Mrs C to pay for PT for D.
• It had reimbursed private PT costs of £3900 to Mrs C (final total £7653).
28. The Council also provided invoices it had received from the nursery from the end of June 2023.
29. Mrs C says D missed out on 1:1 support at nursery for almost a year. From September 2022 to June 2023 she received 11 hours of support via the high needs funding but it was not 1:1 and not for 31.5 hours a week. She said the Council constantly refused a personal budget, insisting the PT was in place but did not provide evidence to support this view. Mrs C says D was not referred for specialist equipment either.

Analysis

30. The Council failed to ensure the provision specified in D’s EHC Plan from August 2022 was put in place. This was fault which meant D was without the 1:1 support or any of the therapies specified in her EHC Plan in nursery for ten months (until the end of June 2023). The Council put the OT and SALT provision in place from June 2023, but disagreement over the PT provision continued. Mrs C has been paying privately to fill in the gaps left by the Council’s failings. This has caused Mrs C, in addition to financial hardship, distress, inconvenience and time and trouble in chasing the Council to fulfil its statutory duty over a prolonged period.
31. The Council failed to respond formally to Mrs C’s request for a Personal Budget to fund the PT, insisting from July 2023 to May 2024 that the PT provision was in accordance with the EHC Plan. It should have provided its decision in writing with reasons for refusing the Personal Budget and allowed Mrs C to request a review. I welcome the fact that the Council has now agreed a Personal Budget but it has taken too long and caused Mr C additional distress and inconvenience.
32. The Council also delayed for two months in producing an amended EHC Plan following the review on 2 February 2024 and delayed in responding to Mrs C’s complaints at both stages. This is also fault which has exacerbated the injustice to Mrs C and D.
33. I welcome the Council’s recognition of the fault and its attempt to provide a suitable remedy. It has agreed the following:
• £2000 for D’s loss of provision.
• £953 for OT sessions, reports and missed provision
• £3900 for PT sessions paid for by Mrs C
• £600 for solicitor’s fees and
• £200 for Mrs C’s inconvenience.
34. However there is no evidence that the Council reimbursed any SALT costs and based on our Guidance on Remedies I consider some of the payments should be higher.

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Agreed action

35. I recommended that within one month of the date of my final decision the Council:
• apologise to Mrs C in accordance with our guidance on making an effective apology;
• pay her an additional £500 for D’s loss of provision and an additional £300 for her time, trouble and inconvenience in chasing the Council for many months over these issues; and
• ask Mrs C to provide evidence of any SALT she paid for privately between August 2022 and June 2023 and reimburses those payments.
36. I also recommended within two months the Council provides an update on progress with the service recommendations set out in the stage two response to Mrs C of 9 November 2023 (see paragraph 21 above).
37. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman