Summary: Mrs X complained Y had not received the physiotherapy support set out in his Education, Health and Care plan since March 2023. This risks Y’s physical deterioration. The Council was at fault. It should apologise, make a payment to remedy the injustice caused and take action to address the situation.

The complaint

1. Mrs X complained her son, Y, had not received the physiotherapy in his Education Health and Care (EHC) plan since March 2023. As a result, not only has he missed out on physiotherapy support, but the exercises carried out at school and at home have not been updated, which means they may no longer be appropriate. Mrs X says the failures risk Y’s physical deterioration and the loss of the benefit of major surgery.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. 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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
4. 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

5. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
6. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

7. A child with special educational needs (SEN) 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 special educational needs and provision, or name a different school. Only the Tribunal can do this.
8. 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.
9. The Council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. 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)

Direct payments

10. Parents and carers of a disabled child can ask for a direct payment (DP), which is a payment that allows them to arrange support for their child. Where a DP is to arrange support in section F of an EHC plan, the details of the payment should be included in the plan.

Complaints handling

11. The Council’s complaint policy says it will acknowledge the complaint within three working days and provide a full reply within 20 working days. It also says if a complaint raises complex issues that could not be answered within 20 working days, it will keep the complainant informed of progress until it can fully respond.

What happened

12. Mrs X’s son, Y, has complex learning difficulties and medical conditions. He has an Education, Health and Care (EHC) plan and attends a special school. The support in section F of his EHC plan includes direct one-to-one physiotherapy for one hour every two weeks during term time. It also includes updating Y’s physiotherapy and postural care programme every other term, so Y’s school and parents know how best to support him.
13. When the physiotherapist the Council commissioned to provide the physiotherapy went on long-term leave, the Council was able to provide some interim cover, although Ms X reported some gaps in the provision. However, in March 2023, the physiotherapist said they would not be able to support Y when they returned to work in April. The Council said this was partly due to Y approaching adulthood, which meant the physiotherapist did not consider they were physically able to support him. Y has not received any physiotherapy since March 2023 because the Council has not been able to identify a new therapist either through the NHS or privately.
14. Mrs X made a formal complaint in early August, but the Council has not yet been able to respond due to a backlog of complaints. Mrs X also told me she had been asking for updates since March 2023 but not getting responses.
15. In response to my enquiries, the Council said it:
• had contacted all known independent physiotherapy providers in early May 2023 but was not able to identify a provider to support Y;
• had reviewed Y’s case in the summer break in 2023 and planned to approach providers again before the start of the new term. However, due to staffing shortages, it failed to do so;
• will review Y’s case again in January 2024 and will again approach all possible providers;
• recommended a further assessment should be obtained through the NHS. This would need to be considered by its SEN complex case panel and discussed with Mrs X to ensure the purpose of the assessment was properly defined. In the meantime, practitioners within its adult learning difficulties team could be asked to help identify Y’s current needs to assist in his transition to adult services;
• was carrying out a commissioning review with the NHS and its partners to consider how to address gaps in therapy services where support is specified in EHC plans; and
• apologised for the delay in responding to Mrs X’s complaint.

My findings

16. The Council accepts Y has not had the physiotherapy support set out in section F of his EHC plan since March 2023. In May 2023, it took appropriate steps to identify a provider but was not able to do so. This was service failure.
17. In the summer it carried out a review but failed to approach possible providers. This was fault.
18. The failure to consider earlier whether other action, such as a further NHS assessment or whether its adult learning difficulties team could assist in assessing Y’s needs whilst waiting for a private physiotherapist to be identified, was further fault.
19. It also failed to respond to Mrs X’s complaint within the timescales set out in its complaints policy, which was fault. On balance, it also failed to respond to requests from Mrs X for updates.

Injustice caused by the failings identified

20. Mrs X told me that the failure to provide physiotherapy means the benefit of major surgery may be lost and Y may lose some of the independence he had worked hard to achieve. The lack of a physiotherapist also means no-one is checking the exercises carried out at school and at home are still appropriate. She said Y is non-verbal and cannot say when he is in pain.

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Agreed action

21. Within one month of the date of the final decision, the Council will:
• apologise to Mrs X for the injustice caused by the failings identified;
• pay Mrs X £200 for her avoidable time and trouble pursuing the Council; and
• pay Mrs X, for the benefit of Y, £3,000 to remedy the injustice caused by the failure to provide physiotherapy set out in his EHC plan. This is calculated on the basis of £1,000 per term for 3 terms. The Council should continue to pay £1,050 per term until physiotherapy is in place, which was calculated on the basis of £900 for missed physiotherapy & £150 for input into Y’s physiotherapy and postural care programme.
22. Within two months of the date of the final decision, the Council will:
1. ensure its adult learning difficulties team carries out an assessment of Y’s needs and identifies what support it can provide to Mrs X and Y’s school about how to meet those needs whilst they wait for a physiotherapist to be identified;
2. complete its review of Y’s case (which it began in January 2024) and approach all possible physiotherapy providers to see if it can identify a provider for Y;
3. discuss with Mrs X and its complex needs panel the proposed NHS assessment and, if agreed, request the assessment; and
4. update us on its commissioning review. It should send us a further update six months after the date of the final decision.
23. The Council has agreed our recommendations to improve its complaints handling on another case, so no further recommendations are needed.
24. The Council will provide us with evidence it has complied with the above actions.

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Final decision

25. I have completed my investigation. I found fault causing personal injustice. I recommended action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman