Summary: Miss X complains the Council failed to provide provision for her son Y, causing frustration and distress. We find fault with the Council for delay, and agree with the remedy it has put forward in its complaint response.

The complaint

1. Miss X says the First-tier (Special Educational Needs and Disability) Tribunal ordered the Council to carry out a physiotherapy assessment in July 2023. Miss X complains the Council did not do the assessment until January 2024, with provision received by her son in March.
2. This caused Miss X frustration and uncertainty. She would like an apology from the Council and payment for the missed provision.

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The Ombudsman’s role and powers

3. 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)
4. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. 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

7. I spoke with Mrs X and considered the information she provided.
8. I considered relevant law and guidance, as set out below and our guidance on remedies, published on our website.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Education, Health and Care Plan

10. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.

Appeal right

11. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.

Council’s complaints procedure

12. The Council has a two stage complaints procedure:
• Stage one – a response from an appropriate officer within four weeks.
• Stage two – a response from a manager within five weeks.

What happened

13. Miss X has a son Y who is Autistic and has physical and learning difficulties. He has an EHC Plan.
14. Y’s EHC Plan was subject to an appeal with the SEND Tribunal which took place in July 2023. The Tribunal ordered amendments to the EHC Plan including getting a full assessment for Y by a physiotherapist, offering support for an adapted PE programme and advice on any movement breaks Y may need, along with 1:1 sessions for Y.
15. Miss X complained to the Council in November as Y had not had his physiotherapy assessment. The Council did not respond until January 2024 and Miss X was unhappy with the response so she made a stage two complaint in February.
16. The stage two response from the Council in March partially upheld the complaint as no physiotherapy provision had been arranged for Y, as the previous officer had left the service. The Council said the communication from the SEND team had not been “to the expected level of standard”.
17. It went on to say the physiotherapy assessment had taken place on 12 December, and the report dated 22 January was enclosed with the complaint response. It said the provision will start from 4 March.
18. The Council offered a payment of £200 for the delayed physiotherapy and £100 for the distress caused. It explained the Council has invested £5million to improve delivery of SEND services.
19. Miss X responded to the Council in March, explaining she was not happy with the Council’s response. It did not acknowledge its late response to her complaint or address the delay in providing Y his provision. She also brought her complaint to the Ombudsman.
20. The Council responded in June saying the following:
• It apologised for the late response and that Miss X remained dissatisfied;
• The EHC Plan was issued in August which was within five weeks of the Tribunal order. The final amended EHC Plan is dated June 2024 so Y has not had suitable outcomes or provision to meet his physical needs;
• Miss X requested an annual review on 7 August and chased on 21 August. She got no response from the SEND team so she made a complaint in November.
• The annual review took place on 5 February 2024. There were further delays and the final EHC Plan was issued on 10 June.
• The Council apologised for the delay which frustrated Miss X’s right of appeal and offered £400 as a remedy. It also offered £400 for the missed physiotherapy sessions, giving a total of £900 including the distress payment.
21. Miss X responded to the Council on the same day saying the calculation for the missed provision was incorrect, and she did not agree with the amount offered.
22. The Council responded five days later correcting the payments to £500 for missed physiotherapy, £200 for two terms of missed indirect physiotherapy, and a distress payment totalling £1200.

Analysis

23. There was delay with the Council’s response to Miss X’s complaint which should have been given within four weeks (see paragraph 12) but was nearly double that. This caused Miss X frustration and time and trouble of chasing a response.
24. There was delay in providing the physiotherapy provision to Y after the Tribunal order in July 2023. The provision was not provided until March 2024. This is fault by the Council causing distress to Miss X and missed opportunity to Y.
25. There was also delay with the annual review which was requested in August and did not take place until February, and delay with finalising the EHC Plan after the annual review, delaying Miss X’s right of Appeal causing frustration and distress. This is fault by the Council.
26. The Council failed to respond to Miss X after her request for the annual review, and it has acknowledged its communication has not been up to the standard expected. As there is continuing training to staff regrading communication I have not made a service improvement recommendation as we will check this through our complaints.
27. Having regard to our Guidance on Remedies, I agree with the final remedy put forward by the Council of £1200.
28. I am aware we have made service improvements to this Council on several similar cases recently, and there has been an investment by the Council to improve delivery of SEND services. It is clear the Council is experiencing issues which the Ombudsman has addressed. I am satisfied the service improvements agreed on the other complaints also address the issues from this complaint, and the Ombudsman will continue to follow up with the Council on any previously agreed service improvements.

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Agreed action

29. Within one month of the final decision the Council should:
• Send a written apology to Miss X for the distress and frustration caused by the faults identified above. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Miss X £1200 for the missed provision, distress, frustration and loss of opportunity to Y.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I find fault with the Council for delay in complaint response, and delay in providing provision to Y. I agree with the remedy put forward by the Council for the frustration and distress caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman