Hertfordshire County Council (22 005 273)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 03 Jan 2023

The Ombudsman's final decision:

Summary: Ms X complains the Council did not put in place occupational therapy provision for her child. The Council was at fault for failing to put in place the occupational therapy provision specified in the child’s Education Health and Care plan. This caused injustice as the child did not receive the provision they were entitled to and Ms X spent a significant time pursuing this with the Council. The Council agreed to our recommendations to remedy the injustice caused.

The complaint

  1. Ms X complains the Council did not put in place occupational therapy provision for her son when he started secondary school in September 2021.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. As part of this investigation, I considered the information provided by Ms X and the Council. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council for comments.
  2. 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

  1. A child with special educational needs 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 education, or name a different school. Only the tribunal can do this.
  2. 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.
  3. 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)

The Council’s complaints policy

  1. The Council operates a two stage complaints process. At stage one the Council has 20 working days to respond to a complaint. At stage two the Council has 25 days to respond to a complaint.

What happened

  1. There has been extensive correspondence between Ms X, the Council and occupational therapy providers since September 2021. In this section of the statement, I summarise key events but I do not refer to every single contact and communication.
  2. In late July 2021, the Council issued a final EHC plan for Ms X’s son, Y. The EHC plan specified that Y was to receive occupational therapy provision.
  3. In September 2021, Y started at a secondary school. At this time the Council had not sourced the occupational therapy provision for Y. Ms X contacted the Council about the lack of occupational provision and the Council asked Provider A to provide occupational therapy to Y.
  4. On 27 September 2021, the Council told Ms X it had commissioned Provider A to deliver the occupational therapy to Y. The Council said Provider A would discuss this with Y’s school to put this in place.
  5. In early October 2021, Ms X continued to contact the Council as she had not heard when Provider A would provide occupational therapy. Ms X suggested to the Council it contact Provider B to provide the occupational therapy.
  6. On 4 October 2021, Provider B emailed the Council and Ms X to confirm it could assist with the occupational therapy provision.
  7. On 18 November 2021, the Council contacted Provider A as the occupational therapy provision was not in place for Y. After further communication with the Council, Provider A confirmed on 23 November 2021, it could not deliver the occupational therapy provision to Y as it could not deliver provision on the day Y needed.
  8. Between 25 November 2021 and 17 December 2021, the Council was in contact with Provider B about the occupational therapy provision. The Council was in discussions with Provider B about how it would invoice for the provision.
  9. In early March 2022, Ms X sent the Council a pre-action letter as Y had not received his occupational therapy. On 7 March 2022, the Council contacted Provider C as Provider B had not provided the Council with the correct documentation.
  10. On 24 March 2022, the Council responded to Ms X’s pre-action letter. The Council offered Ms X compensation of £50 per hour of lost occupational therapy. The Council said this worked out at £1,100.
  11. Provider C started providing the occupational therapy to Y in late April 2022.

Ms X’s complaint

  1. On 18 November 2021, Ms X made a formal complaint to the Council as Y was not getting the occupational therapy provision listed in his EHC plan.
  2. The Council responded at stage one of its complaints process on 24 December 2021. The Council said Provider A could not deliver the occupational therapy provision because of the availability of the occupational therapist on the day Ms X wanted the provision. The Council said it had asked Provider B to deliver the occupational therapy to Y but there was a dispute with Provider B about invoicing. The Council said it did not know occupational therapy was not being delivered and was trying to resolve this.
  3. On 31 December 2021, Ms X asked the Council to consider her complaint at stage two. Ms X said:
    • The communication between the Council and occupational therapy providers had been poor and caused delays to putting in place occupational therapy for Y.
    • Y had lost three months of occupational therapy. Ms X said she had experienced stress, uncertainty and time and trouble in bringing this complaint and was concerned about the effect of the lack of occupational therapy on Y.
  4. The Council provided its final response to Ms X on 29 March 2022. The Council said it was not aware of the delay in providing occupational therapy until Ms X reported this. The Council said it then started to work with occupational therapy providers but became involved in a dispute about invoicing. The Council said it accepted this caused a delay in providing the occupational therapy provision to Y.
  5. Ms X remained dissatisfied and complained to the Ombudsman.

Analysis

  1. The Council was at fault for failing to put in place occupational therapy provision for Y until April 2022. Initially when Y started secondary school in September 2021, he should have been receiving this provision. The evidence showed the Council had not arranged this provision for him.
  2. When Ms X contacted the Council in September 2021 to report this, the Council did take steps to source the provision, however there were still delays. Firstly, it did not receive confirmation from Provider A until 23 November 2021, that it could not deliver the provision. Secondly, there was a significant delay between the Council being in dispute with Provider B about invoices and then contacting Provider C to arrange the provision.
  3. The delay in putting in place occupational therapy has resulted in Y missing out on this provision for the first two terms of his secondary education. In addition, Ms X has suffered injustice. Ms X spent time pursuing the Council to put in place occupational therapy provision for Y and eventually sought legal advice as Y had not received occupational therapy provision for two terms.
  4. While I acknowledge the Council has offered Ms X a remedy in the form of payment for the lost hours of occupational therapy, I do not consider this goes far enough. When considering a payment to reflect the injustice caused for the lost provision the Ombudsman’s guidance on remedies recommends between £200 and £600 per month. On balance, I consider the remedy here should be at the lower end of the scale. This is because Y remained in school throughout the relevant time. However, I have also considered that Y was in a critical part of his education as he had just started secondary school.
  5. The Council was also at fault for delays in handling Ms X’s complaint. At stage one the Council took 26 working days to respond to Ms X’s complaint. At stage two the Council took 61 working days to respond to Ms X’s complaint which was a significant delay. As a result, it took Ms X a considerable time to progress her complaint with the Council and obtain a final response.

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Agreed action

  1. Within one month of my final decision, the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
      1. Apologise to Ms X for the delays in putting in place occupational therapy provision for Y and for the delays in complaint handling.
      2. Pay Ms X £1,750 for the benefit of Y’s education and to reflect the lost occupational therapy provision. I have calculated this at £250 per month between September 2021 and April 2022, excluding the school holidays.
      3. Pay Ms X £200 for the distress, time and trouble she experienced as a result of Y not receiving his provision and for having to pursue this complaint.
  2. Within three months of my final decision, the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
      1. Consider what went wrong in this case and what procedures the Council can put in place to ensure a child’s section F provision is arranged in a timely way. The Council should report its findings back to the Ombudsman.
      2. Consider why it took so long to provide Ms X a stage two complaint response in this case and identify what steps the Council will take to improve complaint handling.
  3. The Council should provide us with evidence it has complied with the above actions.

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Final decision

  1. I have completed my investigation and found the Council was at fault for failing to put in place the occupational therapy provision specified in Y’s EHC plan. This caused injustice as Y did not receive the provision he was entitled to and Ms X spent a significant time pursuing this with the Council. The Council agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman

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