Summary: The complainant alleged that the Council had failed to provide some of the support specified in his Education, Health and Care (EHC) Plan and, in particular, failed to carry out an Occupational Therapist’s assessment. The Council has accepted this. But we cannot assess the level of injustice or a suitable remedy until after the Special Educational Needs and Disability Tribunal has decided the complainant’s current appeal. We are therefore discontinuing our investigation.

The complaint

1. The complainant, who I refer to as Mr X, complained that:

1. that the Council has continued, since March 2020, to fail to provide the indirect Occupational Therapy (OT) support as required in his Education, Health and Care (EHC) Plan;
2. the Council told the Department of Education (DfE) that it had been looking for OTs unsuccessfully and had approached the National Health Service (NHS). But the Council already knew that Mr X did not meet the NHS criteria for a NHS OT;
3. the Council has not approached any OTs to devise a programme of indirect OT and to monitor it;
4. the Council provided nominal cost for the provision of indirect OT. The Council has explained that it did this while awaiting an OT to devise a programme and then it would provide the actual cost (by way of a personal budget). But these nominal costs have not enabled the complainant to find his own OT to devise a programme of indirect OT support;
5. at the Special Educational Needs and Disability (SEND) Tribunal of August 2020, the complainant says that the Council agreed, outside the Tribunal setting, to provide Mr X with music tuition with his tutor, but this has not happened;
6. that the Cognitive Behaviour Therapy (CBT) has not been delivered;
7. the Council delayed in issuing an amended final EHC Plan after the Tribunal Order of August 2020;
8. the Council has delayed in amending the EHC Plan after the annual review of October 2020. It told the complainant that it would amend this, but it did not explain in what way it would be amended. The final amended EHC Plan was not issued until March 2021 which has meant that the complainant has had to pay for art materials;
9. the Council told the complainant that he had to purchase the assistive software dragon which the College had recommended. The complainant considers that the Council should have funded this initially, but he accepts that the Council did subsequently refund the cost.
1. The complainant says that he has been put to avoidable distress, frustration and worry and the lack of indirect OT support means he has not been able to make full use of the education provided at the College. He has also had to pay for his art materials so he could complete his art assignments.

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What I have investigated

3. I have investigated matters between March 2020 to August 2021 although have referred to relevant events after this date.
4. Matters which I have not investigated are set out in the last paragraph of this statement.

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The Ombudsman’s role and powers

5. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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))
6. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
7. The Ombudsman can also consider complaints of a service failure. The Ombudsman’s view, based on caselaw (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407), is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved.
8. We may conclude that service failure has occurred, causing an injustice, in the absence of any specific fault in the council’s policy or procedure. This might be the case where there is an absence of key staff or the inability to recruit key staff or market forces prevent a statutory duty being delivered.
9. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. .
10. The Special Educational Needs and Disability (SEND) Tribunal deals with disputes about assessments and provision for special educational needs. The Ombudsman cannot consider a complaint when the complainant has pursued an alternative remedy, by appeal to the SEND Tribunal, where the matters are inextricably linked.
11. We can look at complaints about a council’s failure to provide the support set out in the EHC Plan, or where there have been delays in the process.
12. If we are satisfied with a council’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)
13. The Ombudsman’s final statement will be sent to the Office for Standards in Education, Children Services and Skills (Ofsted) in accordance with the arrangement the Ombudsman has to share findings with this organisation.

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How I considered this complaint

14. I made enquiries of the Council and I have spoken to Mr X and his representative.
15. The Council has considered the complaints under its two stage corporate complaints procedure.
16. We investigated a previous complaint (20 003 413) which, among other things, included a complaint about the lack of indirect OT between October 2018 to March 2020. This aspect of the complaint was upheld, and a remedy agreed for the resulting injustice.
17. I issued a draft decision statement to both the Council and to the complainant. I have taken into account their further comments before reaching my final decision.

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What I found

Legal and administrative

18. A child with special educational needs may have an Education, Health and Care Plan (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. Section F sets out the specified special educational provision required.
19. Where a council maintains an EHC Plan for a child or young person it must secure the specified special educational provision for the child or young person. (Section 42 (1 & 2) of the Children and Families Act 2014)

Annual reviews

20. Councils oversee delivery of EHC Plans through annual reviews, whether by attending meetings themselves, or by reviewing the school’s records of meetings. The Special Educational Needs and Disability Code of Practice January 2015 (the Code) says reviews must be undertaken in partnership with the child and their parent.
21. EHC Plans must be reviewed, as a minimum, every 12 months. The review must consider whether the stated outcomes and supporting targets in the Plan remain appropriate.
22. After the review, the council has four weeks to send the child’s parents its decision about whether the EHC Plan is to continue; whether it needs changing or if it is to end. If the council decides to amend the EHC Plan it must do that “without delay”.

Legislative changes due to Covid 19

23. On 1st May 2020, some aspects of the law on EHC needs assessments and plans changed temporarily due to the significant extra pressure put on local authorities because of Covid-19.
24. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give more flexibility to councils in dealing with EHC Plans and provision. It changed councils’ absolute duty to ‘secure’ the education provision in an EHC plan to one of using ‘reasonable endeavours’ to do so. This was a temporary change applying from 1 May to 31 July 2020. At the end of this period, councils’ usual duties to provide returned.

Background events

25. The Council issued an EHC Plan at the end of December 2017. The OT’s report of June 2016 referred to Mr X as being diagnosed with autistic spectrum condition (ASC) and functional behaviour delays.
26. The OT also noted Mr X has hypermobile joints (very flexible joints which causes pain), and sensory difficulties in his visual perception and auditory abilities with difficulties also in manual dexterity. The OT noted that Mr X required time to understand and process requests and in filtering out background noise. His parents noted that he had restricted patterns of behaviour and lacked a sense of danger.

The OT report of June 2018

27. There was a further OT report in June 2018 which was very detailed. It identified that Mr X’s motor integration skills were below average which led to, among other things, sloppy writing, poor organisation and poor posture. In relation to his fine motor skills, the OT stated:

“[Mr X] scored in the severe challenge range, scoring 1st percentile on the fine motor skills section. While [Mr X] can do the tasks, they take him a long time, and are effortful. This is directly related in parts to his reduced visual-motor integration skills, poor postural stability, reduced shoulder stability, hypermobility as well as poor manual dexterity skills”.

28. The report highlighted Mr X’s sensory difficulties and noted that he had ‘below average executive function’. The OT made recommendations for direct and indirect OT.
29. Indirect OT normally means special educational services which include progress reviews, cooperative planning, consultation and modification of environment, curriculum, materials or equipment.

Details of this complaint

30. Mr X attended the Council’s medical needs education hub since May 2018 because he was medically unfit to attend his mainstream school. Mr X remained at the medical hub by choice. He went down a year so that he could complete his General Certificate of Secondary Education (GCSEs).
31. In early 2020, Mr X’s parents withdrew Mr X from the hub because they were concerned for Mr X’s well being after an incident at the hub.
32. In late March, schools were closed, and, as from 1 May 2020, councils were expected to make reasonable endeavours’ to provide special educational need provision.
33. Mr X appealed the amended final EHC Plan issued by the Council in December 2019. The SEND Tribunal was postponed because of the impact of Covid-19.
34. Mr X asked for the CBT in his EHC Plan to be removed because he was worried that this might jeopardise entry to his preferred College of Further Education to study creative arts. The Council was unwilling to do this without having a medical assessment that this was appropriate.
35. Mr X took up a Music GCSE when at the medical hub. But he only had one year to complete a two years course. And, therefore, he did not receive a good grade. However, Mr X achieved sufficient GCSEs of the right grade in August 2020, and he gained entry to his preferred College to undertake a creative arts course.
36. Mr X told the Council that he wanted to pursue an online music course (learning the piano) explaining that this helped his anxiety and manual dexterity. On 5 August 2020, the Council wrote to him stating;

“it has been clarified by your mum that you would like to continue with our offer of online music tuition now that you have your internet sourced”.

37. On 7 August 2020, there was a SEND Tribunal hearing

7 August 2020 SEND Tribunal

38. There were three main issues which the August 2020 SEND Tribunal was able to consider:

“(a) how the OT provision [Mr X] required should be specified;

(b) whether [Mr X] required cognitive behavioural therapy (CBT); and

(c) whether [Mr X] required distance learning in relation to Music”

39. The SEND Tribunal concluded that the parties agreed broadly the level and content of the OT Mr X required as set out in the 2018 OT report. It was agreed that the relevant parts of Section F should be brought in line with the OT’s recommendations.
40. The SEND Tribunal ordered amendments to section F of Mr X’s EHC Plan.
41. Mr X says that, outside the Tribunal, the Council agreed to pay for his music online lessons, in accordance with its letter of 5 August, and which his parents were paying for. But Mr X says that the Council backtracked on this agreement after the Tribunal decided that online music tuition did not amount to a special educational need.
42. The Council says that Mr X said he was interested in studying music, but he decided to take up his College place to study art. The Council says that it did not agree to pay for his music lessons and the Tribunal did not order distance learning for music.

September to December 2020

43. Mr X started at College in September 2020 studying creative arts. His current course ends in August 2022. Mr X will then have the opportunity to apply for university, but he has decided to undertake a Music GCSE because he wishes to now pursue a career in music.
44. He has requested the Council name a previous school as his placement for September 2022 so he can gain a Music GCSE. This is a matter the forthcoming Tribunal will hear.
45. The Council had five weeks to amend the EHC Plan from the date of the Tribunal Order of 7 August 2020.
46. On 10 September the Council issued a final EHC Plan, amending section F to include twelve sessions of CBT, 47 hours of direct OT and for a programme to be devised by an OT to improve Mr X’s underlying motor skills, handwriting and fine motor skills; to improve core and postural stability and a daily sensory programme to help Mr X’s poor concentration, participation and socialisation in multi-sensory environments.
47. Mr X says that the Council said at the Tribunal it would provide the cost of indirect OT. The Council says that it thought Mr X was asking for a personal budget for the indirect OT (he receives a personal budget for his direct OT of £3,825 per year). The Council thought Mr X’s OT would be able to do an assessment for the provision of the indirect OT.
48. On 14 October, the Council wrote to Mr X’s representative with the nominal cost of providing indirect OT. The Council apologised for the delay.
49. Mr X told the Council that he wanted the Council to arrange and provide the indirect OT. The Council explained that there would need to be an assessment first by the OT before it could arrange a programme of indirect OT.
50. The Council says it made many efforts in March, July and December 2020 and March and July 2021 to source an OT to undertake an assessment. This involved approaching individual sole traders, four independent providers across the South East, a London based company and four locum agencies.
51. However, the Council says that one of the reasons it could not find an OT practice was because OT practices were unwilling to work with Mr X’s representative. The Council says that the representative had become known in the area for being difficult to work with, and this prevented OT practices wanting to work with the family.
52. In October there was an annual review of Mr X’s EHC Plan at the College. The Council asked Mr X’s consent to make a referral to the National Health Service (NHS) OT providers so to commission an OT assessment. After this review, the Council agreed to amend the EHC Plan and told Mr X this. But it did not explain how it would be amended.
53. Mr X agreed to the referral to the NHS OT providers in early December 2020.

January 2021 to February 2022

54. In February 2021, the Department of Education (DfE) issued a determination against the Council because of the representative’s complaint to it. The DfE determined that there had been a breach of s42 of the Children and Family Act 2014 because the Council had not provided the indirect OT as specified in section F of Mr X’s EHC Plan. The DfE wrote:

“in this case he [Secretary of State] will not be making an order declaring that you [the Council] are in default of s42 duty under the 2014 Act and will not be giving direction for the purpose of enforcing the performance of that duty. This is because he [Secretary of State] does not consider that doing so would put matters right or expedite the implementation of the OT provision”.

55. On 5 March 2021, at stage two of its complaint procedure, the Council accepted that there had been a failure to provide the indirect OT. It stated that the pandemic had created particular difficulties. It wrote:

“However, individual therapy was also described in your [Mr X’s] EHC plan as being subject to a programme devised by an OT and delivered by trained individuals under the direction of an OT”.

56. The Council explained that the referral to the NHS had been unsuccessful, stating the availability of NHS OTs may have been affected by Covid-19 as some OTs had been re-deployed to work in other area of the NHS.
57. The Council explained that it could only provide the nominal costs of the indirect OT. But the actual costs would be considered once an OT had completed an assessment and devised a programme of indirect OT provision. Mr X says that the Council then provided the actual costs and told him that it would be £295.00 per year, which he calculated worked out at £6.00 for 40 minutes per week. Mr X did not consider he could employ an OT at that rate.
58. The Council says that Mr X is entitled to 12 sessions of CBT. But he did not want to return to the Child and Adolescent Mental Health Service (CAMHS) and he did not want the College to provide this. Mr X has confirmed that this is the case.
59. In March 2021, the Council issued an amendment notice following the October 2020 annual review. It then had eight weeks to issue a final amended EHC Plan..
60. Mr X says that there was no amendment notice but the Council said it wanted to do a reassessment of Mr X’s OT needs. The Council issued a final EHC Plan on 10 March 2021: Mr X’s representative says that there were no amendments made. This EHC Plan is now subject of the Tribunal appeal due to be heard later this month.
61. Mr X says that there has been a discussion between his College and the Council about responsibility of the cost of his art materials which are required for his course. Mr X says that he has spent around £650 which he considers the Council should pay.
62. In October 2021, the Council told the Ombudsman that Mr X was among a cohort of 65 children and young people awaiting an OT assessment where the Council cannot source OT engagement. The Council says that the impact of a national shortage of OTs is a ‘fragile relationship’ between the Council and therapy providers.
63. In December 2021 Mr X, with the help of an SEN organisation, sent a pre-action protocol letter (under the judicial review procedures) to the Council concerning the non-provision of indirect OT. Mr X has not proceeded with the judicial review. Had he done so, we would have discontinued our investigation.
64. In February 2022, Mr X’s representative found an OT to carry out an assessment and told the Council this assessment would go ahead in the absence of the Council arranging one. The assessment has now been completed. The representative is now asking for reimbursement of the cost of this assessment.
65. I have seen a copy of this assessment. It sets out clearly Mr X’s difficulties and describes in detail the impact on Mr X’s learning as a result. The OT states that Mr X has “significant challenges in his sensory modulation, sensory motor and fine gross motor skills that impact on his ability to participate successfully”

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Findings

Complaints (a), (b) and (c); failures in providing the indirect OT support

66. These three complaints are inter-related.
67. It is very clear that there has been a failure to arrange an OT assessment for the purpose of devising indirect OT provision for Mr X. This, in turn, has meant that Mr X has not received any indirect OT.
68. The DfE has also confirmed that there has been a breach of the Council’s statutory duty to make provision in Mr X’s EHC Plan.
69. The Council has explained that this failure has arisen for a number of reasons: shortage of OTs, impact of Covid-19, the redeployment of NHS OTs, and a general reluctance among the OT practices approached to work with Mr X’s representative. The Council also says that there is a cohort of young people as in October 2021 who are also waiting for OT engagement.
70. It is an accepted fact that Covid-19 will have affected councils’ ability to provide services. There was also a relaxation of the rules between May and July 2020. The fact that there are other young people waiting for OT assessments implies that there might be a service failure here and the Council is struggling to provide a service because of external factors.
71. In this complaint, the failure to provide has been prolonged. It is likely that some of the external factors might explain this. But I am mindful that Mr X’s representative managed recently to arrange an OT assessment directly and this may call into question the reasons the Council has provided for its failure to do so.
72. The Council has been at fault here and it has accepted this. It has failed to arrange an OT assessment for the purposes of devising a programme of indirect OT as required by Mr X’s EHC Plan.

Complaint (d): nominal costs; Complaint (e): failure to pay for music lessons

73. I am reaching no findings on these two complaints at this stage.

Complaint (f): failure to provide the CBT

74. The Council offered to refer Mr X to CAMHS or to ask his College to provide these sessions. It seems Mr X was ambivalent about having these sessions and declined both offers.
75. I consider the Council made efforts to arrange this and therefore my view is that there is no fault by the Council.

Complaint (g): delay in issuing the final amended EHC Plan after the August 2020 SEND Tribunal

76. Mr X has accepted that there was no delay and this has been confirmed by the DfE. Therefore, I find no fault.

Complaint (h): delay after the annual review of October 2020

77. I am making no finding on this complaint at this stage.

Complaint (i): failure to pay for assistive software

78. I understand that this complaint has been resolved. So, I make no finding.

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What injustice been caused?

79. There is a SEND Tribunal to be heard next month which will determine Mr X’s placement for September 2022 and the matter of the indirect OT and other matters. Once I know the Tribunal decision, I will consider the outstanding complaints and the level of injustice caused to Mr X by the accepted fault (delay in arranging an OT assessment).

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Final decision

80. I cannot complete this investigation until the outcome of the Tribunal is known. Mr X can refer the complaint back to the Ombudsman at this stage.

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Parts of the complaint that I did not investigate

81. I have not investigated any complaint about the Council’s comments relating to Mr X’s representative’s alleged unreasonable behaviour or the restrictions placed on the family’s communication with the Council. These are matters which Mr X’s representative is pursing separately.
82. I have not looked at the Council’s actions since September 2021 or that the Council did not hold an annual review in October 2021.
83. I am not looking at Mr X’s representative’s request for reimbursement of the cost of the recent OT assessment. This is a new complaint which the Council should consider first.

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Investigator's decision on behalf of the Ombudsman