Summary: Mrs X complained the Council failed to provide the occupational therapy and speech and language therapy agreed in her son’s Education Health and Care (EHC)plan. She also complained the Council had not refunded her travel costs she has incurred. We found fault by the Council. The Council has agreed to provide an additional payment to fully address the injustice caused to her and Y.

The complaint

1. The complainant, who I shall call Mrs X, complained the Council failed to provide the occupational therapy (OT) and speech and language therapy (SALT) agreed in her son, Y’s, Education Health and Care (EHC) plan. This has left Y without the support he needs which has negatively impacted his development.
2. Mrs X also complained the Council has not refunded travel costs she has incurred when taking Y to his OT and that it used an Educational Psychologist not registered with the Health Care Professional Council (HCPC) to assess Y’s needs for his EHC plan.

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What I have and have not investigated

3. I have investigated Mrs X’s concerns about the Council’s failure to provide the OT and SALT agreed in Y’s EHC plan and the Council’s failure to make timely reimbursement of travel costs she incurred for accompanying Y for his OT provision.
4. I have not investigated Mrs Y’s concerns the Council used an Educational Psychologist not registered with the HCPC. This is because the HCPC is currently investigating this matter. I consider that we cannot look at this matter until the outcome of the HCPC investigation is known and the Council has had the opportunity to respond to Mrs X’s complaint about this matter.

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The Ombudsman’s role and powers

5. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is another body better placed to consider this complaint,

(Local Government Act 1974, section 24A(6))

6. 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)
7. 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.
8. 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

9. I discussed the complaint with Mrs X and considered information she provided.
10. I made enquires of the Council and considered its response and the documents it provided.
11. I had regard to the relevant legislation and our guidance on remedies.
12. I set out my initial thoughts on the complaint in a draft decision statement and invited comments from Mrs X and the Council.

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What I found

13. 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.
14. 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.
15. 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)

What happened

16. I have set out a summary below of the key events. It is not meant to show everything that happened.
17. Mrs X’s son, Y, has complex needs. He has a diagnosis of Autism and development delay with particular difficulties with speech and language, social interaction skills, sensory processing issues, hypermobility and oppositional behaviour.
18. The Council issued Y with a EHC Plan. Mrs X appealed to the SEND Tribunal about sections of the plan.
19. In late September 2021 the Council began to provide Y with 1 hour per week of direct input SALT to compensate for provision he missed in the previous academic year.
20. On 4 October 2021 the Tribunal issued its decision. Following the decision, the Council issued an amended EHC plan.
21. Y’s EHC plan says he requires the following educational provision from an OT:

• A proactive and reactive plan for short movement breaks/motivators to minimize withdrawal from the classroom.
• Modification to the school environment and advice on small equipment aids and strategies to be embedded into Y’s daily routine.
• An individualized and progressive program providing explicit teaching and structured activities to develop independence and life skills.
• Six sessions of direct OT intervention delivered at Y’s school using evidence-based therapy to provide opportunities for Y to learn how to self-regulate his sensory needs. This will include strategies and techniques to reduce Y’s tactile defensiveness and help engage him in functional tasks. It will include 45 minutes therapy and 15 minutes liaison with teaching staff.
• 12 sessions of handwriting intervention including 45 minutes of therapy by an experienced OT using a cognitive behaviour and kinaesthetic approach.
• Six visits per year by the OT to review Y’s goals and outcomes to provide updated guidance, recommendations and training to educational staff. Each visit should last 90 minutes and include therapy and liaison with Y’s educational professionals.
• Handwriting practice three times a week for 15 minutes. The OT will work with Y’s parents and teaching staff to plan and review how to meet Y’s OT needs.
• The OT will contribute to the annual review process including a review of OT targets and outcomes.

22. Y’s EHC plan says he also requires a personalised SALT devised by a qualified SALT therapist in liaison with Y’s parents and teaching staff. The SALT therapist will deliver:

• Social communication twice a week focusing on turn taking skills, interaction with peers, opportunities for repetition and reinforcement, to be reviewed termly.
• 3 sessions (one per term) for SALT with Y’s parents to ensure consistency in communication between home and school regarding strategies and interventions being used.
• 6 session (2 per term) of SALT with a qualified SALT therapist for target review, target setting and modelling of intervention.
• 3 sessions (1 per term) for multi profession liaison.
• 2 sessions (per academic year) to fully assess Y’s needs and complete the annual review.
• 1 session per academic year to attend Y’s annual review.

23. On 4 November 2021 Mrs X asked the Council if it had arranged the OT provision set out in Y’s EHC plan. She told it she had found an OT who could meet Y’s needs and could start immediately.
24. In response the Council contacted Y’s school to see if it could arrange Y’s required OT provision.
25. On 24 November 2021 the Council wrote to Mrs X and explained it was trying to arrange the OT provision via Y’s school. It asked for the details of the OT mentioned by Mrs X in her earlier email. Mrs X told the Council the OT no longer had availability.
26. On 25 November 2021 the Council sought to arrange the OT provision via the local health service.
27. On 11 January 2022 Mrs X complained to the Council because it was failing to meet its legal duty to provide Y with the OT and SALT provision in his EHC plan.
28. On 31 January 2022 the Council replied. It said it had tried to arrange provision with Y’s school and health service but was unsuccessful. It said it was in the process of securing OT provision through another provider and hoped to do this as soon as possible. It upheld this part of Mrs X’s complaint.
29. The response said Y’s SALT provision was in place therefore this part of Mrs X’s complaint was not upheld. It said it would contact the SALT therapist providing Y’s extra SALT provision to make sure therapy took place for the current term. It said it would update Mrs X on its progress by 22 February.
30. On 8 March 2022 the Council told Mrs X that it had secured OT provision via a private company at their offices.
31. Mrs Y told the Council Y’s Teaching Assistant would not be able to travel to the OT provider’s office, but she would be able to do so instead. She asked the Council to refund her the associated travel costs. The Council agreed to do so.
32. On 29 March 2022 Y’s first OT session took place.
33. On 7 April 2022 the private provider registered with the Council so that payment for Y’s provision could be made to them.
34. However, the Council did not pay the private OT provider and Y only received one session.
35. On 4 May 2022 Ms X escalated her complaint to the second stage of the Council’s complaints procedure as Y was not receiving the OT or SALT provision set out in his EHC plan. She said this was because the Council was yet to pay the private OT provider despite the provider registering with it. She also explained Y’s SALT provision was not being met because the Council had not paid the private provider.
36. The Council appointed an independent investigator to consider Mrs X’s complaint.
37. On 26 September 2022 the independent investigator issued a report detailing the findings of his investigation. His report said:

• No OT sessions were offered after 29 March 2022, except for one 30-minute parent call on the 31 March 2022.
• The OT provider did not receive a purchase order from the Council until 16 June 2022
• The OT provider offered to provided sessions after receiving the purchase order, including catch up sessions, but Mrs X said she would prefer Y’s sessions to start in September 2022.
• The payment system used by the Council’s to pay contractors does not work properly and this was to blame for the problems paying the OT provider.

For the above reasons the report upheld Mrs X’s complaint about OT provision.

38. The report found that SALT provision for Y was in place from 16 September 2021. It says the SALT provider was reluctant to use the Council’s payment system and this was the cause of subsequent payment problems. The Council said it was told on 22 April 2022 that Y’s sessions were paused due to lack of payment, and it rectified the situation that week. It said the SALT provider had further problems using the payment system and Y’s session were paused again on 31 May. It said the provider was able to submit invoices on 20 June and Y’s sessions were in place again.
39. For the above reasons the report upheld Mrs X complaint about SALT provision as it was evident session were paused because of payment difficulties in May.
40. The Council accepted the findings of the report, and it wrote to Mrs X upholding her complaint. It apologised and said the payment issues were being addressed. It recognised that Mrs X and Y had been caused frustration and anxiety. It offered a payment in recognition of £300 to Mrs X for the time and trouble caused to her and £1200 for Y’s missed provision. It also said it would take account of the impact of Y’s lost OT provision when conducting his annual review in March 2023.
41. Mrs X remained unhappy and approached the Ombudsman for help. Mrs X said the Council should offer a higher financial remedy in recognition of the impact of the missed provision on Y. She also said the Council had not paid her transport costs for taking Y to his OT sessions and it had not responded to her complaints that an Educational Psychologist used by the Council to assess Y’s needs for his EHC plan was not registered with the HCPC.
42. We made enquiries of the Council. In its response the Council said:

• A misunderstanding between staff had delayed payment of Mrs X’s travel costs for accompanying Y to his OT sessions. It had contacted Mrs Y to arrange payment.
• It had regard to the Ombudsman Guidance on Remedies when proposing a payment of £1200 for Y’s missed provision. It said that accounting for school holidays Y had missed six months of OT sessions and one month of SALT provision. As Y was receiving a full time education it considers a payment at the lower end of our guidance was appropriate. It said a payment of £200 per month was adequate.
• It considered Mrs X’s complaint was known to them for a long time and that she had been caused time and trouble in pursuing the complaint. For this reason, it offered the Ombudsman’s maximum suggested payment of £300.
• It is restructuring its services to better manage payments to service providers. This will help it better oversee any problems with its payment systems.
• The HCPC are investigating concerns the about the education psychologist used to assess Y is not registered. The investigation is ongoing, and the Council is awaiting the outcome before considering this matter further.

43. During my investigation Mrs X contacted told us that Y’s OT sessions stopped after the Easter break because of problems paying the provider. The sessions have not resumed. Mrs X says Y’s behaviour has deteriorated since the sessions stopped.

Finding

44. The Council has a duty to provide the SALT provision set out in Y’s EHC plan. Y missed one month of provision because of problems paying the SALT provider. This is fault by the Council.
45. The Council also has a duty to provide the OT provision set out in Y’s EHC plan. It did not provide Y with OT provision from October 2021 until September 2022. This is a period of 11 months. However, after deducting the school holidays, it is a period of seven and half months.
46. I recognise that for the period October 2021 to January 2022 it was seeking to source provision via Y’s school and the local health service. While I accept the Council was making efforts to secure Y’s provision during this time it remains that Y did not receive any OT provision in this period.
47. I also note Mrs X told the Council about an OT provider she had found with availability in November 2021. The Council did not request details of the OT provider for a several weeks by which time the OT provider no longer had availability. If the Council had done so sooner Y may have found a provider prior to March 2022.
48. Issues with paying the provider were resolved in June 2022 however Mrs X choose not to resume with Y’s OT provision until the start of the new academic term. I recognise this was Mrs X’s choice however it seems a reasonable position for her to take given the importance of Y having regular OT provision and the imminent start of the extended summer break. Mrs X would not have chosen to delay the start of the OT provision until the new term had the Council resolved the payment problems more expediently.
49. I note that despite the Council’s assurances that problems with payment systems were resolved, Y’s OT provision has recently stopped again because payment to the OT provider has not been made. Y has not had OT provision for a further two months, accounting for school holidays.
50. As explained at paragraph 15, Y requires OT provision to meet multiple needs as identified in his EHC plan. I therefore consider the delays in providing this between October 2021 and September 2022 have adversely impacted Y’s educational progress and behaviours.
51. The Council offered Mrs X £1200 for the loss of Y’s OT provision. While this is welcomed, I do not consider this suitability addresses the injustice caused to Y. This is because Y missed a whole academic year of provision, which is significant.
52. Furthermore, Y’s EHC plan also explains the importance of OT provision in helping reduce incidences of classroom withdrawal, in developing life skills and independence and to help him regulate his sensory needs. I consider the missed OT provision has therefore impacted his wider education and development.
53. I am concerned that Y is currently without OT provision because of payment issues.
54. The Council offered payment of £300 for the frustration and time and trouble caused to Mrs X in pursuing her complaint. I do not consider this amount fully addresses the injustice caused to her. This is because Mrs X has also had to pursue reimbursement of her travel expenses and she is again having to pursue payment for her son’s OT provision.

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Agreed action

55. Within one month of my final decision the Council will:

• Pay an additional £200 to Mrs X in recognition of the frustration caused to her in pursuing reimbursement of her travel expenses and payment for Y’s OT provision since April 2023
• Pay £300 per month to Y for failing to provide the provision set out in his EHC Plan. The Council has already offered £200 per month for six months. I calculate there was seven and half months of missed provision and so, with the additional £100 per month that I propose, it should increase its payment by an extra £1050.
• It should also make a further payment of £300 in recognition of the OT provision he has missed since April 2023 and take action to resolve the problem paying Y’s OT provider.

56. Within three months of my decision the Council should investigate the persistent problems it is having in paying providers and set out in detail the steps it is taking to achieve a permeant resolution.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have ended my investigation as the Council has agreed to remedy the injustice by the identified fault.

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Investigator's decision on behalf of the Ombudsman