Summary: Mr B complained about the financial remedy offered for the delay in ensuring the therapies in his daughter C’s Education, Health and Care Plan were provided. We found fault causing injustice. The Council has agreed to increase its remedy to include the delay in obtaining the specialist chair and the delay in responding to the stage three complaint.

The complaint

1. Mr B complained that Hampshire County Council (the Council) failed to offer a suitable financial remedy for the delay of approximately four months in ensuring the therapies in section F of his daughter C’s Education, Health and Care (EHC) plan were provided after the final plan was issued in March 2022. It also delayed in responding to the formal complaint at stage three of its complaints process. This meant C missed out on essential therapies to aid her transition to a new placement and did not have a specialist chair to support her posture for two months. Mr B was also caused frustration and distress by the delays.

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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. 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. 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

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
5. 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

Special educational needs

6. A child with special educational needs may have an 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.
7. 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.
8. A Council should comply with a Tribunal decision within five weeks.

Complaints process

9. The Council has a three stage complaints process. It says it aims to respond to complaints within 20 working days (four weeks)

What happened

10. Mr B’s daughter C has an EHC plan. In June 2021 Mr B appealed to the First-tier Tribunal about the content of the EHC plan including therapy provision and the named placement. The first hearing was held in November 2021 but was adjourned due to time issues and a working version of the EHC plan was issued. The second hearing was heard in February 2022 and the Tribunal issued a decision requiring amendments to the EHC plan and naming the Council’s preferred school.
11. The Council issued an EHC plan following the Tribunal order which included the following therapy provision:
• six sessions of speech and language therapy (SALT) to be delivered within an educational context;
• regular direct Occupational Therapy (OT) sessions. School staff should be provided with an OT programme and regular training by an OT; and
• a block of direct physiotherapy every term, weekly for six weeks, delivered within an educational setting.
12. The EHC plan also specified a specially designed classroom chair to support her in class.
13. Mr B appealed to the Upper-tier Tribunal in March 2022 about the content of the EHC plan and the named placement. He did not appeal the therapy provision.
14. The Council sent referrals to seven OT providers and four SALT providers but without success. In June 2022 the Council agreed to commission C’s private physiotherapist to deliver the PT provision in the EHC plan. The Council also delayed in ordering a new chair for C and it was not provided until 1 June 2022.
15. By September 2022 all the provision was in place. Mr B’s solicitor made a formal complaint about the delay in securing the therapy provision in accordance with C’s EHC plan. They requested a financial remedy in excess of £10,000 for the missed provision, legal and other costs incurred by Mr B.
16. The Council responded to the complaint in October 2022 offering a remedy of almost £1500 to cover the physiotherapy costs. It did not offer any financial remedy for the other therapies but asked the therapy providers to identify ways to make up for the delayed provision and provide a catch-up schedule. It said the SALT had provided details of additional weekly group sessions.
17. Mr B’s solicitor escalated the complaint in November 2022 as they remained dissatisfied with the Council’s response.
18. On 16 November 2022 the Upper-tier Tribunal ordered the case go back to the First-tier Tribunal for reconsideration,
19. The Council agreed to escalate the complaint to stage three but there was a delay due of a shortage of investigating officers. The Council responded in February 2023. It agreed the delay in finding therapist was service failure. It apologised and increased its offer of a financial remedy to £2,000:
• four months missed SALT provision @£250 per month; and
• four months missed OT provision @£250 per month.
20. Following a hearing in April 2023, the First-tier Tribunal issued an order on 11 May 2023 requiring amendments to the EHC plan and naming Mr B’s preferred school.

Analysis

21. The EHC plan specifying the therapy provision in a school setting was issued on 23 March 2022, within five weeks of the Tribunal order (16 February 2022). The Council should have put the therapies provision in place from this date. Despite an extensive search for providers, the Council did not put the SALT or OT in place until September 2022. This was fault which meant C missed out on four months of provision.
22. In respect of the physiotherapy, the Council agreed to pay for the private physiotherapy which was in place from May to July 2022. As the EHC plan only specifies a six week block of weekly sessions, I consider this was provided in accordance with C’s EHC plan.
23. The Council should have provided the specialist chair by 23 March 2022. It did not do so until 1 June 2022, a delay of 10 weeks. This was fault which meant C did not have the right chair at school to develop her muscle strength and allow more symmetrical movement.
24. The Council delayed in responding to Mr B’s stage three complaint: it should have responded by 13 December 2022 but it did not do so until 21 February 2023 due to a shortage of investigating officers. This nine-week delay caused frustration and inconvenience to Mr B.

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Agreed remedy

25. I consider the Council’s offer of £2,000 for the missed SALT and OT provision is reasonable and in line with our Guidance on Remedies.
26. In addition to this I recommended the Council, within one month of the date of my final decision, should pay Mr B:
• £250 for benefit of C, for the injustice arising from the delay in obtaining the specialist chair; and
• £150 for the for the injustice arising from the delay in responding to the stage three complaint.
27. The Council has agreed to these recommendations and should provide evidence it has complied with them.

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Final decision

28. I consider this is a proportionate way of putting right the injustice caused to Mr B and C and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman