The Ombudsman's final decision
Summary: The complainant said that the Council had failed to provide him with indirect Occupational Therapy as required under his Education, Health and Care (EHC) Plan and had failed to pay for his music lessons, as initially agreed. The Council has resolved the complaints about the complainant’s indirect Occupational Therapy, and we are satisfied with the Council’s decisions. We have found some fault regarding the music lessons. The Council has agreed with the recommended way to remedy the injustice caused by this. We have therefore completed our investigation and are closing the complaint.
The complaint
The complainant, who I refer to as Mr X, is making his complaint to the Ombudsman with the support of his representative. Mr X has had an Education, Health and Care (EHC) Plan for many years.
We discontinued a previous investigation (20 011 100) into the Council’s delays in completing an annual review of Mr X’s EHC Plan because the outcome of a Special Educational Needs and Disability (SEND) Tribunal was pending, and it was not possible to assess the injustice from the faults identified until the Tribunal decision was known. However, this Tribunal hearing has been delayed and is unlikely to be heard soon. Therefore, the Council agreed to look at some outstanding complaints to see if they could be resolved without waiting for the Tribunal decision.
These complaints are as follows: the Council was unwilling to meet the cost of Mr X’s indirect Occupational Therapy (OT) which was agreed should be included in Mr X’s Education, Health and Care (EHC) Plan of 2018; the Council was unwilling to backdate the indirect OT therapy payment from 2018 to the present day; the Council was unwilling to meet the cost of Mr X’s OT assessment report, which his parents recently commissioned, because the Council was unable to find an OT to undertake this assessment, which had been ordered by the recent Tribunal; and the Council’s alleged agreement to pay for Mr X’s music (piano) lessons. Mr X said that the Council had agreed to this but some seven months later retracted this agreement.
Mr X says that he has been caused avoidable distress, time and trouble and he has not received the indirect OT required as set out in his amended 2018 EHC Plan.
What I have investigated I have investigated the above complaints. Matters, which I have not investigated, are set out in the last paragraph of this draft statement. Mainly, they are complaints where the current Tribunal decision is required to fully assess the injustice.
The Ombudsman’s role and powers
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)) 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)) The 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. But 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.
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) 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.
How I considered this complaint
I made enquiries of the Council and I have spoken to Mr X and his representative on the telephone. I sent a draft decision statement to the Council and to Mr X and have taken into account their comments when reaching my final decision.
What I found
Legal and administrative 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.
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 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.
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.
Background events The Council issued an EHC Plan at the end of December 2017, to replace Mr X’s previous Statement of Special Educational Needs. Mr X was diagnosed with autistic spectrum condition (ASC) and functional behaviour delays.
Mr X also 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. It was 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 Mr X’s parents appealed the final December 2017 EHC Plan. As part of the Tribunal hearing, there was a detailed OT report. 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”.
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. (Indirect OT normally means special educational services which include progress reviews, cooperative planning, consultation and modification of environment, curriculum, materials or equipment). The OT recommended indirect OT, which included participation in programmes designed to help Mr X with his postural stability, visual and motor skills.
Mr X attended the Council’s medical needs education hub from May 2018 because he was medically unfit to attend his mainstream school. The Council issued a final amended EHC Plan in October 2018, including direct and indirect OT provision. Section F of Mr X’s October 2018 EHC Plan broadly stated the following; fortnightly programme to support motor skills; daily sensory diet to improve focus and attention (sensory diet involves a range of activities to help a pupil cope with sensory difficulties); social skills teaching in a group setting.
We have already found in a previous complaint investigation (20 003 413) that it is likely this provision was not provided at the medical hub.
Mr X took up a Music GCSE when at the medical hub. But he only had one year to complete a two year course. And, therefore, he did not receive the required grade. 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. Enquiries have been made with the tutoring agency and your music tutor {B} can continue to work with you via online tutoring: this has been confirmed as an option still open to you. Please let us know as soon as possible so that we can confirm this with the tutoring agency”.
On 5 August 2020, there was a Tribunal hearing. The Tribunal concluded that the parties agreed broadly the level and content of the OT which Mr X required as set out in the 2018 OT report (both direct and indirect OT). It was agreed that the relevant parts of Mr X’s EHC Plan at Section F should be brought in line with the OT’s recommendations. At this stage, the Council was planning to provide the indirect OT through a personal budget, as it did with the direct OT. But agreement could not be reached between Mr X and the Council on this.
Mr X says the Council agreed to pay for his music online lessons, in accordance with its letter of 5 August, lessons which his parents were paying for. But Mr X says that the Council backtracked on this agreement when the August Tribunal decided that online music tuition did not amount to a special educational need. Mr X’s representative says she did not realise this offer was no longer on offer until the Council refused to reimburse her the cost at the end of March 2021. She then made a complaint to the Council.
Mr X’s representative also said that, as part of her carers’ assessment, the Council’s social care agreed to provide direct payments for Mr X’s activities, like music, but was then wrongly told these lessons were being paid for under Mr X’s EHC Plan. So, Mr X says that social care declined to provide direct payments. Mr X’s representative has a separate complaint to the Ombudsman about this social care assessment. This complaint seems to cover the period from January 2021 in respect of possible direct payments for Mr X’s music tuition.
The Council says that Mr X said he was interested in studying music, but he decided to take up his College place to study a two year art course. The Council says that it did not agree to pay for his music lessons and the Tribunal did not order distance learning for music.
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”.
In March 2021, the Council accepted that it had not provided the indirect OT as required but cited many mitigating factors to explain why. In 2022, following an Ombudsman recommendation, the Council and Mr X’s representative agreed to mediation to try to resolve some outstanding complaints. I understand that this mediation is continuing.
Current situation Mr X started a creative arts course at College in September 2020, successfully completing this in July 2022. Mr X could at this point have applied for a university place. But he decided that he wanted to pursue a music career and, out of his savings, he bought himself a piano. However, to pursue a career in music, he required a music GCSE first. The Council has now agreed for Mr X to study a music GCSE at his previous school, and this is now his named placement in his EHC Plan to July 2023. Mr X says that the piano lessons, which his parents paid for, means that he can now complete the GCSE in one year, rather than the normal two years.
Findings-Complaints (a) (b) and (c) The Council has accepted that it was fault not to provide the indirect OT provision. The Council says that there are some mitigating circumstances, but it now acknowledges that it should remedy the injustice caused by its previous failure.
Therefore, the Council has agreed to fund the future indirect OT at a cost of £1,138.00 per year, consisting of fifteen minutes indirect OT per day, plus two hours weekly. The Council has also agreed to backdate the cost of the indirect OT from October 2018 to the present day.
The Council has also agreed to pay £1,195.00 for the OT report, requested by the current Tribunal, which Mr X’s parents paid for.
To their credit, the Council, Mr X and his representative have reached an agreement without the Ombudsman’s direct involvement and my view is that this remedies injustice from the Council’s faults. Because of this agreement, I have not provided details of the prolonged run up to this point.
Complaint (d)-failure to reimburse music lessons as agreed The Council offered online music tuition on 5 August 2020 although, at this stage, there was no firm financial offer. After the August 2020 Tribunal concluded that online music was not considered a special educational need, the Council did not pursue the previous offer of online music tuition, although Mr X’s representative says that she was not aware of this at the time. Equally, Mr X’s representative proceeded to pay for lessons without knowing exactly what the Council was willing to pay per hour.
The offer of 5 August of online tuition was exactly that: an offer. It was not a firm financial agreement, and the Council had the discretion to change its mind when the Tribunal stated online music was not required in Section F of Mr X’s EHC Plan. However, it seems to me that the Council raised Mr X’s expectations and did not tell him, soon after the August 2020 Tribunal hearing, that it was withdrawing its offer. It also seems that the Council was aware of Mr X’s changing and developing views about his future career and that he wanted to keep open the option of pursuing music as a career choice. It is not unusual for young people approaching adulthood to want to keep their future career options open, if possible, or to be uncertain of what they wish to do as a career. And, therefore, their stated outcomes in their EHC Plans may well change.
On that basis, my view is the Council has been at fault in that it raised Mr X’s expectations that it would pay the online music tuition and it did not tell him promptly that it would not. The injustice is that Mr X’s representative has paid for the music lessons believing the Council would meet these. My view is that this covers the time period of September to December 2020 (three school months). From January 2021, the issue of music lessons forms part of Mr X’s representative’s complaint about social care.
To remedy the injustice, I consider that I should not recommend reimbursement of music lessons because there was no agreed financial arrangement. Instead, I have recommended that the Council makes a symbolic payment of £350.00 to recognise that it raised expectations and delayed in withdrawing the offer formally. This has caused avoidable distress and time and trouble.
The Council has agreed to this.
Agreed action
The Council will, within one month of the date of this final statement: make a symbolic payment of £350 to Mr X to recognize the avoidable distress caused by raising expectations of online music tuition, and for his time and trouble in pursuing the complaint; and pay all the agreed payments as set out in paragraphs 30 and 31.
Final decision
There has been fault causing injustice. The Council has resolved most of the complaints and agreed the recommended action on one outstanding matter. I have therefore completed my investigation and am closing the complaint.
Parts of the complaint that I did not investigate I have not investigated Mr X’s complaint about the provision of the direct OT because this is a matter awaiting the Tribunal decision. Integral to this complaint is also Mr X’s complaint about the sufficiency of the personal budget, which he receives, for the direct OT provision.
Investigator's decision on behalf of the Ombudsman