Summary: the Council has been unable to find an Occupational Therapist to deliver provision in C’s Education, Health and Care Plan. This is fault since the Council has an absolute and non-delegable duty to arrange the provision. While the Council’s search continues, I have made recommendations to address the injustice this causes.

The complaint

1. Mrs M complains the Council has not arranged the occupational therapy in her son’s Education, Health and Care (EHC) Plan. She is unhappy with the Council’s response to her complaint.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. I have considered:
• information provided by Mrs M;
• information provided by the Council.
5. I invited Mrs M and the Council to comment on my draft decision.

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What I found

6. Mrs M’s son, C, has an Education, Health and Care Plan maintained by the Council. The Council issued his latest Plan on 13 January 2021. The Plan says C will receive one hour of occupational therapy per week from an occupational therapist trained in sensory integration therapy for twelve weeks.
7. Mrs M complained to the Council on 11 May 2021. She said the occupational therapy had not been provided. She said C had not received any occupational therapy for two years, as it was not provided by his previous school either.
8. The Council responded on 4 June 2021. The Council said it had been unable to find a local occupational therapist to deliver the sessions because of the pandemic. Now that restrictions had eased, it had asked eight occupational therapists whether they could provide a service and was waiting for responses. The Council said it would commission a full assessment, the 12 one-hour sessions in C’s EHC Plan and any additional provision recommended by the assessment.
9. Mrs M remained dissatisfied and asked the Council to respond at the second stage of its complaints process.
10. A senior council officer responded on 12 October 2021. He apologised for the delay and said the SEN team was working hard to identify a suitable occupational therapist. He offered a payment of £200 in recognition of the delays and the inconvenience caused.
11. Mrs M remained dissatisfied and complained to the Ombudsman on 27 October 2021. She was unhappy the Council had still not made arrangements for C’s occupational therapy.

Education, Health and Care Plans: the law

12. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
13. Once the Council has issued a Plan, it must secure the special educational provision specified in the Plan for the child or young person. (Children and Families Act 2014, section 42)
14. This is an absolute and non-delegable duty. There is no "best endeavours" defence if the Council is unable to secure the provision. (R (on the application of N) v North Tyneside Borough Council [2010] EWCA Civ 135)
15. Between 1 May 2020 and 31 July 2020, emergency Coronavirus legislation meant there was only a “reasonable endeavours” duty on the Council to secure provision. However, that does not affect Mrs M’s complaint.

The Council’s response to my enquiries

16. The Council responded to my enquiries on 18 January 2022. It explained that it had still not been able to find an Occupational Therapist to deliver the provision in C’s EHC Plan.
17. The Council provided evidence it had consulted a number of independent Occupational Therapists around the County, but none was able to provide therapy for C. The therapists had long waiting lists (because of the impact of the pandemic on their ability to provide face-to-face services), and those in further parts of the County were not willing to travel. The Council’s search continues.
18. The Council also accepts there were difficulties at C’s previous school which meant he missed out on OT while he was a pupil there too. The Council accepts C requires the occupational therapy in his plan, and its failure to secure the provision will have an impact on him.
19. I asked further questions about the arrangements in the County for delivering Occupational Therapy, and what the Council was doing to tackle any problems.
20. The Council said it maintains 6,000 Education, Health and Care Plans. It was unable to say how many of the plans required OT.
21. The Council does not employ any Occupational Therapists.
22. The Council said the NHS provides OT services to children who attend special schools. It could not say how many children this was.
23. The Council said the national shortage of Occupational Therapists (and Speech and Language Therapists) is a problem. The Council said it was:
• working with the NHS to audit demand for OT services;
• improving commissioning arrangements, for example ‘block booking’ private OTs; and
• contacting other councils to learn lessons from their experience.
24. The Council said it had commissioned an independent review of its Special Educational Needs and Disability Service in June 2021 from another County Council. The review made recommendations and the Council has produced an action plan. Details are published on the Council’s website. The review was considered by the Council’s Education and Children’s Services Scrutiny Committee at a meeting on 9 December 2021.
25. The Council said it was currently trying to arrange occupational therapy for 16 children.

Consideration

26. The Council’s failure to secure the Occupational Therapy required by C’s EHC Plan is fault.
27. C has not received the OT he needs to meet his special educational needs. This is an injustice. He has been without OT for 14 months since the Council issued his current EHC Plan. His need for OT, and the injustice he has suffered from the Council’s failure to arrange it, is greater since there were problems at his previous school and the Council did not secure the OT he needed then either.
28. In addition, Mrs M has found her dealings with the Council frustrating and time-consuming.

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Agreed action

29. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Ms M and C, we may recommend the Council makes a symbolic payment.
30. I recommended the Council:
1. apologises to Mrs M for its continuing failure to secure the occupational therapy C requires and the frustration this has caused;
2. does everything it can to secure the occupational therapy C needs without further delay and ensures it keeps Mrs M informed;
3. liaises with Mrs M to consider whether there are any alternative activities the Council could fund as an interim measure until it has arranged the OT; and
4. makes a symbolic payment of £100 per month for each month C is without the occupational therapy in his EHC Plan.
31. The Council accepted my recommendations.
32. The national shortage of Occupational Therapists clearly makes it more difficult for the Council to fulfil its legal obligations. Nevertheless, the independent review commissioned by the Council identified problems and recommended improvements. As the Council has an action plan and is reporting to the Scrutiny Committee, I have not made any further recommendations.

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Final decision

33. I have completed my investigation as the Council accepts my recommendations.

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Investigator's decision on behalf of the Ombudsman