Summary: Mrs D complains on behalf of her son (Child A) who has special educational needs. She says the Council has failed to provide Child A with his needed occupational therapy in accordance with his Education and Health Care Plan. The Council has fully accepted fault in this respect, as well for failings made during its complaint handling process. We consider Child A and Mrs D have suffered an injustice as a result of the failings identified. The Council has agreed to our recommendations to remedy this.

The complaint

1. The complainant, who I refer to as Mrs D, is making a complaint in her relation to her son (Child A) who has special educational needs (SEN). She says the Council has failed to provide her son occupational therapy (OT) in accordance with his Education and Health Care Plan (EHCP) which is maintained by the Council.
2. In summary, Mrs D says the lack of OT provision is creating anxiety and uncertainty for Child A and the family. She adds that Child A cannot do a full day at school due to the lack of support by the Council and this means she is unable to leave home during school hours. As a desired outcome, Mrs D want the Council to provide the OT provision Child A is entitled to receive.

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The Ombudsman’s role and powers

3. 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).

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How I considered this complaint

4. I read Mrs D’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation. I invited both Mrs D and the Council to comment on a draft of my decision. All comments received were considered before a final decision was made.

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My findings

Background and legislative framework

Education and Health Care Plan

5. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
6. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
7. When an EHCP is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
8. Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
9. The First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.

Personal budget and direct payments

10. A special educational needs (SEN) personal budget is an amount of money identified by the local authority to deliver provision set out in an EHC Plan. The Council can identify elements of the provision which can be made via a direct payment. Councils must ensure that children and young people with EHC Plans receive a level of support which will help them “achieve the best possible educational and other outcomes”.

Chronology of events

11. In December 2020, the Council issued a final EHCP for Child A following a decision by the SEND Tribunal that Child A required OT to support his SEN. This provision was therefore incorporated into the EHCP which meant the Council was under a legal duty to secure the provision.
12. In May 2021, the Council believed it had secured an agreement for Child A to receive OT support. However, it found out from Mrs D in November 2021 that this provision had not commenced. The OT service later confirmed to the Council it had no capacity to provide OT therapy for Child A.
13. In November 2021, the Council responded to Mrs D under its formal complaints policy and procedure. It accepted there had been an issue in securing Child A with agreed OT support and that this was due to problems with its providers. Further, the Council explained it has been unable to find a therapist with the required availability and skillset to support Child A. The Council upheld Mrs D’s complaint and apologised. However, the Council provided no detail as to when it would expect to secure OT support for Child A going forward.
14. In December 2021, Mrs D escalated her complaint to the final stage of the Council’s formal complaints policy and procedure as she remained dissatisfied.
15. In February 2022, the Council issued its final response to Mrs D. The Council apologised that it had delayed in securing the OT provision for Child A, but stated this was due to oversubscription for the service. The Council said organising the OT support was outside of its control. To date, the Council has still not made arrangements for Child A to access OT intervention.

My assessment

16. In accordance with Child A’s EHCP, the Council is under a legal duty to provide him with support from a registered OT. The wording in the EHCP is as follows:

“Weekly 1:1 intervention with an HCPC registered Occupational Therapist for 18 consecutive weeks (18 hours) for the first term and a half, to help Child A to develop his self-regulation. This will be followed by 3 half-termly reviews for the remaining term and a half to ensure strategies are being used and continue to work (6 hours – 2 hours per review to meet with Child A and key staff and update any programmes).”

“The treating Occupational Therapist will carry out a formal review of Child A’s needs prior to the annual review (1.5 hours), provide a report to inform the annual review process (2 hours) and attend the review meeting.”

17. In response to my formal enquiries, the Council has unreservedly accepted fault for not providing Child A with OT support in accordance with his EHCP. It has also accepted fault with respect to its complaint handling. In particular, the Council has acknowledged that it was wrong to only partially uphold Mrs D’s complaint at stage two of its complaint’s procedure. This is because the Council’s final response to Mrs D stated that the failure to not provide OT was outside of its control. Further, the Council said it was unaware Child A’s OT had not commenced in May 2021, as scheduled, when it was made aware by Mrs D.
18. The Council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 of the Children and Families Act 2014). 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). The Council therefore cannot seek to limit responsibility by stating these matters are outside of its control. This has been fully acknowledged by the Council.

Summary of fault and injustice

19. I have identified the following fault:
1. The Council has failed to provide Child A with his needed OT support since December 2020 in accordance with his EHCP.
2. The Council’s stage two complaint response was unsatisfactory and failed to demonstrate good administrative practice.
20. I am grateful to the Council for promptly acknowledging fault in response to this investigation. However, it is disappointing that despite this acknowledgement, the Council is yet to arrange for Child to receive his needed OT provision. I consider the failure to provide Child A with OT support has caused him a serious injustice. The purpose of OT intervention is to support Child A with his SEN and offer him the same opportunities as his peers to succeed. Specifically, Child A’s EHCP sets out development goals he should achieve as a result of OT intervention. This includes him learning to cope with sensory overload associated with his autism and developing coping strategies. The EHCP states Child A should achieve most of those goals by the end of Key Stage 3. Child A is nearing the end of Key Stage 4 absent the OT support being made available. I consider therefore he has been denied the opportunity to develop at the appropriate milestones identified.
21. The support is also necessary in order to effectively integrate Child A within the school environment. For instance, Mrs D has explained that Child A cannot do a full day at school due his stress and anxiety which she says has also negatively impacted the wider family. The Council’s failure to adequately deal with the complaint has added to the distress and uncertainty of Child A and his family. In response to this investigation, the Council has offered £300 to acknowledge the injustice suffered by Child A and Mrs D. However, I do not consider this proposed remedy is proportionate to the injustice suffered. As I said, the central failing has undermined Child A’s educational development. I am therefore making a number of recommendations for the Council to remedy the fault identified.

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Agreed action

22. To remedy the fault and injustice identified in this statement, the Council has agreed to perform the following actions by 1 September 2022:
1. Provide Mrs D a written apology which acknowledges the fault and injustice identified in this statement.
2. Pay Mrs D £800 to acknowledge the harm to Child A’s educational development caused by the serious delay with providing him OT support.
3. Pay Mrs D £300 to acknowledge the distress and uncertainty she and her wider family has suffered as a result of the failings identified. The Council will also pay Mrs D £100 to serve as an acknowledgement of the time and trouble Mrs D has gone to in pursuing her complaint.
23. The Council has also agreed to perform the following by 1 November 2022:
1. The Council will also make arrangements for Child A to receive his OT provision in accordance with his EHCP. The Council will confirm dates and availability with Mrs D in advance.
2. Where compliance with (a) (above) is not possible due to the Council’s preferred OT service being oversubscribed, it will make arrangements with a different provider. Alternatively, if Mrs D is happy to receive a direct payment to make the arrangements herself, the Council should consider doing so.

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Final decision

24. The Council has fully accepted fault for not providing Child A with OT in accordance with his EHCP. It also acknowledged failings during its complaints process. I consider Child A and Mrs D have suffered an injustice as a result of the failings identified. The Council has agreed to remedy this.

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Investigator's decision on behalf of the Ombudsman