Summary: Miss X complained the Council failed to provide Occupational Therapy (OT) provision in line with her son, F’s, Education, Health and Care (EHC) Plan between December 2021 and May 2022. The Council failed to deliver F’s OT provision during this period which was fault. It agreed to pay Miss X £1000 to recognise the impact the loss of OT provision had on F. It also agreed to refund her the cost of the private OT assessment she commissioned during the EHC assessment process and carry out service improvements.

The complaint

1. Miss X complained the Council failed to provide Occupational therapy (OT) in line with her son, F’s, Education, Health and Care (EHC) Plan between December 2021 and May 2022. She also complained the Council did not carry out an OT assessment during the EHC assessment which meant she had to commission a private one at her own cost.
2. Miss X says the loss of F’s OT provision impacted on his education and caused her distress, uncertainty and time and trouble.

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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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. It also handles appeals against discrimination by schools or councils due to a child's disability. We refer to it as the SEND Tribunal in this decision statement.
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

8. I spoke to Miss X about her complaint and considered information she provided.
9. I considered the Council’s response to my enquiry letter.
10. Miss X and the Council had an opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Education, Health and Care (EHC) Plans

11. Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what they can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
12. Councils are responsible for making sure all the arrangements set out in in the EHC Plan are put in place.
13. The Council has a legal duty to ensure the educational and social care support set out in a final EHC Plan is delivered. This duty is non-delegable.

Completing EHC assessments

14. The statutory timescales for completing an EHC assessment and issuing a final EHC Plan is 20 weeks from the request for an assessment. The SEN and Disability (SEND) Regulations 2014 state that a council must obtain information and advice from such persons as reasonably requested by the child’s parent. This advice should be provided within six weeks of the request.
15. A common scenario is where advice is required from a health professional (for example an OT assessment) and the child is on a waiting list. This means the advice will not be available to inform the EHC Plan. Councils do have the power to obtain private assessments and reports if they consider they could not write an EHC Plan without this evidence. They can also ask other professionals to cover the issue in their reports.
16. In October 2019 we issued a focus report titled ‘Not going to plan? – Education, Health and Care Plans two years on’. Within this we said "We expect councils, as the lead agency in the EHC process, to have appropriate commissioning and partnership arrangements in place to allow SEND officers to obtain advice for EHC Plans in a timely way, and to have mechanisms to address problems that arise"

The SEND Tribunal

17. Certain SEN decisions have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
18. Some of the decisions which are appealable and usually out of our jurisdiction include:
• A council’s refusal to carry out an EHC assessment or refusal to reassess.
• A council’s refusal to issue an EHC Plan.
• the suitability of the provision specified in section F of the EHC Plan.

What happened

19. Miss X has a child, F who has special educational needs (SEN) and learning difficulties.
20. The Council’s SEN panel agreed to carry out an EHC assessment for F in June 2021. Records show F’s school had referred him to the NHS for an Occupational Therapy (OT) assessment in July 2021. As F was unknown to OT services at the time, he was placed on a waiting list for an assessment. The Council told Miss X that it agreed an OT assessment was required. However, the current waiting list for assessment meant it would not receive the advice within the 20-week timescale. It said it intended to finalise the plan without OT advice but would consider whether to include OT provision at F’s next annual review, after he had received the OT assessment. Miss x was unhappy with this and so, in July 2021 decided to commission a private OT assessment at her own cost. The Council used this assessment and included OT provisions in F’s final EHC Plan.
21. The Council issued F’s final EHC Plan in December 2021. Section F of the final EHC Plan outlined that F was entitled to 12 x 45-minute OT sessions per term and a sensory activity programme all delivered by a qualified OT.
22. Records show however that the Council was unable to source an OT to deliver F’s provision. Miss X said she provided the Council with details of a private OT however the Council said it could not use them because they were not on its approved list.
23. In February 2022 Miss X complained to the Council. She complained that it had failed to recruit an OT which meant F had not received the OT provision in line with his plan since it was issued in December 2021.
24. The Council responded to Miss X in March 2022. It apologised for the delay in commissioning an OT to deliver F’s provision. It said it hoped to provide a solution by way of a personal budget so Miss X could use her own private OT.
25. Unhappy with the Council’s response, Miss X escalated her complaint to stage 2 questioning how long it would take to either put the personal budget in place or find an OT.
26. The Council issued Miss X with its final response in May 2022. It said a lack of OTs in the whole of London made it difficult to recruit, which was something it was unable to resolve. It said the personal budget was approved in April 2022.
27. Records show the Council made its first personal budget payment to Miss X in mid-May 2022 which enabled F to begin receiving the provision he was entitled to.
28. Miss X remained unhappy and complained to us about the lack of OT provision between December 2021 and May 2022. Although it did not form part of her complaint to the Council, Miss X further complained that she had to commission her own private OT assessment for F during the Council’s EHC assessment.

The Council’s response to us

29. The Council acknowledged it was unable to commission an OT to support F and deliver his provision in line with his EHC Plan. It apologised for any inconvenience and distress this caused.
30. With regards to the OT assessment, the Council said F’s school had made an OT referral to various agencies but each service, including the NHS had a long waiting list. The Council said the NHS OT service would not provide assessment advice for an EHC Plan until a child had been seen, following the wait. They will respond ’not known to our service’ unless the child is or has been assessed and put on their case load. F was still awaiting assessment at the time the EHC assessment was undertaken and finalised.

My findings

31. Information and referrals from F’s school make it clear that advice from an OT was a reasonable request and needed to write F’s EHC Plan in relation to his needs, outcomes and provision.
32. I accept that NHS services sometimes have long waiting lists. However, the regulations are clear that councils should seek and receive professional advice within 6 weeks. As the lead agency in the EHC assessment process we would expect councils to have appropriate commissioning and partnership arrangements in place to enable it to obtain the necessary advice within the 6-week timeframe.
33. When it became clear the Council would not receive the advice from the NHS within the 20-week timescale, the Council should have considered at the time whether to commission a private assessment or seek external advice. Not doing so was fault. As a result, Miss X had to commission a private OT assessment at her own cost and the Council used the assessment to form the OT provision in the final plan. Had the Council taken further steps to seek OT advice during the EHC assessment process this may not have been necessary.
34. The Council has a legal duty to ensure provision in line with section F is secured and provided and reasonable endeavours is not a defence for failing to do so. The Council accepts it failed to ensure F received OT provision in line with his plan between December 2021 and May 2022. It has already apologised for the inconvenience and distress this caused. However, in line with our guidance on remedies I have made further recommendations below to acknowledge the impact the loss of provision had on F and for the uncertainty and time and trouble caused to Miss X.

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Agreed action

35. Within one month of the final decision the Council agreed to:
• Pay Miss X £1000 to recognise F’s loss of OT provision between December 2021 and May 2022 and the impact that had on him. Miss X should use the money for F’s benefit as she sees fit.
• Refund Miss X the cost of the private OT assessment she commissioned during the EHC assessment process after it failed to seek its own OT advice for F when it became clear the NHS would not respond in time.
• Remind relevant staff that where NHS OT advice is sought during the EHC assessment process and that advice is delayed, to consider obtaining advice from private OTs or asking other professionals to cover the issue in their reports.
• Consider whether to review its partnership and commissioning arrangements with health bodies to ensure advice requested as part of the EHC assessment is received within 6 weeks of the advice request.

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Final decision

36. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault and improve its services.

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Investigator's decision on behalf of the Ombudsman