Summary: Miss C complained the Council failed to provide her daughter with the occupational therapy and speech and language therapy outlined in her Education, Health and Care plan. We find the Council was at fault as it delayed securing the provision. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Miss C complained the Council failed to provide her daughter, D, with the occupational therapy (OT) and speech and language therapy (SALT) outlined in her Education, Health and Care (EHC) plan after the SEND Tribunal’s decision.
2. Miss C says the matter has caused distress and upset. She says D is in pain and is struggling with her mental health because of the Council’s failures.

Back to top

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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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)

Back to top

How I considered this complaint

8. I considered information from Miss C. I made written enquiries of the Council and considered information it sent in response.
9. Miss C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and statutory guidance

10. A child with special educational needs may have an Education, Health and Care (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 special educational provision needed by the child or young person.
11. The Children and Families Act 2014 says local authorities are responsible for making sure that arrangements specified in EHC plans are put in place and reviewed each year. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.

What happened

12. Miss C’s daughter, D, has special educational needs and an EHC plan.
13. Miss C appealed to the SEND Tribunal about D’s EHC plan. The judge issued an order which said the Council had to amend D’s EHC plan to include OT and SALT provision. The Council issued D’s EHC plan on 23 August 2021 which set out the provision.
14. D started college in September. The Council failed to secure SALT or OT.
15. Miss C sent a formal complaint to the Council in June 2022 about its failure to secure the provision for D.
16. The Council responded to Miss C’s complaint. It said the previous team manager confirmed she had commissioned the provision. The manager then was unwell for a long time and then left. There was no handover period, and officers presumed the provision had been dealt with.
17. The Council said it would secure the provision by September. It also offered Miss C £300 for the frustration caused by the delay.
18. Miss C remained dissatisfied with the Council’s response and referred her complaint to stage two of the Council’s complaints procedure. She said £300 was unsatisfactory for her and D’s injustice.
19. The Council contacted OT and SALT providers in August and September. The providers responded and said they did not have any availability.
20. The Council issued its stage two response on 2 September. It said the special educational needs team had failed to provide the relevant information to the complaints department. It said if D did not receive SALT and OT by the start of her term at college (12 September) then it would review the offer of £300.
21. The Council arranged for D to have an OT assessment in October.
22. The occupational therapist completed her assessment in November. She recommended for D to have face to face OT. D is on a waiting list for this therapy.
23. The Council has now found a speech and language therapist for D. The therapist assessed D in January 2023.

Back to top

Analysis

Failure to secure OT and SALT

24. Councils have a legal and non-delegable duty to ensure a child or young person receives the provision in their EHC plan. The Council is at fault in this case as it failed to ensure D received the SALT and OT specified in her EHC plan. It only started enquiring about SALT and OT providers in August 2022, one year after it amended D’s EHC plan. This is a significant injustice as D has now missed out on this provision for over a year. Miss C has explained D is in constant pain and is struggling with her communication because of the Council’s faults.
25. The Council’s faults have also caused Miss C an injustice. She has been put to time and trouble chasing the provision and it has caused her frustration D is not receiving what she is legally entitled to.
26. The Council has now secured SALT. D is on a waiting list for OT. Miss C has recently found an alternative provider and she has suggested it to the Council. The Council has agreed to it, and Miss C is hopeful the provision will start for D within the next few weeks. However, this provision still has not been fully resolved, and so it remains a continuing injustice for D.

Administrative failings

27. When the Council responded to Miss C’s complaint, it said the team manager responsible for the provision was unwell for some time and she eventually left the post. This resulted in a lack of handover and presumptions made by other team members that D’s provision had been dealt with. It is clear this contributed significantly to the delay in arranging provision in this case.
28. The Council’s duty to secure the provision is set out in law. It should have robust processes and procedures in place to ensure when an officer is unwell or leaves, someone else picks up their work immediately. It is unacceptable for the matter to have been left to drift and delay without any action taken for so long.
29. The Council’s faults in not having robust handovers and staff cover arrangements in place is serious in this service area as it could lead to vulnerable young people not receiving the provision they are entitled to, as it did in this case. It should take urgent action to improve its service to ensure this does not occur again.

Complaints handling

30. The Council was also at fault for how it handled Miss C’s complaint. This has caused her further frustration and time and trouble referring her complaint to the Ombudsman. The special educational needs department failed to pass relevant information to the complaints department. This meant the Council could not complete a robust complaints investigation.
31. The Council says this was a one-off issue which was complicated by a crossover of senior management being on summer leave. While I accept this may have been a one-off issue, Miss C had a right for her complaint to be properly investigated. This did not happen.
32. The Council also said if D did not receive the provision by 12 September 2022, it would revise its offer of £300. D did not receive the provision by this date, but the Council failed to adhere to the commitment in its response and revise its offer.

Back to top

Agreed action

33. To address the injustice caused by fault, by 13 March 2023 the Council will:

• Apologise to Miss C and D.
• Pay Miss C £250 for her frustration and time and trouble.
• Pay Miss C, for the benefit of D, £2,500 for the lost OT and SALT provision. This is calculated at £200 per month until the end of December 2022 and then £100 per month until the end of January 2023.
• If the Council still has not secured OT it should pay Miss C, for the benefit of D, £100 per month until the provision is in place.

34. By 13 April 2023 the Council will:

• Ensure it has a process in place for checking provision specified in an EHC plan is arranged from the start of a new or amended plan. It should ensure within this process there is a robust system that when an officer responsible for the provision leaves their position or goes on sick leave, their work is passed to another officer to progress.

35. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

36. There was fault by the Council, which caused Miss C and D an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman