Summary: The Council’s delay securing the Occupational Therapy in Z’s Education, Health, and Care Plan was fault. The Council was also at fault in how it communicated with Miss X about this and about her complaint. The Council has agreed to apologise, make a payment, and act to improve its service.

The complaint

1. Miss X complained that the Council delayed providing the Occupational Therapy (OT) in her child’s Education, Health and Care Plan by 11 months.
2. She also complained that the Council failed to tell her about its delay securing an OT and failed to respond to her complaint at stage two of its process.
3. As a result, Miss X’s child spent 11 months without the OT support needed and she had to go to significant time and trouble bringing her complaint.

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The Ombudsman’s role and powers

4. 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)
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)

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How I considered this complaint

6. I spoke to Miss X and considered the information she provided.
7. I considered the information the Council provided in response to written enquiries along with relevant law and guidance.
8. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
9. Miss X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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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What I found

EHC Plans

11. 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.
12. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
13. Where the Tribunal orders a council to amend an EHC Plan, the council shall amend the EHC Plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) 
14. The Council is responsible for making sure that arrangements named in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

What happened

15. Miss X’s child, whom I will call Z, has special education needs.
16. Miss X appealed to the SEND Tribunal about Z’s EHC Plan. In March 2021, the Tribunal ordered the Council to include Occupational Therapy in Z’s plan.
17. In April, the Council issued the amended plan to Miss X and the school. However, in May the Council realised it had sent the wrong plan. It sent out the corrected version of the plan, including the Tribunal’s changes the next day.
18. In June, the OT service the Council had commissioned for Z told the Council they did not have capacity to provide the OT in Z’s plan. The Council then had to commission another OT.
19. The Council says it identified a provider in late autumn. However, the OT was then unwell and unable to start.
20. In response to Miss X’s complaint, the Council said in January 2022 the OT should start “imminently”. Miss X says the OT started in late March 2022.
21. In response to her complaint, the Council acknowledged delay in making the OT provision. However, it said the Council was “unable to find any evidence that they did not deliver what was required of them” and so did not uphold the complaint. The Council did commit to ensuring officers kept closer oversight of commissioned services to make sure these are delivered in a timely way.
22. Miss X asked the Council to escalate her complaint to stage two of its process in early March.
23. The Council wrote to Miss X a week later to say that her request was late. Its policy is that requests to go to stage two should be made within 28 days of the decision at stage one. Miss X says she did not receive this email.
24. Miss X sent six further emails to the Council between May and August 2022 asking for the outcome of her stage two complaint. The Council did not respond.
25. Miss X first approached the Ombudsman in September.

My findings – OT provision

26. The Council has a duty to secure the special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). 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)
27. The Council had a duty to secure the OT provision for Z from April 2021. This provision did not start until March 2022. This delay of 11 months was fault.
28. As a result, Z did not receive the necessary OT provision for almost a year. This is an injustice to Z. Miss X described how much Z has benefited from the OT support since March 2022. Z missed the opportunity to experience these benefits 11 months earlier.
29. Further, I have seen no evidence that the Council told Miss X the OT had not started. Miss X did not find out until late in 2021 that this was not already in place. This failure to communicate with Miss X was fault.

My findings – complaint handling

30. The Council responded to Miss X’s stage one complaint in good time and in line with its complaint policy.
31. The Council’s policy says complainants should ask to progress their complaint to stage two within 28 days. The Council’s stage one complaint response does not contain this information, which would be best practice. However, the Council did send Miss X a link to its policy.
32. Miss X told me she did not contact the Council to ask for a stage two until early March because the stage one response was delivered to a neighbour in error. This neighbour was on holiday and so Miss X did not receive the Council’s letter until February. She also says she did not receive the Council’s email in March asking her to explain her delay in bringing in the complaint.
33. In the circumstances, I do not consider the Council’s failure to escalate Miss X’s complaint was fault. It did not know she received the letter late and it did not know she had not received its email.
34. However, the Council’s failure to respond to any of Miss X’s further contacts about the issue was fault. The Council should have replied and explained to Miss X that it had not investigated her complaint at stage two because she did not respond to its email in March. Miss X could then have explained the reasons for the delay and the Council would have considered whether to exercise its discretion to consider the complaint at stage two.
35. Instead, Miss X went to significant time and trouble chasing the Council. She became, understandably, increasingly frustrated at being ignored.
36. When Miss X first brought her complaint to the Ombudsman, we asked the Council to look at the complaint and communicate with Miss X. Despite this, Miss X came back to the Ombudsman in December because the Council had not been in contact with her. This was fault.
37. The Council’s fault caused Miss X avoidable time, trouble, and frustration. This is an injustice to Miss X.

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Agreed action

38. To remedy the injustice to Miss X and Z from the faults I have identified, the Council has agreed to:
• Apologise to Miss X in writing
• Pay Z £3,300 being £300 for every month of missed OT provision.
• Pay Miss X £300 in recognition of her avoidable distress and time and trouble
39. The Council should take this action within four weeks of my final decision.
40. The Council should also take the following action to improve its services:
• Remind relevant staff of the duty to ensure the provision in an Education Health and Care Plan is in place within five weeks of a Tribunal’s order.
• Remind relevant staff that the Council should communicate any delays securing provision in an Education Health and Care Plan to the parent or young person.
• Remind relevant staff responsible for complaints that the Council should acknowledge and respond to complaints correspondence promptly.
41. The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.

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Final decision

42. I have completed my investigation. The Council was at fault. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman