Summary: Mr X complained the Council have failed to ensure his son received the occupational therapy support set out in his Education, Health and Care plan. He also said the Council failed to provide his son with Cognitive Behavioural Therapy. We find the Council was at fault. This had a significant impact on Mr X’s son’s transition to college and caused Mr X significant stress. To address the injustice caused by fault, the Council has agreed to several recommendations.

The complaint

1. The complainant, Mr X, complains the Council have failed to ensure his son received the occupational therapy support set out in his Education, Health and Care (EHC) plan. He also said the Council failed to provide his son with Cognitive Behavioural Therapy (CBT). Without this support Mr X said this has had a significant impact on his son’s transition to college.

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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. 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.
4. 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

5. I spoke with Mr X about his complaint. I considered all the information provided by Mr X and the Council.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened?

Education, Health and Care plans

7. 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
8. The council has a duty to secure the specified 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)
9. The SEND code of practice states provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise, including where this support is secured through a personal budget.
10. Provision must be specified for each and every need specified in section B. It should be clear how the provision will support achievement of the outcomes.

What did happen?

11. This section sets out the key events in this case and is not intended to be a detailed chronology.
12. Mr X’s son, Mr Y, has a diagnosis of autism spectrum disorder (ASD) and a language disorder associated with ASD and has an EHC plan.
13. Mr Y was referred to occupational therapy following an assessment by the autism and related disorders team with a view to commence engagement with Mr Y, in preparation for him to start college after four years out of the school system.
14. Between June and November 2021 an occupational therapist (B) worked closely with Mr Y. Throughout this time, B visited Mr Y at home, outside and at the college he would be joining in September 2021. B’s report issued in February 2022 recommended weekly occupational therapy with a view to support development of skills and abilities as well as support Mr Y to manage his sensory differences impacting on engagement.
15. An annual review of Mr Y’s EHC plan was held in March 2022. It stated the Council would look at whether the occupational therapy should be incorporated into Mr Y’s EHC plan and look at how this arrangement for therapy, if agreed would be delivered.
16. The Council’s notes on the annual review stated Mr X had asked why therapeutic input had not been provided and he questioned why the Council had asked for counselling not to take place at the college. The Council stated it had previous discussions about Mr Y being supported by the college counsellor and did not want this to overwhelm him. It said B recommended this support be considered as an amendment to section F of the EHC plan, so that it was lined up and identified once Mr Y was ready.
17. Mr Y’s EHC plan was finalised on 26 May 2022. Under section F, the special educational provision, it stated Mr Y would see an occupational therapist weekly as per the report issued in February 2022. It also stated a structured therapeutic intervention would be delivered alongside, and incorporated with, Mr Y’s learning environment. It said this would consist of weekly sessions of 30-45 minutes according to Mr Y’s capacity and tolerance.
18. Mr X complained to the Council on 23 July 2022. He said the Council had failed to provide the occupational therapy and stated no CBT was in place.
19. The Council responded to Mr X’s complaint under its stage one complaints process on 30 September 2022. It said the Council could not meet its obligations if no specific recommendations were in place and said it had now sourced an occupational therapist to work with Mr Y. It said Mr X had previously declined the CBT offer on the basis that Mr Y would be overwhelmed. It said it had now made enquires in respect of the CBT.
20. Unhappy with the Council’s response, Mr X requested his complaint be escalated on 3 and 6 October 2022.
21. The Council responded under its stage two complaints process the following month. It said the law requires EHC plans to be quantified and specific and a generalised reference to requiring occupational therapy does not enable the Council to identify which approaches are required. It said it did not deny that Mr Y required occupational therapy but said the nature of his requirements must be established through a formal assessment. It also said Mr Y was due to meet with a cognitive behavioural therapists at college.

Analysis

22. In response to our enquires the Council said the report completed by B was not an assessment, but an observation. It said although the report stated the support should be weekly, it failed to set out any other definition which it said is not in line with the SEND code which states provision must be detailed and specific and should normally be quantified. While we recognise the provision was not quantified, at the annual review in March 2022 it was noted that the Council would look at whether the occupational therapy should be incorporated into Mr Y’s EHC plan and stated it would look at how this arrangement for therapy, if agreed would be delivered. The therapy was incorporated into the EHC plan in May 2022 and the Council did not source an occupational therapist until 30 September 2022. This is fault. Councils have a duty to secure the special educational provision in an EHC plan. The failure to do so meant that Mr Y went without occupational therapy for three school months.
23. Mr X told us the Council said the CBT therapist in college was not suitable in January 2022 but stated the Council has now said the same therapist is suitable. The Council said the suitability of the therapist itself was not in question. But it said Mr X and Mr Y’s advocate queried whether the colleges CBT therapists would have the requisite expertise. It said the hospitals speech and language therapist (SALT) stated that Mr Y’s communication difficulties would make it difficult for him to access traditional therapy and said it was agreed to prioritise SALT in the first instance, with CBT to be reconsidered at a later date. It also said Mr Y’s interventions had previously been limited to avoid the risk of overwhelming him when re-entering education following a long absence. The Council said, since September 2022, Mr Y has been on a reserve list for CBT and he is required to indicate if and when he is ready to commence therapy. Whilst we have two differing views, we have seen no evidence to suggest that the CBT therapist was unsuitable.
24. Mr X told us the CBT refers to the therapeutic interventions noted in paragraph 17. We asked the Council what the therapeutic interventions refer to and asked it to explain how this was being delivered. The Council said this came from the Educational Psychologist’s report but said it did not refer to the CBT. It said Mr Y had access to fortnightly SALT at college. But Mr Y’s EHC plan stated SALT should be delivered alongside other therapeutic interventions. Mr X provided us with the Education Psychologist report dated 2020 which stated the exact nature of the therapeutic framework would need to be determined by Mr Y’s interests and level of readiness to engage. But it said it may include motivational interviewing, cognitive behavioural approach and solution-focused approaches. The Council has provided no evidence to suggest that it has delivered any therapeutic interventions separable to the SALT, as stated in the EHC plan. This is fault. This meant Mr Y went without the provision specified in his EHC plan.

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Agreed action

25. To address the injustice caused by fault, within one month of my final decision the Council has agreed to:

• Apologise to Mr X and Mr Y for the faults identified in this statement
• Pay Mr Y £200 for failing to initially secure the occupational therapy stated in his EHC plan.
• Pay Mr Y £300 for failing to secure the therapeutic interventions stated in his EHC plan.

26. Within two months of my final decision the Council has agreed to issue written reminders to relevant staff to ensure they are aware of the Councils duties to:

• Secure the specified special educational provision in an EHC plan for the child or young person.

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

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Final decision

28. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman