Summary: Mrs X complained the Council failed to provide occupational therapy provision set out in her child, Child Y’s, Education Health and Care (EHC) plan since September 2022. The Council was at fault for not providing Child Y with the occupational therapy provision set out in their EHC plan because of the failure to source an occupational therapist to provide this provision. The Council will apologise and pay Mrs X £1700 for the loss of occupational therapy provision between September 2022 and May 2023. When the Council provide Child Y with occupational therapy it will provide Mrs X with a further financial remedy to recognise any loss of provision from June 2023.

The complaint

1. Mrs X complained since mid-September 2022, the Council failed to provide occupational therapy provision set out in her child, Child Y’s, Education Health and Care (EHC) plan. Mrs X would like financial compensation for a private occupational therapy report she commissioned and lost occupational therapy provision. She would like to know when the occupational therapy provision will be provided for Child Y and for it to be provided as soon as possible.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
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. 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)
5. 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

6. I considered:
• the information Mrs X provided and spoke to her about the complaint;
• the information the Council provided;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
7. Mrs X and the Council had an opportunity to comment on the draft decision. We considered comments received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

8. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
9. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.
10. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints where support set out in the EHC plan has not been provided, or where there have been delays in the process.

What happened

11. Child Y lives at home with their family. Child Y has a learning disability, autism spectrum disorder (ASD), sensory processing disorder (SPD) and anxiety.
12. Child Y’s mother, Mrs X commissioned a private occupational therapy (OT) report for Child Y. She said the Council used the content from the private report for Child Y’s final amended EHC plan.
13. In mid-September 2022 the Council issued Child Y’s final amended EHC plan. Section F of the plan outlined the OT provision Child Y was entitled to which included:
• individualised sensory strategies;
• participation in gross and fine motor skills programmes, for 30 minutes, twice a week;
• Child Y’s teaching staff to be trained and advised regularly on how to implement sensory strategies, and motor programmes, at least annually, and termly if there is a change of core staff;
• termly review of all motor skills programmes and sensory strategies; and
• 10 sessions of direct Ayers Sensory Integration (ASI) therapy, 45 minutes per session, including 15 minutes for liaison and 15 minutes for planning per session, per term, for at least 3 terms.
14. In late December 2022 Mrs X made a formal complaint to the Council. She said the Council had not secured any OT provision for Child Y since the Council issued the final amended EHC plan in mid-September 2022. She said the Council told her it could not provide OT provision because it could not source an occupational therapist.
15. In late January 2023 the Council responded to Mrs X’s formal complaint. It said:
• it apologised for the late response to her formal complaint which was because of staff absence over the Christmas period;
• the OT provision set out in Section F of Child Y’s EHC plan could not be delivered at that time;
• it had consulted health professionals about OT but there was no capacity and Child Y was on a waiting list;
• it had also contacted local and regional private OTs within 50 miles and it could not find an OT with availability or capacity to deliver Child Y’s OT provision;
• it would continue to seek OT support privately; and
• if Mrs X remained unhappy she could contact the Ombudsman.
16. Mrs X remained unhappy and contacted us.
17. In late May 2023 Mrs X told us Child Y still did not have OT provision. Mrs X said she sourced a private OT which the Council contacted but they only provided online OT which was not suitable for Child Y’s needs. The Council told Mrs X it would continue trying to source OT provision for Child Y.

My findings

18. The Council did not secure OT provision for Child Y as set out in the final amended EHC plan of September 2022. Child Y received no OT support between mid-September 2022 to the end of May 2023. Child Y is still on the waiting list for OT provision. This is fault and meant Child Y did not receive the OT support they were entitled to.
19. The Council tried to secure OT provision locally, regionally and privately but there was no OT capacity or availability for Child Y and they are still on a waiting list for OT provision. While I accept there are justifiable reasons why the Council could not source an OT, the Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure.
20. The Council have agreed to take action to ensure any lost provision between the start of June 2023 and the date when the Council eventually secures OT provision is also adequately remedied.

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Agreed action

21. Within one month of the final decision the Council will apologise and pay Mrs X a symbolic payment of £1700 to acknowledge the loss of OT provision for Child Y between September 2022 and May 2023.
22. Once the Council secures OT for Child Y then it will provide a remedy, in line with our guidance on remedies for the loss of OT provision from early June 2023 to the date OT provision is secured. It will be open for Mrs X to complain to us if the Council either fails to carry this action out or she is dissatisfied with the outcome. The Council will provide us with updates on this action every two months until it secures OT provision for Child Y.

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Final decision

23. I have completed my investigation finding fault and injustice. The Council have agreed to take action to remedy the injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman