Summary: Mrs X complained there was a failure to provide Occupational Therapy (OT) support that is part of her daughter’s EHC provision. She also complained the Council failed to respond to her complaint. We found the Council had failed to provide the required support over a prolonged period and it had not responded to her complaint. We recommended the Council made a payment to Mrs X and to her daughter and that it developed an action plan to address the lack of Occupational Therapist resources that led to the problem in her daughter’s case.

The complaint

1. Mrs X complains that the Council has not put in place Occupational Therapy (OT) provision that formed part of her daughter’s EHC plan from 2021. She also complains the Council did not respond to her contacts to try and get the provision put in place and it failed to respond to a complaint she made in November 2022 about the matter.
2. Mrs X stated the lack of OT support means her daughter is often in pain during lessons and this makes it difficult for her to complete her work. Her daughter has ASD and severe anxiety and the pain also affects her mental health.

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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 significant injustice, or that could cause injustice to others in the future 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)

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How I considered this complaint

5. I spoke to Mrs X, considered her complaint and the information she provided. I asked the Council for information and I considered its response to the complaint.
6. Mrs 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

Law and Policy

7. A child with special educational needs may have an Education, Health and Care plan (EHC plan). This sets out the child’s needs and what arrangements should be made to meet them.
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 Council’s complaint policy stated it would acknowledge complaints within three working days and provide a full reply within 20 working days. It also stated if a complaint raised complex issues that could not be answered within 20 working days, the Council would keep the complainant informed of progress until it could fully respond.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

What Happened

11. Mrs X’s daughter (referred to as Y in this statement) has Autism, an anxiety disorder and other difficulties including excessive fatigue and weakness (hypermobility). She also has a diagnosis of mood instability and, at times, she experiences great difficulty in regulating her emotional and behavioural responses, particularly in noisy or unpredictable situations. Y has low self-esteem and heightened levels of anxiety, depression and anger. Y receives tutoring at home.
12. In May 2021 Y had an Occupational Therapist (OT) assessment.
13. On 16 August 2021 Y’s EHC plan was re-issued. It reflected the findings of the OT assessment. It stated Y has significantly reduced postural control and hypermobility in her joints. This affected her endurance and her ability to sustain a static standing or seated position. This causes fatigue and joint pain. It impacts her ability to fully engage in learning and affects other day-to-day activities.
14. Section F of Y’s EHC plan sets out support that is required from an OT to help Y achieve improve her postural control, sensory modulation, processing difficulties and independence skills. The EHC plan requires OT input to provide strategies and advice to staff working with Y. It also requires direct and indirect therapy input integrated into Y’s learning week to address Y’s sensory needs and to consider the impact of hypermobility on Y’s learning. OT support is also relevant to building independence and life skills. It requires a specific plan to be designed, monitored and developed by a paediatric OT for this purpose.
15. The EHC plan stated Y should have weekly OT sessions for one term (12 weeks), followed by fortnightly sessions for terms two and three. The plan also set out the OT support needed to train and advise staff and to develop and review the support she was receiving.
16. As at November 2021, the Council had not put in place the required OT support. It apologised to Mrs X for this. The Council stated it had struggled to find suitable suppliers with capacity.
17. Y’s EHC plan was reviewed in April 2022 and the decision was made to maintain it in July 2022. However, the required OT provision was still not put in place.
18. Mrs X says she emailed the Council several times in September and October 2022. Y’s SEN caseworker also chased this.
19. On 2 November 2022 Mrs X complained because the OT support still had not been provided and the Council had been ignoring all contacts and requests for an update. The Council acknowledged the complaint on 8 November.
20. On 15 December 2022 the Council sent Mrs X a holding email stating the complaint was being taken seriously and the complaints team would continue to pursue the issues raised. Mrs X responded noting the complaint was about a lack of information and response. It asked if someone could provide an expected timeline or an update. She received no reply.
21. In March 2023 Mrs X brought a complaint to the Ombudsman because she received no response from the Council to her complaint and because Y’s OT provision was still not in place.

The Council’s Response

22. The Council acknowledged that from August 2021 to date, Y had not received the OT provision that was set out in her EHC plan and this was unacceptable. The Council stated this was because it had not been able to secure suitable suppliers for OT services.
23. The Council accepted its communication had been poor and there had been a lack of responsiveness for cases where provision was not being made. It stated staff continuity had also been an issue. The Council also acknowledged it had a significant backlog of complaints and it acknowledged it had not responded to Mrs X’s correspondence and complaint.
24. The Council stated it had approached 22 potential suppliers of OT services in May 2023. The Council stated it had met regularly with one supplier during June and early July and they were advertising for OTs. However, it could provide no timeframe for providing Y’s OT provision due to the ongoing need to recruit OTs. The Council recognised this was unacceptable.

Was there fault by the Council

Failure to provide Occupational Therapy support

25. It is clear from Y’s EHC plan that she needed specified support from an OT to ensure she could achieve the goals set out in her EHC plan.
26. The Council accepted that it failed to provide the required OT support in Y’s case. It told us this was due to a lack of OT resources. This does not remove the Council’s duty to ensure the provision set out in an EHC plan is delivered. The failure to deliver the OT provision set out in Y’s EHC plan represents service failure by the Council.
27. The lack of support has been ongoing for two years, or six school terms. This is a prolonged period for Y to manage without the correct support. It has affected Y’s wellbeing and her ability to access her education properly.

Complaint Handling

28. The Council did not respond to Mrs X when she chased for progress updates about when Y’s OT support would start. The Council then failed to respond to Mrs X’s complaint from November 2022. The failure to offer any explanation or updates about the delay in the provision starting and then a failure to respond to Mrs X’s complaint only added to her frustration. This is fault and it has caused Mrs X distress, frustration and avoidable time and trouble.
29. I am aware that we have identified recurrent fault by the Council in a number of previous investigations. In June 2023 we issued a public report in which we identified that the Council had a significant backlog of complaints about Special Education Needs issues. Mrs X’s complaint is one of many complaints caught up in the backlog. We made recommendations to the Council to address this and respond to these complaints, so I have not made further recommendations about the wider issue of complaint handling in this decision.
30. I have recommended a payment to Y to acknowledge the loss of OT provision over a prolonged period. This is based on £850 per term. We have recommended further payments of £850 per term should be made until the provision is put in place. A payment has also been recommended to Mrs X to reflect the distress, time, trouble and frustration the matter has caused.
31. I have also recommended that the Council takes action to address the lack of OT resources that caused the lack of provision in Y’s case.

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Agreed action

32. Within four weeks of my final decision the Council should:
33. Pay £5,100 to recognise the lack of Occupational Therapy provision between August 2021 to August 2023.  This money should be used for Y’s benefit. 
34. Pay £850 per term, for every term the Occupational Therapy is not provided from 1 September 2023 until it is in place (pro-rata for any part-term affected). This money should be used for Y’s benefit.
35. Pay £400 to Mrs X to acknowledge the frustration and distress caused by the Council’s lack of provision and lack of response to her correspondence and complaint.  
36. Within three months of my final decision:

37. The Council should develop an action plan to show how it intends to address the ongoing lack of Occupational Therapy availability in its area. This should be reported to the relevant committee for democratic scrutiny and an update should be provided to the Ombudsman to set out the actions agreed to improve this area of provision.

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

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Final decision

39. There was fault by the Council. I have completed my investigation on the basis the Council carried out the agreed action.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman