Summary: Ms M complains about delay by the Council arranging special educational provision in her son B’s Education, Health and Care (EHC) Plan. The Council has apologised and offered a payment to acknowledge the impact on B’s education.

The complaint

1. Ms M complains about delay by the Council arranging the special educational provision in her son B’s Education, Health and Care (EHC) Plan. In particular, Ms M complains about delay arranging Occupational Therapy and support for B’s anxiety.

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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. 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

4. I have considered information provided by Ms M and information provided by the Council. I invited Ms M and the Council to comment on my draft decision.

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What I found

5. Ms M’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council. B’s latest Plan was issued on 5 December 2022. The Plan includes provision from an Occupational Therapist and support from a psychologist for B’s anxiety.
6. Ms M complained the Council had not arranged the provision. She said she wanted compensation for the impact on B’s education.
7. The Council upheld Ms M’s complaint and apologised for the delay arranging the provision. The Council confirmed it had made a referral to a private Occupational Therapist who would assess B and the Council would then decide what provision could be made to make up for the delay.
8. The Council said it had agreed a personal budget for Ms M to secure support for B’s anxiety herself. I understand this followed disagreement between Ms M and the Council about who would deliver the provision. The Council said Ms M’s preferred provider did not have capacity and had suggested two alternatives. However, the Council understood Ms M was unable to secure their services.
9. Unhappy with the Council’s response, Ms M complained to the Ombudsman. She said that without the provision, B was unable to take full advantage of his education.

Education, Health and Care Plans: the law

10. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
11. Once the Council has issued a Plan, it must secure the special educational provision specified in the Plan for the child or young person. (Children and Families Act 2014, section 42)
12. The Courts have made it clear the Council’s duty to arrange provision is owed personally to the child and cannot be delegated. (R v London Borough of Harrow ex parte M [1997] ELR 62)
13. Parents can request a ‘personal budget’ and may receive money to buy the provision in their child’s Plan themselves. However, the Council’s duty to arrange the provision is only discharged once the provision has been secured for the child. (Special educational needs and disability code of practice issued by the Department for Education and Department of Health in January 2015, paragraph 9.120)

Consideration

14. Following Ms M’s complaint, the Council commissioned an independent provider of occupational therapy and psychological support to assess B’s needs and deliver the therapy in his Plan. The assessment was completed in early September 2023 and therapy began at the end of the month.
15. The Council hoped the provider would be able to deliver any additional therapy that was needed to make up for the delay. However, in response to my enquiries the Council said this was not possible.
16. Ms M says B was unable to benefit fully from his education without the support in his Plan. B’s occupational therapy is intended to help him with a wide range of problems, including regulation, sensory issues and his pencil grip.
17. Where we find fault by a council, we consider the impact on the person affected. We call this injustice. We may recommend a remedy if there has been injustice as a result of fault by the Council. Our primary aim is to put the person affected back in the position they would have been in if the fault by the Council had not occurred. If this is not possible, we may recommend a symbolic payment.
18. The Council accepts it took too long to arrange the occupational therapy and support for B’s anxiety in B’s Plan and apologised.
19. Unfortunately, it is not now possible to arrange additional therapy to make up for the delay.
20. The Council offered a symbolic payment of £3,200 to recognise the impact on B’s education of the delay arranging the therapy in his Plan between December 2022 and September 2023.
21. I welcome the Council’s offer. I consider this an appropriate remedy.

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Agreed action

22. The Council has apologised and offered a payment of £3,200 for the impact on B’s education of the delay arranging therapy in his EHC Plan.
23. I recommended the Council sends the apology and the payment to Ms M within six weeks of my final decision. The Council should provide us with evidence it has completed the above actions.
24. The Council accepted my recommendation.

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Final decision

25. I have completed my investigation as the Council accepts my recommendation.

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Investigator's decision on behalf of the Ombudsman