Summary: Ms X complains the Council wrongly refused to pay for an occupational therapy assessment as part of her son’s Education, Health and Care needs assessment (EHC needs assessment). Ms X said as a result she had to pay for this herself. We have discontinued this investigation, as the Council and another body involved have now reimbursed Ms X in full for the two occupational therapy assessments she commissioned. There is no longer sufficient injustice to Ms X that would justify the Ombudsman’s involvement and further investigation would not lead to a different outcome.

The complaint

1. Ms X complains the Council wrongly refused to pay for an occupational therapy assessment as part of her son’s EHC needs assessment. She said this caused her frustration and cost her money she should not have had to pay.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement and further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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 considered the information provided by Ms X and the Council.
5. I considered the relevant law and guidance as set out below.
6. I considered our Guidance on Remedies.
7. I considered comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

EHC plans and needs assessments

8. A young person with special educational needs may have an Education, Health and Care (EHC plan). This sets out their needs and what arrangements should be made to meet them.
9. When deciding whether to issue an EHC plan, councils will carry out an EHC needs assessment.
10. The statutory guidance, the ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans.
11. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
12. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
13. Those consulted have a maximum of six weeks to provide the advice.

What happened

14. In June 2022, as part of Z’s EHC needs assessment, the Council asked its local NHS service to carry out an occupational therapy assessment for Z.
15. By the time the Council was due to decide whether Z needed an EHC plan, in line with the statutory guidance, the NHS service had not yet carried out the requested occupational therapy assessment.
16. The Council decided Z needed an EHC plan and issued the plan. The Council said it had chased up the NHS service several times and marked the case as urgent but no occupational therapist was available in time to contribute to Z’s EHC needs assessment.
17. Ms X complained and the Council responded to say the local NHS service had a shortage of occupational therapists. It said there was a long waiting list for assessments but Z was on their list.
18. The Council initially said it would not reimburse Ms X if she sought an assessment privately as the shortage of occupational therapists was outside its control.
19. Ms X paid for an occupational therapy assessment for her son privately in January 2023. This required a second follow up assessment afterwards, which she also paid for.
20. Ms X was unhappy and complained to the Ombudsman. However by the time the Ombudsman began investigating this case, the Council and the NHS body jointly reimbursed Ms X for the private occupational therapy assessments she had paid for.

My findings

21. Before we begin or continue our investigations we consider two, linked questions which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
22. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• Not to investigate; or
• To end an investigation we have already started.
23. There is now insufficient evidence of injustice caused to Ms X for us to continue investigating this matter, as she has been reimbursed for the cost of these occupational therapy assessments.
24. In addition, any further investigation by us would not lead to a different outcome for Ms X. There are also no wider public interest considerations that justify our investigation.
25. The remedy offered by the Council and the NHS body is in line with our Guidance on Remedies. It is therefore not a proportionate use of our resources to investigate this matter further and a different outcome for Ms X would likely not be achievable.

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Final decision

26. I have discontinued the investigation due to no different outcome achievable.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman