Summary: Mrs B complained that the Council, in respect of her son C’s special educational needs, had failed to secure occupational therapy and tuition in accordance with his Education, Health and Care Plan. We found fault causing injustice. The Council has agreed to pay Mrs B £1800 for the benefit of C and to continue its efforts to secure the provision.

The complaint

1. Mrs B complained that Suffolk County Council (the Council) in respect of her son C’s special educational needs:
• consulted with a school about a place for C without informing Mrs B and against the provision stipulated in the Education, Health and Care (EHC) plan for Education Other Than At School (EOTAS);
• failed since March 2023, to provide the extra 5 hours tuition or the occupational therapy, detailed in the EHC plan; and
• failed to communicate properly or consistently with Mrs B about these issues.
2. This has caused Mrs B continuing distress, frustration and inconvenience and C to miss out on the education and support to which he is entitled.

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The Ombudsman’s role and powers

3. 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)
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. A child with special educational needs may have an 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.

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What I have and have not investigated

6. I have not investigated the first part of the complaint, regarding consultation with a school as the Council provided more information during the investigation which resolved this issue.

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How I considered this complaint

7. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

9. We investigated a previous complaint from Mrs B about her son C’s special educational needs and made a decision on 17 April 2023. The Council had just issued the final EHC plan for C including ten hours of tuition. In our decision statement we asked the Council to put this tuition in place. In May 2023 the Council confirmed that Mrs B had asked for five hours of tuition rather than the full ten.
10. Mrs B complained to the Council in the autumn of 2023 about a number of issues including the complaint that the Council had failed to provide education or occupational therapy for C in accordance with his EHC plan, between March and July 2023.
11. The Council acknowledged that it had not been able to put in place either of these provisions. In respect of the tuition it said it had identified a provider, a meeting had taken place to discuss how the provision would work and further liaison to get the support in place. But it said the tuition could not go ahead because the provider required a responsible adult present. In other cases this had been a parent or carer. Mrs B said it was not possible for a parent or carer to be present for C so the tuition had not started.
12. As a remedy for the continued failure to implement the provision in accordance with the EHC plan it offered a payment of £2250 plus an additional £150 for the delay in responding to the complaint.
13. Mrs B complained to us.
14. In response to my enquiries the Council said it had still not managed to secure the occupational therapy provision despite approaching 14 providers. It apologised and said it would continue to search for a provider.
15. In respect of the tuition, it said it had identified a provider and the tuition was ready to start in July (one day a week on a Tuesday). But Mrs B had confirmed it was not possible for the tuition to take place at their home with a parent present. The Council had secured an external venue, but the provider would not deliver the tuition without a parent or other responsible adult present. It said it believed no other provider would take a different position for reasons relating to safeguarding and the potential need for personal care support.
16. In response to my further enquiries on the issue, the Council said it had explored the option of using the venue of an organisation that was already providing different support to C as part of his special educational provision, but the organisation could not agree to this due to problems with the maximum number of hours it was able provide.
17. The proposed tuition provider had raised concerns around the first aid, toileting, physical intervention, supervision in the event C left the session, two new adults being overwhelming for him, support with food and eating. It said it would be best if a parent or carer could support the sessions.
18. The Council has further explained that it is not a unique position and in the vast majority of cases the tuition takes place at home particularly where the student may have these specific issues. But where an external venue was used a parent or carer was usually present. The Council said it accepted these were legitimate concerns and could arise in relation to several areas highlighted in C’s EHC plan. It said it was continuing to look for a workable solution.
19. C’s final EHC plan issued in February 2023. Section F of the plan which specifies the required provision, says C will have a teaching assistant or other staff member present for the weekly 1:1 speech and language therapy sessions lasting an hour. It does not say another adult needs to be present for the 10 hours of tuition as part of the EOTAS package. It also says that C will need support to access wider curricular activities and for out of school activities a parent will provide that support.
20. No health or social care needs are identified in the plan. In terms of toileting needs section F says that C requires frequent reminders, but no other adult is required.

Analysis

21. The Council provided a remedy for the missing provision up until the end of the summer term 2023. But despite its efforts the Council has been unable to provide occupational therapy for C in accordance with his EHC plan. This is service failure and is fault. I welcome the Council’s continuing efforts to secure this provision, but the continuing failure is causing C to miss out on essential support to meet his needs.
22. In respect of the tuition the Council has found a provider who could have started the tuition in July 2023, but the situation has been at a stalemate because the tuition provider requires a parent or other responsible adult to be present at the sessions. While the tuition provider is entitled to make its services dependent on certain requirements, I do not consider it is reasonable for the Council to accept these requirements when they are not specified in the EHC Plan. The Plan requires a parent to be present for out of school activities and a teaching assistant to be present for speech and language therapy, but it does not include this requirement for the external tuition. Neither does it require an adult to be present to help with any toileting needs. If the Council considered the tuition provider’s request reasonable then it could have sought a teaching assistant or equivalent to be present at the sessions and amended the EHC Plan to reflect this need. It has not done so, and I consider the continuing failure to provide at least five hours of external tuition is fault which causes Mrs B distress and inconvenience and C to miss out on essential education.

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Agreed action

23. In recognition of the injustice caused to C by the lack of OT and tuition provision, I recommended the Council within one month of the date of my final decision:
• pays Mrs B for the benefit of C, £900 for each provision (a total of £1800) representing 2 terms of missed provision @£450 per term and agrees to continue that level of financial remedy until the provision is secured; and
• continues its efforts to resolve the tuition provision as soon as possible.
24. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

25. I consider this is a proportionate way of putting right the injustice caused to Mrs B and C and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman