Summary: Ms Y complained the Council failed to provide all the special educational needs support set out in her child’s Education, Health and Care plan. We have found fault by the Council in failing to deliver the Occupational Therapy and Speech and Language Therapy in the plan, causing injustice. The Council has agreed to remedy this injustice by apologising to Ms Y, making a payment to reflect the distress this caused her, and arranging catch-up sessions for the missed provision.

The complaint

1. I am calling the complainant Ms Y, and her child, Z. Ms Y complains the Council has failed to provide all of the special educational needs support set out in Z’s Education Health and Care plan issued in August 2023.
2. Ms Y wants the Council to put all the support in place and pay financial redress for the impact on Z of the missed provision.

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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.
4. 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)
5. 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)
6. 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)
7. 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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How I considered this complaint

8. I spoke to Ms Y, made enquiries of the Council and read the information Ms Y and the Council provided about the complaint.
9. I invited Ms Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education Health and Care Plans

10. A child or 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.
11. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or there have been delays in the process.
12. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision.

What happened

13. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

August 2023: Z’s final amended EHC plan

14. The Council issued Z’s final amended EHC plan in August 2023, following Ms Y’s appeal to the SEND Tribunal about the arrangements for their special educational needs (SEN) provision, The plan set out the provision for Z’s education and SEN support to be delivered through a package of education otherwise than at school (EOTAS).
15. The EOTAS package provided for a personalised curriculum, activities and sessions and included:

• fortnightly 45 mins Speech and Language Therapy (SALT) sessions; and
• direct input from an Occupational Therapist (OT) to support development of sensory and motor skills – 6 direct sessions a term (45 mins a week)

The delivery of Z’s provision from August 2023

16. The information I have seen shows the Council worked with Ms Y to develop a suitable EOTAS package for Z. It offered tutoring and mentoring sessions, and a range of activities and agreed Z’s timetable with Ms Y. It also put in place a personal budget for swimming and a fuel allowance to enable Ms Y to take Z to and from sessions.
17. There was an issue with the delivery of Z’s OT and SALT support. The information I have seen shows:

• The Council made enquiries to find SALT and OT providers from September 2023 onwards without success.
• The Council was able to find a SALT provider to start provision from January 2024, but this did not go ahead;
• Arrangements were made for SALT provision to be delivered from February 2024 by the specialist school at which Z was due to start; and
• OT provision was discussed. The OT advised the work should be carried out in a setting outside the home. It has not been possible to arrange with Ms Y yet. The Council says OT will be accessed when an appropriate setting is found.

My view – was there fault by the Council causing injustice?

18. The Council has explained the difficulties it had initially, from September 2023, in finding suitable providers with capacity to deliver Z’s OT and SALT provision. It also explained, why, having found providers, there was a further delay because of the difficulty finding suitable settings in which to deliver the OT and SALT provision.
19. Our view is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault.
20. Here, while I appreciate the Council’s difficulties, it has failed to deliver Z’s OT and SALT provision from September 2023, as set out in their EHC plan. In my view this is fault. This failure means Z has missed a significant amount of their OT and SALT provision in this school year.
21. I understand the Council is arranging a placement for Z at a specialist school with facilities for the delivery of Z’s OT and SALT sessions. On this basis I consider the Council should remedy the impact on Z of the missed provision by arranging additional OT and SALT sessions to enable Z to catch up with the provision missed so far.
22. The failure has also caused Ms Y upset and worry.
23. I do not propose finding fault by the Council with regard to the delivery of the other provision in Z’s EOTAS package.

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Agreed action

24. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Ms Y for its failure to deliver Z’s OT and SALT provision from September 2023 in line with our guidance on Making an effective apology;
2. pay Ms Y £150 to reflect the upset and worry caused by Z’s missed OT and SALT provision. This is a symbolic amount based on our guidance on remedies.
3. arrange additional OT and SALT sessions for Z, to enable them to catch up and remedy the injustice caused by OT and SALT provision missed since September 2023; and
4. report back to us on the arrangements it has made for the delivery of Z’s ongoing OT and SALT provision and the catch-up sessions.
25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action as a suitable way to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman