Summary: Ms M complains the Council has not arranged the specialist occupational therapy in her daughter G’s December 2021 Education, Health and Care (EHC) Plan, and has not reviewed the Plan. The Council offered payments for the missed provision and recognises the need to review the Plan. The Council has contacted a therapist identified by Ms M to arrange the provision.

The complaint

1. Ms M complains her daughter, G, has not received the Occupational Therapy (OT) in her Education, Health and Care (EHC) Plan since September 2021.
2. The Council has offered payments for the provision G has missed, but Ms M is concerned the Council has still not arranged the provision. She is concerned about the impact on G’s education.
3. Ms M complains the Council has not reviewed or updated G’s EHC Plan since 2021.

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The Ombudsman’s role and powers

4. 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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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.
6. Once 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

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

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What I found

8. Ms M’s daughter, G, has an Education, Health and Care (EHC) Plan maintained by the Council. Her plan includes a significant amount of Occupational Therapy to help with sensory issues, maintaining focus, and fine and gross motor skills.
9. G started at a new school in September 2021. Ms M says G has not received the occupational therapy (OT) in her Plan, except for a small number of sessions in July 2023, since she started.

Education, Health and Care Plans: the law

10. An Education, Health and Care (EHC) Plan describes a 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)

Reviewing Education, Health and Care Plans

13. The procedure for reviewing and amending an Education, Health and Care Plan is set out in legislation and Government guidance.
14. The Council must review a child’s Plan at least every 12 months.
15. The process begins with a review meeting which is usually organised by the school on behalf of the Council.
16. Following the meeting, the school must send a report to the Council. The Council must decide within four weeks of the meeting whether it intends to make changes to the child’s Plan. The Council must notify the child’s parents of its decision.
17. If it decides to amend the Plan, the Council must notify the parents of the changes it intends to make and invite them to request a particular school. A recent court judgement confirmed this must happen within 4 weeks of the review meeting.
18. The Council must issue the final Plan as quickly as possible and within eight weeks of sending the draft Plan.
19. Parents have a right of appeal to the SEND Tribunal if they disagree with the Council’s decisions.

Complaint 1: Occupational Therapy

20. G’s December 2021 EHC Plan says she should receive one hour of direct, one-to-one intervention from an occupational therapist each week for a total of 37 weeks each school year. The therapist should also train staff and contribute to reviews.
21. The Plan says the therapist should be an HCPC registered specialist Occupational Therapist with post-graduate training in sensory integration to at least level 3.
22. The Council reviewed G’s Plan in 2022 and did not make any changes.
23. The Council has not reviewed G’s Plan in 2023.
24. In response to my enquiries, the Council said it has been unable to arrange the occupational therapy in G’s EHC Plan.
25. The Council said three different caseworkers had been responsible for G’s Plan since 2021 and this had caused problems. There had been organisational changes at the school which caused further problems.
26. The Council said it had approached 30 Occupational Therapists and only one was able to meet G’s needs. This therapist provided the sessions in July 2023.
27. Having found a suitable therapist, I wanted to understand why she only provided therapy in July 2023.
28. The Council sent me an email from a manager dated 25 May 2023 which says she had authorised the funding for the therapist, but only until the end of term. She said she would need an “updated OT report with progress etc” before agreeing funding for 2023/2024.
29. Ms M sent me an email from the therapist dated 24 September 2023 in which the therapist said she had not received confirmation from the Council to continue G’s therapy. The therapist said she had taken alternative permanent work and apologised that she would be unable to help.
30. I accept there are challenges finding suitably qualified therapists to deliver specialist occupational therapy.
31. Nevertheless, the provision is specified in G’s Plan, so the Council is obliged to arrange it. We describe its failure to do so, in spite of its extensive searches, as ‘service failure’.
32. The evidence suggests the Council found a suitable therapist, but failed to secure her services.
33. There appears to be fault by the Council in the arrangements it made.
34. The manager authorised the funding for the therapist, but only until the end of term. G’s EHC Plan is a legally binding document, and the Council is obliged to fund the therapy specified in it. Therapy can only be removed or changed by following procedures set out in legislation and regulations to review and amend G’s EHC Plan.
35. It was fault, therefore, for the manager to only fund the therapy until the end of term, and to require an updated report to continue funding into the next school year. The Council should fund the therapy for as long as it is specified in G’s EHC Plan.
36. The therapist said she took alternative work because she did not hear from the Council about continuing to provide G’s therapy in September 2023. This appears to confirm that the Council’s failure to act resulted in the loss of the only therapist able to meet G’s needs.
37. Where we find fault or service failure, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
38. The Council has offered payments to Ms M for the therapy G missed. In June 2023, the Council offered a payment of £1,350 for missed therapy and £250 for distress. In October 2023, the Council offered a further £675 for missed therapy from September to December 2023, and £325 for Ms M’s time and trouble pursuing her complaint.
39. G has still not received any of the therapy in her EHC Plan.
40. I will recommend a remedy for the injustice caused by the Council’s failure to secure G’s therapy. My recommendations are at the end of this statement.
41. I asked how the Council planned to secure the therapy in G’s Plan.
42. The Council said there were “issues around the use of independent Occupational Therapists writing provision into plans that is not offered by the NHS.” The Council said it then struggled to find professionals with the level of expertise and availability to deliver the provision in the plan.
43. The Council said “It is not clear where or who committed to paper that such highly qualified personnel was required to deliver [G’s] provision. The LA now feels that it is prudent to request a full re-assessment of need. Provision will be sought following this.”
44. The Council’s response concerns me since it does not appear to recognise the Council’s role and responsibilities.
45. The Council may receive advice from an independent occupational therapist, but the Council decides what provision is required to meet a child’s needs. EHC Plans are written by the Council, or the SEND Tribunal in the case of an appeal, not by independent occupational therapists.
46. The Council has a duty to meet a child’s needs. Councils must specify provision in section F of an EHC Plan for every need identified in section B. It is not relevant whether resources are available locally or not.
47. An EHC Plan is a legally binding document and the Council has a statutory duty to arrange the provision set out in the Plan. Plans are signed by an authorised officer. There should be no question about who committed the Council to the level of provision in G’s Plan.
48. The Council should only remove provision if it is no longer needed. The Council must follow procedures set out in legislation and regulations. Parents have a right of appeal to the SEND Tribunal if they disagree with changes the Council makes.
49. While I agree that a review of G’s EHC Plan is now overdue (see below), the Council does not appear to have a credible plan to secure occupational therapy for G. This is fault.

Complaint 2: reviews since 2021

50. Ms M complains the Council has not reviewed G’s EHC Plan since she joined her current school in 2021.
51. In her complaint to the Council, Ms M said she had not received a copy of G’s final Plan following a review meeting in December 2022. The Council said it did not usually send out copies of the final plan after a review if it decided not to make any changes. The Council said this was the case following the December 2022 review.
52. In response to my enquiries, the Council said that annual reviews are “delegated to the school”. The Council explained the school was behind on “a number of reviews” because of organisational changes. The Council said Ms M had cancelled a review meeting scheduled for November 2023.
53. The Council’s response concerns me, since it suggests the Council does not comply with legislation and regulations.
54. The Council cannot delegate reviews to the school. The Council can require the school to hold a review meeting, but the Council is responsible for reviewing the Plan in light of information provided by the school.
55. Regulations say the Council must notify the parent whether it intends to maintain the Plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The Council must notify the parent of their right of appeal to the SEND Tribunal if they disagree with the Council’s decision.
56. It does not appear the Council has complied with these regulations. The Council did not notify Ms M its decision following the December 2022 review meeting or inform her of her right of appeal. This is fault. The Council’s response leads me to believe that other families may be affected.
57. The Council did not say what it had done to re-schedule the review meeting it says Ms M cancelled in November 2023, or to review G’s EHC Plan. The review is now overdue. This is fault.
58. I uphold Ms M’s complaint the Council has not completed a review, in line with legislation and regulations, since G started at her current school in 2021.
59. The Council has proposed a review of G’s EHC Plan. I consider this would be a suitable remedy for the injustice caused. I would draw the Council’s attention to the legislation, regulations and government guidance it must follow concerning the conduct of reviews.
60. We can also make recommendations to ensure similar faults do not happen in the future. My recommendations are at the end of this statement.

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Agreed action

61. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Ms M and G, we may recommend the Council makes a symbolic payment.
62. The Council has failed to arrange the occupational therapy in G’s EHC Plan since she started at her current school in September 2021. This is fault.
63. After an exhaustive search, the Council identified a suitable therapist, but it failed to secure her services. This, too, is fault.
64. B has not received the occupational therapy required by her EHC Plan. Occupational therapy is central to G’s provision. It is required to help with sensory issues, maintaining focus, and fine and gross motor skills. The lack of therapy has had a significant impact on G’s education.
65. I am satisfied the Council has offered suitable payments to acknowledge the lack of provision, but it does not have a credible plan to secure the provision.
66. The Council has also failed to review G’s EHC Plan in line with the regulations since she started at her current school.
67. I recommended the Council:
• arranges the provision in G’s Plan without further delay;
• apologises for its failure to review G’s Plan each year and notify Ms M the outcome;
• undertakes a review, following all relevant legislation, regulations and government guidance, as soon as possible.
68. The Council should make the payments it offered before Ms M complained to us (set out in paragraph 38, above).
69. The Council should pay £1,350 for missed therapy between January and July 2024, and continue to pay £675 for each term it is unable to arrange the therapy in G’s EHC Plan.
70. Ms M tells me she has found a therapist who may be able to help. I recommended the Council contacts the therapist without delay.
71. The Council accepted my recommendations. The Council has contacted the therapist and is hopeful provision will be in place shortly.
72. I recommend the Council sends the apology and payment within four weeks of my final decision. The Council should provide us with evidence it has completed these actions.
73. We can also make recommendations to ensure similar faults do not happen in the future or affect other people.
74. I recommended the Council reviews its procedures for annual reviews to ensure they comply with all relevant legislation, regulations and government guidance.
75. The Council confirmed this work is already underway. The Council set out its plans, which include the creation of an 'annual review hub', more staff, and better communication with schools. I welcome these developments.

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Final decision

76. I have completed my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman