Summary: Mrs X complained the Council failed to provide the occupational therapy detailed in Section F of her child’s Education Health and Care Plan (EHC Plan). The Council provided no OT for a year and then failed to provide the OT in line with the provision in the EHC Plan. This had a detrimental impact on her child’s development and caused stress. The Council will apologise and make payments for the lost provision.

The complaint

1. Mrs X complains the Council failed to provide the occupational therapy (OT) detailed in section F of her child’s EHC Plan.
2. Mrs X says the lack of OT has had a detrimental impact on her daughter’s development and caused stress.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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 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)
5. 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)
6. 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 have and have not investigated

7. Mrs X complained to the Ombudsman in January 2024 so some of the matters raised are considered late. I have decided to exercise discretion to consider matters from January 2021 onwards. In reaching this decision, I have taken account of the delays in dealing with Mrs X’s complaints and the failure to progress annual reviews which would have given Mrs X an opportunity to raise the issue of the lack of OT provision.

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How I considered this complaint

8. As part of the investigation, 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;
• considered the relevant law, policy and guidance;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

EHC Plan 

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 

Reviewing EHC Plans

10. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
11. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
12. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Key facts

13. This section sets out the key events in this case and is not intended to be a detailed chronology.
14. Mrs X’s daughter, Z, was first issued with an EHC Plan in January 2021. The EHC Plan included at Section F the following OT provision:
• Three contacts a year of at least 20 minutes each carried out by an OT
• A programme package of OT intervention of up to three contacts per year to include:

• assessment/review,
• specific advice and training to school team working with Z,
• writing therapeutic programmes
• adapting and updating targets
• administration and liaison with other professionals
• school based contacts
• therapy team to be available to support school with implementing and progressing targets
• Z will have a consistent team of trained staff to carry out the daily therapy programme as advised by an OT. This will be provided by a teaching assistant/learning support assistant/higher learning teaching assistant and overseen by a qualified teacher. This provision will be delivered daily (throughout the day for at least 15 minutes)
• Z will be supported with daily practice of her therapy targets integrated within schoolwork
• School will provide Z with small pieces of sensory equipment as prescribed by therapists.

15. An annual review of the EHC Plan should take place within 12 months of the plan being issued. However, the annual review of Z’s plan did not take place until 3 November 2022. The Council says this annual review was not completed.
16. A further annual review took place on 2 November 2023. This review included a report from the OT which noted Z had made good progress and recommended Z would benefit from a block of six direct OT sessions. It said each session should be 60 minutes long. It said Z should be reassessed after the sessions to determine if further sessions are required.
17. It is my understanding the Council failed to progress the annual review in the statutory timescale and did not actually issue the amended EHC Plan until 12 December 2024. The final amended EHC Plan was issued on 27 January 2025. The Council says that based on the OT report from 2023, Z no longer required OT provision. It says however that it did not remove all the wording from the final EHC Plan it issued.
18. The Council failed to put provision in place following the issue of the EHC Plan in January 2021. It says that due to errors in communication and casework drift, it did not provide any OT before March 2022. An interim OT consultant reviewed Z’s needs which resulted in some support that the school was able to implement. However, this was not the statutory provision set out in Z’s EHC Plan.
19. The Council says that while it tried to find OT provision, there has been a continuous difficulty finding OTs across Kent. It says that it approached OT providers directly, but none were able to deliver the provision Z required. The Council did not secure the provision set out in Z’s EHC Plan dated January 2021 until January 2025, four years late.
20. Mrs X made a formal complaint to the Council in August 2023. While the Council sent an acknowledgement two days later, it did not provide the actual response until 1 March 2024. The Council says it did investigate Mrs X’s complaint but there was a delay in providing the response which then required it to conduct a further investigation to ensure the information was up to date. It also accepts it failed to keep Mrs X updated during the seven months the response was delayed.
21. Mrs X escalated her complaint to stage two of the complaint procedure on 11 March 2024. Again, the Council acknowledged receipt but did not provide a response until 22 August. It did however contact Mrs X in May and July to provide an update and apologise for the delay.
22. The Council accepted it had failed to meet its statutory duty and provide the provision set out in Section F of Z’s EHC Plan. It apologised and offered Mrs X a payment of £300 for the missed OT provision and a further £500 to acknowledge Mrs X’s time and trouble in pursuing the complaint. Mrs X has not accepted the payments offered.

Analysis

23. Councils have a duty to secure the specified special education provision set out in Section F of an EHC Plan. The provision should be in place from the date the final EHC Plan is issued. So, in this case the provision should have been in place from January 2021 but it was not actually provided until January 2025, four years later. This is fault.
24. I note the Council did act after one year in 2022 and this resulted in some OT provision for Z. However, this was not the actual provision required by the EHC Plan and so while the Ombudsman acknowledges the efforts made by the Council, the fault remained.
25. The Council is required to carry out an annual review of an EHC Plan within 12 months of it being issued. The Council failed to do so in this case. While it held an annual review meeting in November 2023, it did not complete the process until January 2025. This delay is fault. Even when it did issue the final amended EHC Plan in January 2025, it included some information it intended to remove. This was in respect of the OT provision. As the Council has not further amended this, it has a statutory duty to provide the provision stated. I consider this may have been confusing to Mrs X however; she had a right of appeal if she disagreed with the provision set out in Section F. I have not seen anything to suggest she exercised this right of appeal. I am not persuaded the inclusion of some information has caused Mrs X a significant enough injustice to warrant further action by the Ombudsman.
26. Mrs X tried to rectify the lack of provision by using the complaints procedure. The Council failed to progress Mrs X’s complaint within the timescales set out in its published procedure. The stage one response should be provided within 20 working days and the stage two response within a further 20 working days. In this case the stage one response took 125 days longer than it should have and the stage two response took 94 days longer than it should. This caused Mrs X further frustration and distress. I note the Council has offered Mrs X a payment to recognise the injustice caused by the delays. The £500 offered is in line with the amount the Ombudsman would recommend as a symbolic payment for distress.
27. The Council offered a payment of £300 for the loss of OT provision from January 2021 to November 2023. However, I consider the loss of provision is from January 2021 to January 2025. I am not persuaded the way the Council has calculated the amount is appropriate. It has based the amount on the cost of three 20-minute sessions and not the impact on Z. I note there was some effort to provide OT through the school, but this was not that specified in Section F of Z’s EHC Plan. I have therefore recommended below an appropriate remedy for the loss of OT provision.

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Action

28. To remedy the injustice caused as a result of the fault identified above, the Council will, within one month of my final decision, take the following action:
• Apologise to Mrs X for the fault identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
• Make Mrs X a payment, to be used for the benefit of Z, of £450 to acknowledge three terms of missed OT provision from January 2021 to January 2022;
• Make Mrs X a payment, to be used for the benefit of Z, of £900 to acknowledge nine terms of missed OT provision from January 2022 to January 2025. This lower payment takes into account the fact some provision, though not that specified in Section F of Z’s EHC plan, was provided;
• Make Mrs X a symbolic payment of £500 to recognise the distress caused and time and trouble in pursing the complaint.
29. The Council should provide us with evidence it has complied with the above actions.
30. In response to my enquiries, the Council has set out the actions it has already taken to improve its commissioning arrangements for OT. I have therefore decided it is not appropriate to make further service improvement recommendations.

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Decision

31. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman