Summary: Miss Q complained the Council failed to provide occupational therapy to help meet her child R’s special education needs from September 2023 which caused ongoing uncertainty and distress. The Council accepted fault which caused injustice. The Council has agreed to apologise and make symbolic payments to Miss Q to reflect the injustice caused.

The complaint

1. Miss Q complains about the Council’s failure to deliver the occupational therapy provision detailed in the Education, Health and Care plan of her daughter, R. In particular she complains the Council:

• Failed to arrange occupational therapy from the start of R’s school year 11 in September 2023.
• Did not arrange any catch-up occupational therapy sessions to help R prepare for the transition to post-16 education.
• Did not effectively communicate with her about the ongoing lack of provision.

2. Miss Q says the failure has had a significant negative impact on R when doing her GCSEs and preparing for the transition to college.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The Ombudsman’s view, based on caselaw, 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. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. We must also consider whether any fault has had an adverse impact on the person making the complaint. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, 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 Miss Q about her complaint and considered the information she sent.
9. I considered the Council’s comments about the complaint and the supporting documents it provided.

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What I found

What should have happened

10. 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.
11. The EHC Plan is set out in sections which include Section F: The special educational provision needed by the child or the young person. 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. 
12. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)
13. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

The Occupational Therapy Provision in R’s EHC Plan

14. The Council issued two amended final EHC Plans for R during the relevant period, on 19 April 2023 and 27 March 2024. Both plans include the same occupational therapy (OT) provision in Section F:

Direct Occupational Therapy Provision:

• Six direct one-hour sessions (one per half-term) to review progress, set new goals and model new activities.
• A review of R’s OT needs to take place in line with her school year 10 annual review meeting.

Indirect Occupational Therapy Provision:

• A one-off staff training session to ensure all staff working with R have an up-to-date understanding of her OT needs to support her transition into school year 10.
• One hour of non-face to face time per term, to update R’s programme and OT goals.
• An updated OT report for R’s annual EHC review meeting.
• Up to 90-minutes to attend R’s annual review meeting.

What did happen

15. The Council contracts its children’s services to a third party organisation (a not for profit social enterprise). I will refer to this organisation as the Council’s contractor.
16. On 4 and 13 July 2023 R's OT therapist emailed Miss Q because she could no longer work with R. She said she had informed the Council’s contractor. The Council subsequently said it did not receive the information at the time and therefore did not know that sourcing a new therapist was a required action.
17. On 4 September 2023 R started year 11 at her school. There was no OT provision when she started because her previous therapist had left and the Council had not secured a replacement.
18. On 19 September 2023 Miss Q complained to the Council about the absence of OT provision for R. This was a stage one complaint.
19. On 10 October 2023 the Council’s contractor commenced efforts to find a new therapist for R. It contacted two OT service providers and asked if they had capacity to deliver the provision in R's EHC Plan. Both service providers replied that they did not.
20. On 16 October 2023 the Council’s contractor responded to Miss Q's stage one complaint. It upheld the complaint it had failed to provide the OT provision specified in R's EHC Plan. It said it had begun the process of finding a new therapist to work with R. It acknowledged fault for failing to pick up R’s previous therapist had said she was leaving and apologised.
21. On 7 November 2023 the Council held a review meeting for R's EHC Plan. The records note that OT provision had yet to begin for R in school year 11, the Council hoped it would begin soon and her case worker was working on it.
22. On 6 February 2024 Miss Q complained to the Council again. This was a stage 2 complaint. She said that despite her complaint and the response in October 2023, the Council was still not providing OT therapy for R. She told the Council that R had missed 7 months of OT provision since September 2023.
23. On 11 March 2024 the Council responded to Miss Q's stage 2 complaint. It accepted fault in failing to deliver OT provision in R’s EHC Plan. It said it used an “Approved List of Therapy Providers” from its local NHS Integrated Care Board (ICB). It said its contractor had exhausted the list when it had contacted the two providers in October 2023.
24. The Council said its contractor referred the matter to the ICB to formally notify them of the need for a provider and remained in regular dialogue with it.
25. The Council also said it would be happy to consider any OT provider Miss Q might be aware of (subject to vetting).
26. The Council offered Miss Q a remedy of £300 for ongoing harm, £250 for distress and frustration and £100 for time and trouble.
27. On 25 March 2024 Miss Q complained to the Ombudsman.
28. On 1 July 2024 the Council’s contractor emailed one of the OT service providers previously contacted and again asked if it had capacity. It did not.

Analysis

29. The Council has accepted fault for failing to secure the OT provision in R’s EHC Plan since September 2023. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure.
30. The Council’s contractor initially contacted two OH service providers on the ICB’s list who did not have capacity. It later said it would consider any provider Miss Q could identify (subject to vetting). My view, therefore, is that the Council was aware that there might be suitable and available OT providers not on the list and that it was not bound by the list. I consider it should have approached other OT providers sooner.
31. The Council’s contractor referred the matter to the ICB and I accept the Council’s reference to the local and national shortage of OT provision. However, as noted in paragraph 12, the law is clear that councils have a non-delegable duty to make the provision set out in section F of an EHC Plan. This means the Council, not the ICB, remained liable in this case.
32. I therefore find there was service failure as I have set out in paragraph four above, which has caused Miss Q and R distress, uncertainty and frustration. This injustice is significant as the failure to provide OT was at a crucial period in R’s education, when studying for exams and preparing for post 16 education, and the injustice is ongoing as the provision is still not in place.
33. In 2022, the Council agreed to remind staff to put in place provision outlined in EHC Plans. It is therefore disappointing that it has failed to do so in this case.
34. In respect of communication, the Council provided detailed written responses to Miss Q’s formal complaints. However, I have not seen evidence the Council has kept Miss Q updated on its efforts to secure OT provision for R. I find the Council at fault for not providing Miss Q with regular updates causing injustice in the form of frustration

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Agreed action

35. Within four weeks of the final decision, the Council will:

• Apologise to Miss Q for its ongoing failure to secure the OT provision for R, and not regularly communicating its actions to resolve the matter. This should be in line with our advice on making effective apologies, published in our guidance on remedies.
• Provide Miss Q with an update on the steps it has taken to secure R’s provision detailed in Section F of her EHC Plan.
• Agree to provide Miss Q with monthly updates for any period thereafter that provision remains outstanding.
• Pay Miss Q £2700 (£900 for each of the three whole school terms that R has been without OT provision), and £300 for distress and frustration caused to date.

36. Within 2 weeks of the end of each half school term that R is without the OT provision for her current school year, the Council will pay Miss Q a further £450. If the Council has not secured the OT provision for R at the end of this period, Miss Q will be entitled to complain to us again.
37. We recommend Miss Q uses payments for the missed OT provision for R’s educational benefit.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman