Summary: Mrs X complained the Council has failed to provide the therapies outlined in her child’s education, health and care plan and it failed to provide her with her right to appeal. The Council has acknowledged it is at fault and it has agreed to provide Mrs X with a remedy payment to acknowledge the avoidable distress caused.

The complaint

1. The complainant, Mrs X, complains the Council has failed to provide the therapies outlined in her child’s education, health and care plan. Mrs X also complains the Council failed to provide her with her right to appeal.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I considered Mrs X’s complaint and the information she provided.
6. I considered the information I received from the Council in response to my enquiries.
7. Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered their comments before making this final decision.

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What I found

Relevant law and guidance

8. 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.
9. The EHC Plan is set out in sections which include Section F (the special educational provision needed by the child or the young person).
10. Councils have a duty to make sure children receive the special educational provision set out in section F of their EHC Plans (Children and Families Act 2014, section 42).
11. The duty to arrange this provision is owed personally to the child and is non-delegable. This means if a 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).
12. The Ombudsman’s guidance on remedies says we do not punish councils in the way a court might. This means we do not award ‘damages’ or ‘compensation’. Instead, we can ask a council to make a payment to ‘symbolise and acknowledge’ the distress someone suffered because of what it did wrong.
13. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2400 per term to acknowledge the impact of that loss.
14. Financial remedies for other missed provision, such as speech and language therapy, are likely to be lower than those for lost educational provision.

What happened

15. Mrs X has a child, Y, who has an education, health and care (EHC) Plan maintained by the Council. The Council issued a final EHC Plan for Y in February 2023. In Section I of the Plan, the pre-school he was attending was named.
16. In June 2023, the Council issued an amended EHC Plan naming School 1, a mainstream primary school, in Section I. Y’s placement at School 1 was scheduled to start in September 2023. Y began his placement at School 1 in September 2023.
17. Advice from a Speech and Language Therapist (SaLT) was incorporated into Section F of Y’s EHC Plan for school staff to deliver. Section F also contained provision to be delivered by an Occupational Therapist (OT).
18. The NHS OT Service advised the Council that there were certain aspects of the provision specified in Y’s EHC Plan that they were unable to deliver as part of their core offer. The Council decided to commission those aspects of the OT specified in Y’s EHC Plan that the NHS were unable to deliver.
19. In October 2023 Mrs X complained to the Council that Y had not received the OT provision as outlined in his EHC Plan since September 2023.
20. The Council sent a referral for the OT provision at the end of November 2023. It says the timing of the finalisation of Y’s EHC Plan missed the cut-off date for referrals to be sent.
21. The Council responded to Mrs X’s complaint in November 2023. It said it would raise an involvement to commission the OT specified in Y’s plan to begin in the Spring term 2024. The Council apologised for the delay.
22. In January 2024, the Council confirmed it had sent the referral and OT provision should begin towards the middle of February 2024 following the half term break.
23. Mrs X was advised the OT provider would contact her by 28 March 2024.
24. In April 2024 Mrs X contacted the Council again to say that Y still had not received the OT provision. Mrs X said she was going to proceed with her request for a judicial review of the matter.
25. The Council then proceeded to provide the outstanding OT provision to Y during the Summer term in 2024.

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Analysis

26. The Council failed to provide OT provision to Y from September 2023 and in accordance with his EHC Plan. This is fault.
27. On at least two occasions Mrs X was given a timeframe by when the OT provision would be arranged but this did not happen. This caused frustration and uncertainty to Mrs X. I acknowledge the Council was chasing the provider and the timeframes were dictated by them but we still regard the Council at fault because the company was providing a service on the Council’s behalf.
28. The Council acknowledged that there was a delay in the delivery of Y’s therapies provision and it has already apologised to Mrs X in a complaint response. Since the Ombudsman has received the complaint from Mrs X, the Council has advised that it has delivered the therapies in full over the Summer term 2024.
29. I understand Mrs X secured some OT provision privately and paid for it herself. I cannot recommend the Council reimburse her with the cost of this because the Council has provided the provision to Y, albeit delayed. I can, however, recommend the Council acknowledge the delay and the impact this had on Mrs X and to Y.
30. I have found the Council at further fault for not providing Mrs X with her right to appeal to the SEND Tribunal when it should have. This was due to an administrative error. The fault delayed Mrs X’s appeal rights and caused distress.
31. The Council is currently in the process of making service improvements with regards to providing provision outlined in EHC Plans. These service improvements were recommended by the Ombudsman. For this reason and to avoid duplication, I have not made any further recommendations for service improvements.

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Agreed action

32. To remedy the injustice caused by the faults identified above, the Council has agreed that within four weeks of this final decision, it will:
• Pay Mrs X £250 to acknowledge the impact on Y and the avoidable distress caused by the delay in arranging the OT provision as outlined in his EHC Plan.
• Pay Mrs X £200 to acknowledge the avoidable distress caused by the administrative error that frustrated her appeal rights.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. The Council is at fault, and this caused avoidable distress. It has agreed to remedy the injustice caused. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman