Summary: We upheld Ms X’s complaint about the failure to secure occupational therapy provision on her child Y’s Education, Health and Care Plan. The payment of £3900 and apology the Council has offered for two years of missed provision are a partial remedy. The Council will review its commissioning arrangements and arrange for the therapist delivering Y’s provision to receive the specialist training required.

The complaint

1. Ms X complained the Council did not secure occupational therapy (OT) provision on her child Y’s Education Health and Care Plan. She also complained about poor communication.
2. Ms X said the Council’s failings caused avoidable distress, time and trouble and a loss of special educational provision.

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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 of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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. Ms X complains about a lack of provision between August 2022 and July 2024. Her complaint to us was June 2024. Matters before June 2023 are late, but I have investigated them because there is ongoing fault and injustice. There is also evidence indicating Ms X’s contacts with the Council were ignored. I am satisfied she was trying to resolve her complaint directly with the Council and this is a good reason for her delay contacting us.

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How I considered this complaint

8. I considered the complaint to us, the Council’s responses to the complaint and documents set out later in this statement. I discussed the complaint with Ms X.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

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 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 2014). 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)  
12. 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. 

What happened

2022

13. The Tribunal ordered the Council to issue an amended EHC Plan for Y in July.
14. The Council issued an amended Plan in August. OT provision in Section F says:
• Y will use therapeutic listening to support her sensory modulation and bilateral skills (this is a specialist sound-based intervention).
• Y will have fortnightly 45-minute direct sessions of OT over a 12-week period; with 15-minute indirect sessions for discussion with school.
• There will also be 12 hours a year for planning, staff training, report writing and so forth (indirect work).
• Provision must be with a specialist OT with training in sensory integration, therapeutic listening and cognitive orientation.

2023 and 2024

15. Ms X complained to the Council at the end of November 2023. She said Y had not been getting OT provision, despite the school trying to sort this out. She said she had emailed the Council lots of times with no response.
16. The Council responded to Ms X’s complaint saying it was sorry for poor communication, apologised for the (slight) delay in amending the Plan following the Tribunal’s order and apologised for the failure to secure OT provision. It offered £1000 to reflect missed OT provision.
17. Ms X was unhappy with the response and escalated her complaint. The Council’s second stage response in June 2024 increased the payment to £3900 to cover missed OT provision between July 2022 and July 2024. It recommended provision is secured from September.
18. The OT commissioned to deliver Y’s provision from September said in an email that she was not trained in therapeutic listening, but there was a colleague in her team who was trained and could provide support.

Findings

19. The Council is at fault. It has a duty to secure all provision on Y’s EHC Plan. It failed to do so. The Council has offered a payment to reflect lost provision between 2022 and 2024. Our Guidance on Remedies suggests a range of £900 to £2400 per term for loss of educational provision and goes on to say missed therapeutic provision is likely to be lower than this range. Y missed 30 sessions between 2022 and 2024 and there was also no indirect input from the OT as set out in the Plan. Y lost 6 terms of OT, for which the Council has offered the equivalent of £650 a term. The payment the Council offered is in line with our guidance.
20. The OT secured to deliver Y’s provision does not have the specialist training in therapeutic listening specified in the Plan. The Council needs to secure all the provision in Section F, even when it is highly specialised. It has not done so. This is a further fault causing a loss of educational provision.
21. The Council accepted in its complaint response that its communication was poor and this was a further fault causing avoidable frustration. The apology is an appropriate remedy.

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Agreed action

22. As set out in paragraphs 19 and 21, the payment the Council has already recommended for lost provision is appropriate and the apology for poor communication is an appropriate action to remedy the frustration caused.
23. The Council will within two months of my final decision:
• Arrange for the OT to receive the therapeutic listening training they need to deliver Y’s OT provision. Or commission an OT who is appropriately trained.
• Review its commissioning arrangements generally to ensure they can meet current demand for OT provision.
24. The Council should provide us with evidence it has complied with the actions in the previous paragraph.

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Final decision

25. We upheld Ms X’s complaint about the failure to secure occupational therapy provision on her child Y’s Education, Health and Care Plan. The payment and apology the Council has offered for two years of missed provision are a partial remedy. The Council will review its commissioning arrangements and arrange for the therapist delivering Y’s provision to receive the specialist training required.
26. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman