Summary: Miss X complained the Council failed to secure the special educational needs provision in her child D’s Education, Health, and Care plan. The Council was at fault because it failed to secure the provision in the Plan, which caused D to miss special educational needs provision. It also caused avoidable distress to Miss X. The Council agreed to apologise and pay a financial remedy. It will also review what happened in this case and produce an action plan to prevent similar issues in future.

The complaint

1. Miss X complains the Council failed to deliver special educational needs provision set out in her child D’s Education, Health, and Care (EHC) Plan, issued in November 2023. Because of this she says D missed provision they needed, fell behind in school, and experienced distress and anxiety. Miss X wants the Council to ensure D’s EHC Plan is in place without delay.

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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)

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How I considered this complaint

4. I considered:
• information provided by Miss X and discussed the complaint with her;
• documentation from the Council;
• relevant law and guidance; and
• the Ombudsman’s guidance on remedies.
5. Miss X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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 found

Legislation and guidance

Education Health and Care (EHC) Plans

7. A child with special educational needs (SEN) may have an Education, Health, and Care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them.

Duty to secure EHC Plan provision

8. 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)  

What happened

9. In September 2023, D started year 7. They had an EHC Plan in place. In November 2023, the Council issued an amended EHC Plan for D.
10. In February 2024, Miss X complained to the Council because Occupational Therapy (OT) provision set out in the November 2023 Plan was still not in place. The Council responded at Stage 1 of its complaints procedure three weeks later. It accepted it was at fault, and said the issue was a lack of capacity in OT providers in its area. It apologised and said it was searching for an OT provider and would keep Miss X updated. Miss X escalated her complaint to Stage 2.
11. In April 2024, two months after Miss X escalated her complaint, the Council responded at Stage 2. It said it was continuing its search for an OT provider and would keep Miss X updated.
12. Miss X came to the Ombudsman two months later, in June 2024. She said the OT provision was still not in place. D started year 8 in September 2024. At the time of this final decision, the provision is still not in place, but has been arranged and is due to start by the end of November.

My findings

13. The November 2023 EHC Plan said the Occupational Therapy (OT) provision D should receive is as follows.
• 5 one-hour sessions of direct OT per term, delivered by an experienced suitably qualified OT. Each hour allocated should comprise of 45 minutes for a direct session with D, and 15 minutes for the OT to feed back to school staff.
• OT to devise an OT programme including sensory strategies, sensory equipment needs, and adaptation needs. This programme should be delivered throughout the school day by class teachers and teaching assistants. 3 hours should be allocated to the OT for this work across the year, with 1 hour to develop the programme, then a further hour to review it each term.
• 3 hours allocated to the OT across the year to train school staff. All staff working with D must have this training.
• 3 hours allocated to the OT across the year to contribute to and attend the annual review of D’s EHC Plan and write reports.
14. D’s EHC Plan sets out the special educational provision they must receive. The Council had an immediate duty to ensure the provision in the Plan was in place, under section 42 of the Children and Families Act.
15. In responding to Miss X’s complaint, the Council accepted the OT provision was not in place. It said this was due to a lack of capacity in OT providers in its area. The failure to secure the provision in the Plan was fault. At the time of my decision, the OT provision is still not in place. This caused injustice to D because of the missed provision, and distress to Miss X. The Council should remedy the injustice caused.
16. As set out in our guidance on remedies, where we find fault has resulted in loss of educational provision (for example where a child is out of school), we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. Where there has been a loss of SEN provision to support their education, such as direct therapies, the level of financial remedy is likely to be lower than that for loss of educational provision. We consider the level of SEN provision missed and the impact of this on the child.
17. In deciding a suitable financial payment to recognise the impact of D’s missed SEN provision, I considered the following.
• D was in years 7 and 8 of secondary school. As set out in our guidance on remedies, we consider the first year of secondary school to be one of the more significant periods in a child’s school career.
• D did not receive any of the OT provision set out in the Plan. This included direct OT therapy, and a specially devised programme to be delivered throughout D’s school day, with training given to school staff. This had a significant impact on D’s ability to access and engage with their education.
18. Based on this, I decided the Council should provide a remedy of £700 per term of missed OT provision, for the three terms missed from November 2023 to November 2024. If the provision is not in place by the end of November 2024 as planned, it should also provide an ongoing payment of £50 per week until the provision is in place.

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Agreed action

19. Within one month of our final decision the Council will:
1. apologise for the faults identified and the impact of those faults on the family. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology; and
2. pay Miss X a total of £2,400 comprising of:
1. £2,100 to recognise the three terms of SEN support D missed from November 2023 to November 2024. This is intended for D’s future educational benefit; and
2. £300 to recognise the avoidable distress caused to Miss X.
20. If the OT provision in D’s EHC Plan is not in place by the end of November 2024 as planned, the Council will continue to pay Miss X £50 per week from the start of December 2024, until it is in place. It will make this ongoing payment in monthly instalments. The Council will provide us with an update and evidence about this ongoing payment within three months of our final decision.
21. Within three months of our final decision the Council will review what happened in D’s case and produce an action plan, with dates, of steps it needs to take to prevent similar issues in future. As part of this review, it will specifically consider:
1. if there were avoidable delays in searching for an Occupational Therapy provider which should be addressed by changes to administrative processes, or staff training; and
2. if there are steps it should take to address any issues with Occupational Therapy capacity in its area.
22. The Council will provide us with evidence it has complied with the above actions.

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Final decision

23. I have completed my investigation. There was fault by the Council which caused D to miss special educational needs support, and avoidable distress for Miss X. The Council agreed to our recommendations to remedy this injustice. It will also review what happened in this case and produce an action plan to prevent similar issues in future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman