Summary: the Council failed to amend Mr F’s daughter G’s Education, Health and Care (EHC) Plan to name her school following an order from the SEND Tribunal over a year ago. The Council has not completed the re-assessment of G’s needs it agreed to undertake, and G has not received any occupational therapy (OT) in her Plan since the conclusion of Mr F’s appeal. The Council has agreed a remedy for the injustice this caused.

The complaint

1. Mr F complains his daughter, G, has not received the occupational therapy (OT) specified in her Education, Health and Care (EHC) Plan since 23 June 2022.
2. He complains the Council has not named G’s current school in her EHC Plan despite an agreement reached during his appeal and set out in a consent order dated 8 November 2023.
3. He complains the Council has not amended G’s EHC Plan in light of recommendations in the OT assessment the Council commissioned following his appeal.

Back to top

The Ombudsman’s role and powers

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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. Once 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).

Back to top

How I considered this complaint

7. I considered information provided by Mr F and the Council. I invited Mr F and the Council to comment on my draft decision.

Back to top

What I found

8. Mr F’s daughter, G, has an education, health and care (EHC) plan maintained by the Council. The Council issued the Plan on 23 June 2022.
9. The Plan said G would attend the nearest state-funded mainstream school.
10. Mr F disagreed with G’s Plan and appealed to the SEND Tribunal.
11. He enrolled G at an independent school in September 2022.
12. Mr F’s appeal concluded with a consent order dated 8 November 2023. The Council agreed to name the independent school in G’s Plan.
13. The Council also agreed to commission an Occupational Therapy assessment.

Mr F’s complaint to the Council

14. Mr F complained to the Council on 20 March 2024. The Council had not named the independent school in G’s Plan and had not commissioned an OT assessment.
15. The Council responded at the first stage of its complaints process on 5 April 2024.
16. The Council acknowledged there had been delays commissioning an Occupational Therapist to undertake an assessment and apologised, although it said not all the delays were the fault of the Council.
17. Unhappy with the Council’s response, Mr F asked the Council to respond at the second stage of its complaints process.
18. The Council responded on 20 May 2024. The Council said it hoped to receive a report from the Occupational Therapist in the next two weeks. The Council said it would update G’s EHC Plan and ensure there was a catch-up plan for the OT G had missed. The Council offered a payment of £500 for Mr F’s time and trouble pursuing his complaint.
19. Unhappy with the Council’s response, Mr F complained to us on 28 June 2024. He said G was not receiving the OT in her Plan, and the Council was not responding to his telephone calls and emails.

Developments since Mr F complained to us

20. Papers provided by the Council show a ‘panel’ considered the recommendations of the OT assessment in early September 2024. The Panel declined to add specialist OT to G’s EHC Plan or increase funding to G’s school to support OT. The panel agreed 9 sessions per year, but noted G would remain on the waiting list for ‘allocation’ because the OT service was ‘at capacity’.
21. Mr F disagrees with the panel’s decision. He wants the Council to arrange the specialist OT recommended by the assessment the Council commissioned following his appeal to the SEND Tribunal.
22. Mr F complains the Council has still not named the independent school in G’s Plan as agreed in the November 2023 Consent Order.

Consideration

23. I have considered events in the order in which they should have happened following the conclusion of Mr F’s appeal with a consent order on 8 November 2023. I have explained the reasons I have not considered what happened before the conclusion of Mr F’s appeal below.

Naming G’s school in her EHC Plan

24. The Council agreed to name G’s school in her EHC Plan. The agreement is set out in the consent order made by the Tribunal on 8 November 2023.
25. When an order requires a council to change the name of a school in an EHC Plan, it must do so and issue an amended Plan within two weeks of the order.
26. In response to my enquiries (January 2025), the Council said it had not yet issued a Plan naming the school as ordered by the Tribunal in November 2023.
27. The Council should have issued a Plan naming the independent school by 22 November 2023. Its failure to do so is fault. At the time of writing, the Council is more than 62 weeks late.

Reviewing and amending G’s Plan

28. As part of the agreement reached to conclude Mr F’s appeal, the Council agreed to commission an Occupational Therapy assessment.
29. An Occupational Therapist carried out the assessment on 4 April 2024 and produced a report with recommendations dated 20 May 2024.
30. In response to my enquiries (January 2025), the Council explained the provision recommended was ‘more detailed and intensive’ than provision usually provided by the Council. It included sensory integration therapy which the Council said is not funded locally. The Council said it was working on a new draft Plan and was awaiting confirmation from its OT service about the recommendations in the independent report the Council commissioned.
31. The Ombudsman does not decide how much or what sort of OT G needs. I have neither the authority nor the expertise. This is the Council’s job. My role is to check the Council followed the correct procedures.
32. I have not seen the agreement the Council made with Mr F to conclude his appeal, but regulations say that if the Tribunal orders the Council to assess or reassess a child’s needs and the Council agrees to make provision, the Council must issue a final Plan within 14 weeks of the Tribunal agreement.
33. By agreeing to commission an OT assessment, the Council effectively agreed to reassess G’s needs. The Council should have issued a final Plan by 14 February 2024 at the latest. At the time of writing, the revised Plan was, therefore, more than a year late. This is fault.
34. For completeness, I should also add that the Council is required to specify the provision it decides is necessary to meet a child’s needs in the Plan. The availability or otherwise of the provision locally is not a relevant consideration.

Delivering the OT provision in G’s Plan

35. I have considered the delivery of the OT in G’s Plan from the conclusion of Mr F’s appeal.
36. The June 2022 Plan set out the occupational therapy G was to receive at school. The Plan said G would attend a state-funded mainstream primary school. Mr F enrolled G at an independent school. In these circumstances, the Council is not obliged to arrange the special educational provision in G’s Plan.
37. Mr F asked the SEND Tribunal to name the independent school in G’s Plan so the Council would be obliged to arrange the special educational provision in the Plan.
38. The Council agreed to name the independent school and the Tribunal made an order on 8 November 2023. As noted above, the Council should have named G’s school in her EHC Plan within two weeks of the Tribunal decision. It should then have arranged the special educational provision in the Plan straight away.
39. In response to my enquiries (January 2025), the Council said:
• G has not received any of the OT in her June 2022 EHC Plan;
• the Council’s OT service is ‘at capacity’ and G is on a waiting list;
• the Council was working on a new draft Plan and was awaiting confirmation from its OT service about the recommendations in the independent report the Council commissioned.
40. G has not received any of the OT in her Plan. This is fault. The Council should have arranged the provision in the June 2022 Plan within two weeks of the conclusion of Mr F’s appeal in November 2023.

Conclusions

41. The Council did not issue a final Plan naming the independent school by 22 November 2023. This is fault. At the time of writing, the Council had not yet issued the Plan which was 62 weeks late.
42. The Council has not reviewed G’s EHC Plan in light of the OT assessment it commissioned following Mr F’s appeal. As the Council intends to amend G’s Plan, the Council should have issued a final Plan within 14 weeks of the Tribunal agreement. That would have been 14 February 2024. At the time of writing, the revised Plan was, therefore, 50 weeks late. This is fault.
43. G has not received any OT, not even the OT in the 23 June 2022 Plan. This is fault. The Council should have arranged the provision since 22 November 2023.
44. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
45. In his correspondence with the Council, Mr F described the impact of the faults on his family. He asked the Council to pay considerable compensation, both for the impact on G of the OT she has missed, and for the impact on his family.
46. I have no doubt the impact on G has been significant. G has sensory processing difficulties, and OT is required to help both with regulation and independence in activities of daily living.
47. Mr F’s dealings with the Council have clearly caused him considerable frustration and I do not doubt there has been an impact on other members of his family.
48. My recommendation are set out below.

Back to top

Agreed action

49. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Mr F and G, we may recommend the Council makes a symbolic payment. We do not award compensation in the way a court might.
50. Within six weeks of my final decision (unless otherwise stated) I recommend the Council:
• apologises to Mr F for the faults I have identified;
• complies with its obligations arising from Mr F’s appeal without further delay by completing the re-assessment and issuing a final Plan which names G’s school;
• offers a symbolic payment of £3,000 to acknowledge the impact on G and her education of the OT she has missed since 22 November 2023;
• produces a catch-up plan for the OT G had missed once it has issued a final Plan; and
• offers a symbolic payment of £1,000 (in addition to the £500 the Council has already offered) to acknowledge the significant frustration and distress caused to Mr F and his family.
51. We can also make recommendations to ensure similar faults do not happen in the future.
52. Within 12 weeks of my final decision, I recommend the Council works with its partners in the OT service to analyse what went wrong following the conclusion of Mr F’s appeal in November 2023 and explains to us what steps it will take to address any problems the Council identifies.
53. The Council should provide us with evidence it has complied with the above actions.
54. The Council accepted my recommendations.

Back to top

Final decision

55. I have completed my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman