Summary: Ms X complained the Council did not provide the occupational therapy it had assessed her child needed, for eight months. She says the Council also failed to implement suitable alternative education although it was aware the child was not attending school. We found the Council at fault for the delay in providing occupational therapy. The Council agreed to make payments to Ms X and to her child in recognition of the injustice caused.

The complaint

1. Ms X complains the Council is not providing the assessed Occupational Therapy (OT) provision in her child’s Education Health and Care (EHC) Plan. She also complains the Council has not provided suitable education for her child, who has not attended school for a significant time.
2. Ms X is seeking suitable alternative education provision for her child, including the OT provision in the plan.

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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 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)
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. I have not investigated anything which happened before July 2023, as it is out of time.

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How I considered this complaint

8. I have considered information provided by the Council and Ms X, alongside the relevant law and guidance.
9. Ms X and the Council had an opportunity to comment on a draft decision before this final decision was made.

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What I found

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. The EHC Plan is set out in sections. 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.
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).
12. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
13. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013).
14. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017).
15. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
17. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

18. Ms X’s child, A, has special educational needs, and has an EHC plan in place.
19. A has struggled to access education and Ms X has raised several complaints to the Council in relation to this. This investigation does not go further back than July 2023.
20. Ms X complained to the Council in July 2023, and did not receive a response until October 2023.
21. The Council issued an EHC plan in March 2024, which named a mainstream school for A.
22. Ms X notified the Council that A was unable to attend the school because of his health needs, in April 2024.
23. The Council put three full days a week at an alternative educational provider in place for A.
24. In June 2024, the Council added a weekly session at another provider to A’s provision.
25. In July 2024, the Council issued a new EHC plan addressing A’s need for education otherwise than at school. This plan specified that A should receive 12 hours of occupational therapy over the following year.
26. From September 2024, the Council added tuition to the alternative provision offered to A since April 2024.
27. The Council continued to fund the sessions at the alternative education provider it had provided since April 2024, although A has not attended this since September 2024.
28. The Council has been in communication with Ms A and has considered adding further provision as requested.
29. The Council accepts it agreed to provide 12 hours of occupational therapy to A from July 2023 and did not do so until March 2024.
30. The EHC plan of July 2024 set out a package of education otherwise than at school which was to include twelve hours of occupational therapy throughout the following year. The Council confirms that this has been commissioned.

Analysis and Findings

31. The Council took the appropriate steps to ensure A was given the most suitable education provision once it became aware that the school it had named could not meet A’s needs. It put some provision in place quickly and issued a new EHC plan as it was evident the existing plan was not suitable for A.
32. Although the package provided does not amount to the number of hours A would receive at school, this is not necessary.
33. I have seen the Council has been flexible in its approach to the package in place and has taken on board Ms X’s feedback on how each provision is working for A. It has kept some sessions in place so A has the option of attending, and has looked into other sessions as requested by Ms X.
34. As A’s needs and ability is likely to fluctuate, this is an appropriate approach to the provision. I do not consider the Council is at fault here as it has put education in place for A, and has added to its package as A’s needs and ability to take on more have changed.
35. However, the package should have included twelve hours of occupational therapy, and this was not provided for eight months. This delay is fault.
36. Ms X has been caused distress and worry that her child is out of school and not having their needs met. A has also suffered the injustice of missing out on provision that the Council had accepted A needed.
37. The Council’s policy says its response to Ms X’s complaint of July 2023 should have been provided within 20 days. This was not done and is fault. The delay here meant Ms X’s concerns about her child’s education was not dealt with for an unnecessarily lengthy period. This two month delay is reflected in the remedy I have recommended.

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Agreed action

38. Within one month of the decision, the Council will:

• Make a payment of £400 to Ms X;
• Make a payment of £400 to the child;

The Council made a payment of £200 during its internal consideration of the complaints, so this should be deducted from this remedy.

The total payment to be made is therefore £600.

39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I found the Council is at fault and has caused an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman