Summary: Mrs B complained that the Council had not ensured that her daughter received the specialist occupational therapy set out in her Education Health and Care Plan. There was fault by the Council. It has not provided the therapy and has not communicated with Mrs B about this properly. This has caused Mrs B distress and frustration and means her daughter has missed out on the provision she needs to support her at school. The Council has agreed to make symbolic payments to Mrs B, and share an action plan as to how it will make sure K gets the therapy she is entitled to.

The complaint

1. Mrs B complains that the Council failed to:
• Make the provision set out in her daughter’s Education Health and Care Plan. Specifically, it has not provided the sensory integration occupational therapy ordered by the Tribunal.
• Communicate with her properly or keep in touch with her.
2. Mrs B says that although the Council has upheld her complaints about this, it has not resolved the issue. Her daughter has missed the occupational therapy she is entitled to and this has had a significant impact on her school attendance and wellbeing. The Council’s lack of communication and lack of progress has also put Mrs B to time and trouble pursuing matters with it.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
6. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
7. 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

The 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. 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. 
9. 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)  
10. 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

11. Mrs B’s daughter, K, has special educational needs. In the summer 2023, the Tribunal ordered that her EHC Plan should include occupational therapy (OT). The Council issued the new EHC Plan in July 2023. This included 12 sessions of specialist OT. The Plan also said the occupational therapist would devise a written programme of OT to be followed at school and home, liaise with parents and the school, and train school staff.
12. In February 2024, Mrs B complained to the Council that it had not arranged the specialist OT. She said she had chased this with various staff at the Council but the provision was still not in place.
13. The Council responded in March 2024. It said the school had alerted the Council that it could not arrange this type of specialist OT when the 2023 Plan was issued. However, due to an oversight, the Council had not arranged this. The Council consulted 12 occupational therapists to deliver the OT and securing this was in progress. The Council apologised to Mrs B for not making arrangements for the OT sooner. It offered Mrs B £400 in recognition of the missed provision to date.
14. The Council also found that Mrs B had emailed the key worker at the Council asking about the missed provision, and then chased for a response from management. The Council failed to reply to Mrs B. The Council again apologised to Mrs B for its failure to communicate with her.
15. The Council explained to Mrs B that it was investing extra funding into its EHC Plan service and will be recruiting significant numbers of front-line staff, increasing its capacity, and improving both EHC Plans and its communication with parents.
16. Mrs B asked the Council to consider her complaint at stage two of its procedure. In June 2024, the Council replied. It said that it had secured an occupational therapist to deliver K’s OT. However, the OT could not take place at the school and so it was looking for an alternative venue. The Council apologised for the further delay and offered Mrs B a further £150 in recognition of the missed OT sessions.
17. The Council also apologised that it was still not always responding to Mrs B’s emails in good time. It said it would contact her again by 12 June, and offered her £100 in recognition of the time and trouble the poor communication had put her to.
18. However, K’s OT was still not in place and the Council had not contacted Mrs B as promised and so, at the end of July 2024, Mrs B complained to the Ombudsman. By this stage, K had been without the OT she needed for a whole school year. Mrs B explained the OT was needed to help K understand her body and emotions and to develop her self-regulation. The lack of OT was significantly affecting K’s wellbeing and meant she was finding it hard to stay in school. Mrs B says she had been left to support K, and was spending time and energy she did not have chasing the Council with no response.
19. The Council concluded the annual review of K’s EHC Plan and issued a final EHC Plan in August 2024. There were amendments to this and the Council issued the current EHC Plan in October 2024.
20. The Council has committed to improving its special educational needs service. This is a comprehensive review of many aspects of the service and the Council has published an action and improvement plan. Relevant to Mrs B’s complaints, the Council has committed to train staff to improve effective communication with parents to keep them informed, respond to their concerns in good time, and resolve complaints at an earlier stage. It has also committed to increase the front-line staff and capacity.

Analysis

21. The Council made progress between March and June 2024: it found a therapist and needed to find a venue for the OT to take place. However, as of February 2025, there has been no further progress and the Council has not explained to me or Mrs B what it is doing to progress this. The Council has not shown me what it has done to try to source a venue for the OT. However in any case, it is responsible for making sure this provision is made and it has failed to do so.
22. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407).
23. This means that even if the Council has tried to arrange the provision, its failure to do so is fault.
24. The Council’s lack of response to Mrs B’s requests for help in 2023 and early 2024 meant that it overlooked that it had not arranged the OT when the school said it could not.
25. I asked the Council for case notes and it has not supplied these. The Council was also unable to give me some of the documentation I asked for because staff members had left or were on leave. It is not good administrative practice for the Council not to have access to parts of its files if staff are away or have left.
26. The Council has explained that developing how it handles data and information is part of its comprehensive review.
27. The EHC Plan said that as well as the direct OT sessions, the specialist OT would also write a programme for home and school to use in between sessions, liaise with both and train the school staff, update the programme, and contribute to the annual review. K also missed out on this programme of OT for use at school and home.
28. Mrs B has described that this has had a significant impact on K and her ability to stay in school, and I ammindful that this is essential OT ordered by a Tribunal.. The Council’s delay and poor communication has caused Mrs B distress and frustration over a prolonged period.
29. The Council had already offered Mrs B a total of £550 in respect of the missed OT sessions and it has calculated this at £50 per session missed. As it has failed to arrange the provision, the Council has offered a further £200 to reflect a further four missed sessions. The Council also offered to pay Mrs B a further £500 to recognise that not having an OT in place means that K has also missed out on important work to be done in between sessions and informing the reviews.
30. The Council’s offer is suitable in terms of remedying the missed provision. I also appreciate that the Council is working on a comprehensive review and improvement plan. However, for Mrs B and for K, a key issue is that she has been without the OT provision she is entitled to for nearly 18 months. The Council has given Mrs B no indication when this will be in place, nor shared any clear plan with Mrs B.
31. For this reason, I asked the Council to take further action to remedy the injustice to Mrs B and to K.

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Action

32. The Council will within one month of the date of the final decision:
• Apologise to Miss B. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay to Mrs B £750 in recognition of the missed OT sessions and £500 for the missed OT provision that would have supported the OT programme in school and at home, between September 2023 and January 2025. Mrs B may use this money to meet K’s needs as she sees fit.
• Pay to Mrs B £350 in recognition of the distress to her caused by the Council’s delay and poor communication (this includes the £100 already offered).
• Share with Mrs B an action plan setting out the steps the Council will take to progress the OT provision.
33. The Council will within three months of the date of the final decision:
• Share this decision with the relevant staff and advise the Partnership Assurance Board overseeing its Improvement Plan aware of the key anonymised details of this case; and
• Issue a bulletin to relevant staff, reminding them of the process of saving records and the importance of doing so, across the service.
34. The Council will continue to pay Mrs B £50 each calendar month that K is without the OT provision, for a period of six months.
35. If the Council is unable to make the OT provision within six months, it should form an updated action plan as to how it will make the provision and how it intends to help K catch up on the missed provision.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman