Summary: Ms X complained the Council failed to secure provision in Section F of her child’s Education, Health and Care (EHC) Plan. While a few visits were missed, we have not identified a significant injustice linked to fault by the Council. The Council has agreed to apologise for the service failure of three missed visits.

The complaint

1. Ms X complained in Spring 2024 the Council had failed to deliver the occupational therapy (OT) as specified in her child’s Education, Health and Care (EHC) Plan since September 2023. Ms X says the therapist did not have post-graduate training in sensory processing, or set up a sensory diet, or review the sensory programme as the Plan required.

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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. 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.
3. 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)
4. We provide remedies for injustice, not compensation, punishment or fines. To suggest a remedy there must be a causal link between fault by the Council and a significant loss or injustice.
5. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I have investigated

10. I have investigated alleged missed OT provision from September 2023 to June 2024, which is when the Council provided its final complaint response.

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What I found

Relevant law and guidance

11. The Council has a duty to ‘secure’ 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

12. The Council issued an amended EHC Plan for Ms X’s child in Summer 2023. Section F included the following provision:
• Education staff consulting with the occupational therapists visiting the educational setting
• The OT Service to provide strategies and advice to be embedded into the daily routine by educational staff through the day.
• The OT Service to advise on modifications to the environment and model approaches.
• The OT Service to make available training for educational staff to access.
• 3 educational setting-based appointments by a member of the OT Team per term. A total of 9 visits per year into the educational setting to work directly with pupil and support the setting staff to embed advice into daily routine.
• Direct OT input by a therapist with post graduate training in sensory processing to consist of a school visit in the first term to set up a sensory diet followed up by an additional visit in the following term and a review of sensory needs in the third term.
13. Ms X complained in Spring 2024 the sensory OT input was not in place. Ms X told the Council she had raised concerns with the OT Service which told her it could not offer this provision.
14. The Council’s response at stage one of the complaint process acknowledged Ms X had received an ‘unsatisfactory experience’ and apologised for missed OT provision. The Council said it would seek private providers for the sensory OT.
15. Ms X asked for the complaint to go to stage two when private provision was then not arranged. The stage two investigator found the Council’s stage one response ‘adequately detailed’ and had addressed her concerns, with an apology and a proposed resolution offered.
16. The complaint officer noted the Council had contacted Ms X in Summer 2024 to confirm that, having spoken with the OT Service, the provision had in fact been delivered. The Council’s complaint response said Ms X’s child had been reviewed six times between September and February with a further visit in May and one arranged for June.
17. The Council did not uphold the complaint and said OT had been provided as set out in the EHC Plan.
18. I made enquiries of the Council about the OT therapy and the qualifications of the OT. The Council provided an email between it and the therapist from Summer 2024. This stated Ms X was insisting the input needed to be provided by someone with a postgraduate ‘degree’ in sensory integration, which is not something the service offered. However, the Service said the EHC Plan did not require a postgraduate degree but postgraduate ‘training’ which the allocated therapist did have. The OT Service said they had held several discussions with Ms X about the provision.
19. The OT Service also confirmed it had delivered:
• 3 visits in November 2023 + 1 visit in October to set up a sensory toolkit.
• 2 visits in Spring 2024 term (because the Service was informed the annual review would be held in March so it would not be possible to have the 3rd visit ahead of this date).
• 3 visits in Summer term.
• The visits all lasted 90 minutes although due to the age of the child some time was used for observation instead of direct work.
20. In response to my draft decision Ms X provided copy emails between the school and OT team in which the school was querying the provision for Ms X’s child following Ms X’s complaint. The OT team said it had provided therapy to promote development of a range of skills and supported school to implement a range of sensory regulation strategies. The school responded that the first visit in October was spent with other children, and it did not recall being provided with a sensory toolkit or strategies; the focus had been on fine motor skills which the school did not consider a priority. The OT then provided more detail of the visits and acknowledged a lot of the sensory strategies were shared verbally throughout the year. The OT team said it was not previously aware the school did not regard this method of advice as sufficient to deliver the strategies.

Analysis

21. The actions of schools about how, what and when pupils are taught are not within the Ombudsman’s jurisdiction (LGA Sch 5 para 5, see GOJ). We can investigate whether special educational provision has been ‘secured’ by the council, but not day to day details which would be for schools and therapists to decide.
22. While there is an absolute duty to ‘secure’ provision under s.42, 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. 

23. Here, the Council arranged for the local OT health service to provide the OT in the September 2023 EHC Plan and visits started in October.
24. We would not have expected the Council to check further on the provision until the next review unless concerns were raised. It is for schools and practitioners to manage the day-to-day curriculum and delivery of therapy. I acknowledge there is a difference in view between the school and OT team about what was delivered, but no concerns were raised with the Council for eight months. The Council then investigated Ms X’s concerns promptly. We would not have expected the Council to have done anything differently in the eight months prior to receiving the complaint.
25. Under the EHC Plan the Council was required to provide 3 OT sessions per term, plus 1 visit per term to focus on sensory processing, so 12 visits per year. 9 visits were carried out, so there was a shortfall of 3 visits. It is not possible to quantify what difference, if any, this service failure made to Ms X’s child. The school was provided with advice from October and the school was responsible for day-to-day delivery. The school did not raise any concerns at the time.
26. The Council is correct to say the Plan does not require a postgraduate degree in sensory OT, only postgraduate training. The OT has confirmed their training is in line with this wording and says this was communicated to Ms X.
27. If Ms X is unhappy with the wording in the EHC Plan, she has a right of appeal after each review which we would expect her to use.
28. I have found errors in the complaint responses. The Council’s stage one response said provision had been missed and private provision would be sourced. It then reversed this view in stage two, but simultaneously stated the stage one response was accurate. This caused confusion and raised expectations private provision would be put in place. The Council also did not acknowledge some visits were missed.
29. In summary while 3 visits were missed and this was service failure, the Council was not made aware of this at the time. OT advice was provided throughout the year. It is not possible for me to say three missed visits caused Ms X’s child a significant injustice. Ms X has told me following a change in therapist she is happier with the provision currently in place.

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Action

Within four weeks of my final decision:

30. The Council has agreed to apologise to Ms X and acknowledge Ms X’s child did not receive 12 visits of the duration set out in the EHC Plan in 2023/4 and that its responses have not been consistent.
31. The Council should provide us with evidence it has complied with the above action.

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Decision

32. I find fault not causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman