Summary: Mrs X complained about the Council’s failure to secure educational provision in her child’s Education, Health and Care Plan. Mrs X said not receiving that necessary support badly affected her child’s education and wellbeing and caused distress. We found there was avoidable delay by the Council in securing provision in the Plan. In recognition of the resulting avoidable distress and time and trouble, the Council agreed to secure the educational provision and both apologise to Mrs X and make a symbolic payment of £1,000.

The complaint

1. Mrs X said the Council failed to carry out an Occupational Therapist’s (OT) assessment and then put in place any resulting recommendations. The need for an assessment was set out in her child’s Education, Health and Care Plan (EHC Plan). Mrs X also complained about the Council’s handling of her complaint about the matter.
2. Mrs X said the Council’s failure meant her child was not getting the necessary support at school. This negatively affected her child’s education, development and wellbeing. Mrs X said dealing with the Council had also been time consuming, costly and stressful.
3. Mrs X wanted the Council to secure or fund an assessment by a private OT and amend her child's EHC Plan to reflect the OT’s findings. Mrs X sought financial redress for her child’s lost educational provision and for distress. Mrs X also wanted the Council to pay her advocacy costs.

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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 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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)
8. Under our information sharing agreement, we will share the final decision on this complaint with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council. I also considered relevant law, policy and guidance. I shared Council information with Mrs X. And I gave Mrs X and the Council an opportunity to comment on my draft decision and considered any comments received before making a final decision.

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What I found

Background

Special educational needs (SEN)

10. A child or young person with special educational needs may have an EHC Plan. The EHC Plan 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 the child’s needs, education, or the name of their educational placement. Only the SEND Tribunal or the council can do this. 
11. The council has a duty to make sure the child receives the special educational provision set out in section F of an EHC Plan (see Section 42 of the Children and Families Act 2014, as amended). 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 it 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)  
12. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all section F special educational provision 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 it issues a new or amended EHC Plan; 
• check the provision at least yearly when reviewing an EHC Plan; and 
• quickly investigate and act on concerns about provision not being in place. 

13. The council must arrange for an EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents and the educational placement. A review meeting must then take place. An annual review is complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (See Regulation 20(10) of the Special Educational Needs and Disability Regulations 2014 (the 2014 Regulations). See also paragraph 9.176 of the statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (the Code)).
14. If the council decides not to amend an EHC Plan, it must tell the child’s parents of their right to appeal the decision to the SEND Tribunal.
15. The council must carry out the SEND Tribunal’s decision in line with Regulation 44 of the 2014 Regulations. (Here, the Council had five weeks to issue an EHC Plan amended in line with the SEND Tribunal’s order.)
16. The SEND Tribunal has powers to make costs orders about wasted costs and if it considers a party, or its representative, has acted unreasonably in bringing, defending or conducting proceedings.

Complaints

17. The Council asks people to get in touch and give it an opportunity to fix a problem before they make a complaint. And, if people complain, the service complained about aims to respond within 10 working days. If people are dissatisfied with the service reply, they may ask the Council to escalate their complaint. Depending on the complaint issues, the Council may either suggest mediation/dispute resolution to resolve matters or it may review the complaint. In both cases, the Council aims to respond within 20 working days. The Council says it will keep people updated and tell them about any delay. If people remain dissatisfied, the Council signposts them to the Ombudsman.

Summary of what happened relevant to the complaint

18. Mrs X’s child, in this statement called ‘C’, had an EHC Plan. Mrs X considered C needed more support than set out in the EHC Plan.
19. An annual review took place and the Council decided not to amend C’s EHC Plan. Mrs X used her appeal rights and challenged the Council’s decision at the SEND Tribunal. During the SEND Tribunal process, an Educational Psychologist assessed C and issued a report. The report said an OT should assess C and then put any recommendations in place. The SEND Tribunal decided to amend C’s EHC Plan. An amendment said C would be seen by an OT and their recommendations put in place so C would access direct and indirect occupational therapy if needed.
20. Six weeks after the SEND Tribunal’s decision, the Council issued C’s amended EHC Plan. Soon afterwards, Mrs X started contacting the Council expressing concerns about it not securing the educational provision set out in Section F of C’s amended EHC Plan.
21. Meanwhile, Mrs X was in touch with the special educational needs and disabilities coordinator (SENCo) at C's school. And, contact was made with the National Health Service (NHS). The NHS recommended Mrs X access its Sensory Advisory Service, which provided training and would help Mrs X to support C. (Over the following six months, Mrs X completed NHS online training and the NHS OT service also triaged C’s case. The NHS first placed C on its sensory OT pathway and later moved C to its routine OT pathway. In working with C, an NHS OT spoke to and then met with Mrs X. The NHS OT also met C and, about seven months after the Council had issued the amended EHC Plan, observed C at school. Mrs X asked whether the NHS OT’s work was the provision needed under Section F of C’s amended EHC Plan. The NHS OT said it was not and the Council needed to source the Section F provision through Mrs X’s SEN caseworker. The NHS said its work gave C access to its wider OT service for support with functional needs.)
22. Meanwhile and about two months after it had issued C’s amended EHC Plan, Mrs X made a formal complaint to the Council. The complaint included Mrs X’s concerns about the lack of an OT assessment for C.
23. The Council replied about three weeks later, upholding the complaint. Mrs X told the Council its response did not address all her concerns, for example, securing the Section F OT provision for C.
24. Two weeks later, the Council told Mrs X that, as C was not known to the NHS OT Service, it needed to commission that work. The Council asked Mrs X if there was any OT she would like it to use. A week later Mrs X gave the Council contact details for five OTs. A few days later, the Council closed Mrs X’s complaint. The Council did not tell Mrs X it had closed her complaint.
25. Over the following three months, Mrs X continued to telephone and email the Council seeking updates on her complaint and OT provision for C. During the three months, the Council replied to some of Mrs X’s contacts. Its replies included apologies. The Council also suggested a meeting with Mrs X and C’s school (there was no evidence a meeting took place). The Council also told Mrs X it had reopened her complaint having previously closed it. (The evidence showed the Council then delayed acting on the reopened complaint.) The Council also said it knew C’s amended EHC Plan needed an OT assessment. And, about four months after Mrs X had first complained, the Council said it had contacted an OT. (The contact did not lead to an assessment for C by any OT.) The Council also gave Mrs X a date for its formal response to her stage 2 complaint.
26. On the date given for its stage 2 response, the Council wrote to Mrs X, apologising, and saying it needed another two weeks to reply. Mrs X expressed her deep concern and dissatisfaction and pointed out that she had originally complained five months ago and seven months had passed since the issue of C’s amended EHC Plan.
27. During the two weeks, the NHS OT service issued an Intervention Plan (the NHS Plan), which it had agreed with Mrs X, to support C. The NHS Plan said its recommendations were based on limited observations. It also said an OT should carry out a full sensory assessment and make recommendations for C. The NHS discharged C from its OT Service and sent a copy of the NHS Plan to Mrs X, C’s school and C’s doctor.
28. The Council then responded to Mrs X’s complaint and again apologised for its delay. The Council accepted it had taken excessive time to carry out C’s OT assessment but it had now taken place. The Council said it would act on the assessment recommendations. (The Council’s letter suggested it had seen and was referring to the NHS OT’s visit to C’s school and the resulting NHS Plan, although Mrs X had not then sent it a copy.) The Council also apologised for its failings in handling Mrs X’s complaint.
29. Mrs X referred the Council to the NHS’s email about its work not being the Section F OT provision needed by C’s amended EHC Plan. Mrs X said the NHS OT recommended C for a full assessment by an OT. Mrs X said the Council had a legal duty to secure the provision in C’s amended EHC Plan but, eight months after it had issued that plan, C remained without an OT assessment. Mrs X again asked the Council to contact the OTs she had named months ago and to urgently arrange an OT assessment for C.
30. A few days later, Mrs X again contacted the Council saying a named OT was available to assess C in about two months. Over the following 48 hours, Mrs X emailed the Council twice asking it to book the OT’s available date. The Council then replied refusing to fund a private OT assessment. The Council said it would review C’s EHC Plan and include recommendations from the NHS Plan. The Council also said the OT provision needed by C’s current EHC Plan had “in a sense, been completed” although the NHS Plan recommended a further assessment.
31. Mrs X brought her complaint to the Ombudsman.
32. Meanwhile, the Council held an annual review meeting for C’s EHC Plan. Six months after the meeting, which took place during 2024, the annual review was not yet complete.

What the Council said to the Ombudsman

33. The Council accepted the work carried out by the NHS OT service did not satisfy Section F of C’s amended EHC Plan. It also said it had complied with C’s amended EHC Plan from the date of the NHS Plan, which followed an NHS OT seeing C. It understood C’s school had acted on the recommendations in the NHS Plan on receiving a copy of that plan. But it did not have evidence from C’s school to show this had happened. The Council accepted it had not yet complied with the NHS Plan’s recommendation for a full sensory assessment for C. It aimed to commission that assessment before Easter 2025. The Council could not provide reasons for its delay in securing the Section F OT provision in C’s amended EHC Plan.
34. The Council said it had recently drafted a SEND Action plan. The action plan included work linked to specialist assessments, like C’s OT assessment. The action plan also aimed to increase the staff available to support assessment work.
35. On complaint handling, the Council said, in responding to its stage 1 reply, Mrs X posed questions rather than asking to escalate the complaint to stage 2. So, in line with its normal practice, after responding to the questions it closed the complaint. Having closed the complaint, it had considered further contact from Mrs X as service requests, until she expressly asked to escalate the complaint to stage 2.
36. The Council said it had learned from what had happened with Mrs X’s complaint. So, in future it would check if complainants wanted to escalate a complaint if this was not clear from the correspondence. It would also remind officers of the importance of quickly dealing with all complaint correspondence.

Consideration

Introduction

37. As a publicly funded body we must be careful how we use our resources. We do not try to address every point raised in a complaint or answer every question a complainant may have about what a council did. Rather, we conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we may not respond to complaints in the level of detail people might want.
38. Accordingly, this statement does not, and does not need to, address or resolve every issue raised in Mrs X’s correspondence with the Council. My investigation focused on whether there was evidence of fault having potential to cause significant injustice in the Council’s handling of the Section F OT provision in C’s amended EHC Plan. I also considered Mrs X’s concerns about the Council’s complaints handling.

C’s amended EHC Plan and OT provision

39. The Council had a legal duty to make sure C received the educational provision set out in section F of C’s amended EHC Plan. Section F said C should be seen by an OT and the OT’s recommendations then put in place. Despite Mrs X’s best efforts to ensure the Council complied, it had not done so about eight months after it had issued C’s amended EHC Plan. However, the Council said it then complied as it relied on the NHS Plan. The NHS Plan was dated about eight months after the issue of C’s amended EHC Plan and followed soon after the NHS OT visited C’s school.
40. I found the Council’s comments about securing the provision in C’s amended EHC Plan and the NHS Plan confused and inconsistent. The evidence did not show the Council was responsible for or commissioned the NHS OT service to work with C and Mrs X. Rather, during the eight months after it issued C’s amended EHC Plan, the Council was writing to Mrs X about needing to commission an assessment as C was not known to the NHS OT service. The Council also gave Mrs X an opportunity to name OTs for an assessment. (See paragraphs 24 and 25.) Meanwhile, Mrs X was already in contact with the NHS OT service and C was on its routine OT pathway. So, understandably, Mrs X asked the NHS if its work would secure the OT provision needed under C’s amended EHC Plan. The NHS told Mrs X it would not and the Council needed to source the necessary work. The NHS also did not send the Council a copy of its NHS Plan. This provided further evidence the Council was not part of the NHS OT work.
41. Overall, the evidence showed that, fortuitously, the Council found out about the NHS OT’s work with C. And, on balance, this probably happened because of the Council’s contact with C’s school and starting the 2024 annual review of C’s EHC Plan. However, C’s amended EHC Plan had said C should be ‘seen by’ an OT. And C was ‘seen by’ an OT, although not one commissioned by the Council. But, the Council needed to have secured the Section F provision in C’s amended EHC Plan within five weeks of the SEND Tribunal’s order. The NHS OT visited C’s school to observe C about eight months after the SEND Tribunal made its order.
42. The evidence showed that, having seen the NHS Plan, the Council recognised it needed to arrange a full OT assessment for C. The Council told us it would seek to secure such an assessment by Easter 2025. There was over nine months between the NHS Plan and Easter 2025.
43. We expect councils to demonstrate appropriate oversight of schools to ensure they provide the educational provision set out in EHC Plans (see paragraph 12). The Council understood C’s school had implemented the NHS Plan recommendations (other than securing the full sensory OT assessment). However, the Council provided no evidence from C’s school to demonstrate it had put the NHS Plan recommendations in place (see paragraph 33).
44. Overall, the evidence showed the Council failed to act and put in place the OT provision required by section F of C’s amended EHC Plan. The evidence also showed the Council failed to secure the full sensory assessment it accepted C needed. This failure continued during my investigation. So, there was excessive avoidable delay, which was fault. The Council’s failure to act would likely have caused Mrs X frustration. And, without a full OT assessment, Mrs X faced continued uncertainty about what OT support C should receive. I therefore found the fault I identified caused Mrs X injustice.
45. In considering other complaints, we found fault causing injustice in the Council’s delivery of its SEND services. We also agreed service improvements with the Council aimed at addressing identified faults in its SEND services. For example, the Council agreed to review its commissioning arrangements for OT provision; and to review procedures for ensuring Section F provision is in place on issue of an EHC Plan. We also asked for action plans to address issues, including delays in the EHC needs assessment and plan process. The Council had also prepared a SEND Action Plan aimed at transforming its overall SEND services. The Council shared the Action Plan with the Ombudsman and we intend to monitor the Council’s progress in carrying out that plan. I was therefore satisfied the Council was working both to put in place previously agreed service improvements and implement its SEND Action Plan. Accordingly, I saw no need now to recommend further service improvements.

Complaint handling

46. The Council had already accepted and apologised for failings in its complaints handling (see paragraph 28). I agreed there was fault here, which was avoidable. While Mrs X’s reply to the Council’s stage 1 response did not expressly ask for a stage 2 response, it represented a request to escalate her complaint. And the Council closing the complaint without telling Mrs X and its later delays in dealing with the reopened complaint, would likely have added to her frustration. The Council’s overall handling of the complaint also put Mrs X to avoidable time and trouble in pursuing her concerns. I therefore found fault in complaints handling that caused Mrs X injustice and which the Council’s apology did not adequately address.
47. The Council said it had learnt from what happened and set out steps for improving its complaints handling (see paragraph 36). I was satisfied these steps should address the wider complaints handling issues raised by Mrs X’s complaint and help improve the Council’s future complaints handling.

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Action

48. I found fault causing injustice (see paragraphs 44 and 46). To put right the injustice to Mrs X caused by the Council’s fault, the Council agreed:

• (Within three working days of this statement) to contact an OT/OTs and, without avoidable delay, secure an OT assessment for C so it may then amend C’s EHC Plan as necessary in line with the OT’s recommendations. The Council should also agree to keep Mrs X regularly updated on progress in arranging the assessment and putting in place any resulting OT recommendations.
• (Within 20 working days of this statement) to send a written apology to Mrs X for the avoidable distress and time and trouble arising from its delay in securing the Section F OT provision in C’s amended EHC Plan.
• (Within 20 working days of this statement) to make a symbolic payment to Mrs X totalling £1,000. The payment included £750 in recognition of the frustration and uncertainty arising from the failure to secure the Section F OT provision in C’s amended EHC Plan. It also reflected the excessive and continuing delay in securing an OT assessment for C and the Council’s inability to provide any reason for its delay. The remaining £250 recognised Mrs X’s avoidable time and trouble arising from failings in the Council’s complaints handling.

49. To improve its complaints handling, the Council also agreed, within twenty working days of this statement, to:

• Write to service managers responsible for complaints handling and instruct them to check if complainants want a stage 2 complaint response if this is not clear from their correspondence.
• Write to complaints officers to remind them of the importance of both opening all messages posted to its online complaint service and then responding to them quickly and in line with relevant published time targets.

50. We publish guidance on remedies which covers making effective apologies to remedy injustice. The Council should consider this guidance in making the apology recommended at paragraph 48.
51. The Council also agreed to provide us with evidence it had complied with the actions at paragraphs 48 and 49.

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Decision

52. I found fault causing injustice. The Council 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