Summary: Mrs X complained the Council failed to ensure her child received all the provision in their Education, Health and Care Plan. The Council is at fault for failing to ensure Y received the occupational therapy provision in their plan between May 2023 and April 2025. The Council has agreed to apologise to Mrs X and make a payment to acknowledge her frustration and to acknowledge the impact on Y of the missed provision. It has also agreed to issue a reminder to staff to ensure it meets its duty to deliver the provision set out in Education, Health and Care Plans.

The complaint

1. Mrs X complained the Council failed to ensure her child Y received all the provision in their Education, Health and Care (EHC) Plan. In particular, she complained the Council did not provide occupational therapy (OT) or the further assessments specified in the Plan. Y therefore missed out on support they were entitled to which Mrs X says impacted upon Y’s school attendance. This has also caused Mrs X significant frustration.

Back to top

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. 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)
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). Mrs X’s complaint concerns events back to May 2023. I have decided to investigate what happened from May 2023 until November 2024 when Mrs X wrote to us. Y had their annual review in May 2023, Mrs X has continued to complain and used mediation to try and resolve her concerns and there has been ongoing injustice to Y.
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended). The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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).

Back to top

How I considered this complaint

7. I have considered the information provided by Mrs X, the information provided by the Council in response to our initial enquiries and the relevant law and guidance.
8. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

Back to top

What I found

EHC Plans

9. 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. 
10. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision needed by the child or the young person. 

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). 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. Y has a diagnosis of autism spectrum disorder with overwhelming anxiety, particularly about school. Y also has a restricted food intake and other sensory issues. Y has an EHC Plan and attends a mainstream secondary school and received one to one teaching assistant support in all lessons.
13. In 2022 Y’s EHC Plan included specific regular direct occupational therapy plus strategies of support provided by the OT to Y’s teaching assistants. This totalled 32 hours of support for the year and was delivered by a private provider commissioned by the Council.
14. The OT produced a report for Y’s annual review in May 2023. The report stated they did not feel Y required further direct Occupational Therapy intervention in the next academic year but needed ongoing reviews to ensure Y made continued progress and to support and guide teaching staff. The OT made some recommendations. These included that Y continued to receive specific interventions guided by the OT to support Y’s eating in school and the continued use of a ‘zones of regulation’ programme with a key staff member taking the lead in delivering specific sessions. The OT would help advise about implementing the programme. The report said Y needed three termly reviews to include written advice and therapy update reports focusing on supporting Y’s eating at school and reducing the associated anxiety and promoting Y’s regulation needs. Additionally, the OT needed time to liaise with the parents and relevant professionals and time to attend the annual review. This equated to 14.5 hours of support.
15. The annual review recommended Y’s plan be amended by adding the OT’s recommendations to section F of Y’s EHC Plan.
16. The Council issued Y’s final amended EHC Plan in August 2023. This included in section F 10 hours of OT for support for a graded food play programme and an assessment and programme of activities related to Y’s sensory needs. It did not include all the recommendations from the private OT’s report.
17. Mrs X emailed the Council in September 2023 as it had finalised the Plan without considering the comments she had submitted. The case worker apologised and said her emails had been overlooked due to human error. The Council issued an amended Plan in September 2023 which included Mrs X’s comments on sections A and B of the Plan but it did not agree to amend section F in line with her comments.
18. Around this time, the private OT company contacted the Council to ask if their continued input, as per the annual review was required. The SEND designated clinical officer advised the Council to contact the NHS OT for support with Y’s OT provision rather than through a commissioned provider. The Council ended the contract with the private OT company.
19. In early October 2023 Mrs X complained to the Council about it finalising Y’s EHC Plan without considering her comments regarding the section F provision. The Council responded later that month and apologised. It said it had since amended the plan based on the evidence it had available and had agreed to mediation with Mrs X to further discuss the amendments Mrs X requested to section F of the Plan.
20. In January 2024 following mediation, the Council issued Y with an amended EHC Plan which included the recommendations from the May 2023 OT report with 14.5 hours of OT input for the year. Following this, the NHS OT contacted Y’s school with links to training packages to help the school meet Y’s sensory needs. The OT stated they would not be able to attend termly reviews for Y but would be happy to attend the annual review.
21. The school arranged Y’s annual review in June 2024. It did not invite the NHS OT. The notes record Mr and Mrs X raised the issue of lack of OT support for Y throughout the year. Y had received a high level of support the previous year regarding eating issues and zones of regulation which had not continued. Teaching assistants had received training and continued to provide support with emotional regulation but Y had received no direct work to support their food issues. The school said it had contacted the NHS OT who had offered training material but could not provide direct support. It acknowledged it had then failed to invite the NHS OT to the annual review.
22. Mrs X complained to the Council again in July 2024 that despite her previous complaint Y had still not received the OT provision set out in their plan. She said the Council, following mediation, had agreed to put this provision back in Y’s plan but Y had not received the provision or assessments. She said this had impacted Y’s school attendance. A Council manager spoke to Mrs X and apologised for the delay in responding and for the provision not being delivered. They agreed to fund double the amount of OT support during the 2024/25 academic year.
23. The Council contacted the school. It accepted it had forgotten to invite the OT to the annual review. It said materials shared by the OT in 2022/23 were shared with new teaching assistant staff.
24. In August 2024, the Council contacted the NHS. The NHS said it agreed to offer links to training and attendance at the annual review only. It said it never agreed to provide the provision set out in the amended January 2024 EHC Plan.
25. The Council issued an amended final EHC Plan in September 2024. This included 24.5 hours of OT provision, consisting of three termly reviews, attendance at the annual review, liaison time with parents and other professionals and 10 hours to be used flexibly in conversation with the school and family.
26. In October 2024, Mrs X complained to us. The Council agreed to respond formally through its complaints’ procedure. It responded in November 2024. It said its designated clinical officer had considered provision should be delivered by the NHS. The NHS OT had contacted the school who said Y was settled and thriving and it had no concerns from a sensory perspective. The OT considered there was no clinical need but had offered to attend the annual review but was not invited. It said the school could have contacted the OT if it felt the provision was needed. It said it agreed to commission OT input and increased hours of provision to support Y to address any potential concerns which may have arisen because the provision was not delivered. It said this had taken a small amount of time to arrange due to capacity issues with companies it approached. It said it contacted the previously used private provider in August and September, but it was unable to deliver the provision. It said another provider confirmed in October that it had capacity.
27. Mrs X wrote to us in November 2024. She said Y had still not received any OT provision. Mrs X said Y’s attendance at school has dropped from 90% in 2022/23 to around 60% and this had subsequently affected Y’s performance at school which was now lower than expected. She said Y had never ‘thrived’ at school and required OT input in line with their Plan. She said Y has dropped some lessons to allow for extra sensory sessions outside the classroom so Y can cope with the school day.

Findings

28. The Council failed to consider Mrs X’s comments before it finalised Y’s plan in August 2023. This was fault which caused Mrs X frustration. This appeared to be the result of human error rather than a systemic issue, so I have not made any service improvement recommendation.
29. The OT recommended Y receive 14.5 hours of OT provision in 2023/24. The Council did not agree to this but included 10 hours of OT support in Y’s Plan. Mrs X and the Council agreed to mediation to try and resolve this, which was appropriate. The Council then agreed to amend the EHC Plan to add in the OT recommendations from May 2023 and to increase the provision to 14.5 hours for the year. It issued Y’s amended Plan in January 2024 but then failed to ensure this provision was in place and delivered. It believed this was being provided through the NHS but failed to obtain agreement or get confirmation as to how this would be delivered. The duty to ensure a child receives the education set out in section F of their plan is non-delegable and sits with the Council. The Council was at fault.
30. In response to Mrs X’s complaint the Council agreed to increase Y’s OT provision in the 2024/25 school year to make up for the lost provision. This was appropriate. However, the Council has failed to ensure this has happened. This was fault and has added to Mrs X’s frustration.
31. Y has not received any OT input since May 2023. Mrs X says this has impacted Y’s attendance and performance at school. Whilst I cannot make a direct correlation between the OT support Y should have received and Y’s attendance and performance at school, Y has not received the provision they should have received as outlined in their EHC Plan. This is likely to have had some impact on Y. In particular, Y has had little or no input regarding support with food.

Back to top

Agreed Action

32. Within one month of the final decision the Council has agreed to:
1. apologise to Mrs X and pay her £300 to acknowledge the frustration she was caused by the Council’s failure to consider her comments before finalising Y’s EHC Plan and for failing to deliver the agreed increased provision following her complaint.
2. pay Mrs X £1,650 to acknowledge the impact on Y of not receiving the OT provision set out in Y’s EHC Plan from May 2023 to April 2025. (approximately five and a half terms).
33. Within two months of the final decision, the Council has agreed to:
1. ensure OT provision is in place to meets Y’s needs as set out in Y’s EHC Plan and to ensure continuity of provision for the next academic year, should OT provision still be required following Y’s annual review. If the Council fails to secure the provision before the end of this academic year it should pay Mrs X an additional £300 to acknowledge the impact on Y.
2. remind relevant staff in its special educational needs team that it is their responsibility to ensure OT provision, and any other provision in section F of the EHC Plan is delivered, and this is not delegable to the NHS or any other third party organisations.
34. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

35. I have completed my investigation. There was fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman