Summary: Mrs X complained the Council has not properly delivered the provision in her child’s Education Health and Care Plan since 2021. The Ombudsman finds the Council at fault which caused injustice. The Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complains the Council has not properly delivered the Occupational Therapy provision in her child, B’s, Education, Health and Care (EHC) Plan since 2021.
2. Mrs X says this impacted her child’s education and emotional wellbeing.

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The Ombudsman’s role and powers

3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)

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What I have and have not investigated

6. Mrs X complains the Council has not consistently provided the Occupational Therapy provision in the EHC Plan since 2021. Mrs X complained to us in October 2024. As I have said above, we cannot investigate late complaints unless there are good reasons for us to do so.
7. In this case, I have decided there are no good reasons to exercise our discretion and look back further than October 2023. I have therefore only considered the Council's actions from October 2023 onwards because this is 12 months before Mrs X brought her complaint to us.

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How I considered this complaint

8. I considered the information and documents provided by Mrs X and the Council. Mrs X and the Council have had an opportunity to comment on a draft of this decision. I considered all comments received before making this final decision.
9. I also considered the relevant statutory guidance, and Council’s policy, as set out below.
10. 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

What should have happened

11. 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.
12. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 

13. 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)  
14. 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

15. Prior to October 2023, the Council issued B’s EHC Plan. The Plan detailed B would have a one-hour OT session every half term.
16. In Autumn and Spring terms, the Council provided B with the OT provision detailed in his plan.
17. In April, the OT support stopped.
18. In May, the Council held a meeting to review B’s EHC Plan and discuss B’s needs. It was agreed B was struggling in mainstream school and a part time timetable would be considered. It was agreed B would benefit from more OT support.
19. In June, the Council issued B’s final amended EHC Plan. The Plan detailed an initial block of 28 weekly OT sessions. It also named a specialist school placement from September 2024.
20. In September, Mrs X made a formal complaint about the lack of OT support.
21. In October, the Council told Mrs X that it was unaware the OT support had stopped in April.

Analysis

22. The Ombudsman recognises it is not reasonable for councils to have oversight of the delivery of every provision, to every child with an EHC Plan, at all times. However, it is reasonable the Council satisfies itself provision has been secured and reviews this on an annual basis and follows up any concerns of no provision. The Council states it arranged a personal budget for OT provision for B from September 2023 to August 2024 and was not aware the provision had stopped in April 2024. However, in the preparation for the annual EHC Plan review in May 2024, Mrs X reported that no additional support within school had been put in place. It would be reasonable for the Council to have followed up on Mrs X’s concerns, and if it had done so it would have been notified B had not received the OT support for that half term. This is fault and caused B to miss out on some OT provision.
23. The final EHC Plan issued in June 2024 details a significant increase in OT provision for B. The Council decided it would not immediately begin the increased OT provision. In making this decision it considered B’s increased mental health support needs and that B was transferring to another school in September and so would be working with a new OT. It said it made this decision with the input of the OT and in B’s best interest. I am satisfied the Council considered all relevant information and do not find fault in its decision making.

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Action

24. Within four weeks of my final decision the Council has agreed to:
1. provide a written apology to Mrs X and B for not exercising its due diligence to ensure B received the correct provision between April and July 2024 which caused B to miss some Occupational Therapy provision.
2. make a payment of £200 to Mrs X to recognise the provision B missed out on between April and July 2024. In arriving at this figure, I considered our published guidance on remedies and B’s individual circumstances. I considered B’s needs, and that B had a school place which was available and accessible during this time. I also considered the timing, and this occurred during a year which was significant in terms of B’s education. I consider this amount is appropriate and proportionate to the level of injustice caused.
25. The Council should provide us with evidence it has complied with the above actions.

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Decision

26. I find fault causing injustice. The Council has agreed to apologise and make a payment to Mrs X to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman