Summary: Ms A complained that the Council has failed to secure the provision in her child’s Education, Health and Care Plan. She says her child’s health, education and long term development have been negatively impacted by this. We found the Council at fault. The Council has agreed to apologise and provide a payment to Ms A and to her child in recognition of the injustice caused.

The complaint

1. Ms A complains the Council is not providing the provision set out in her child (X)’s Education, Health and Care (EHC) Plan. She says this has negatively impacted her child’s behaviour, education and long term development.
2. Ms A would like the Council to put the provision in place and make a payment in recognition of the impact the missed provision has had.

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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)
5. 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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How I considered this complaint

6. I considered evidence provided by Ms A and the Council as well as relevant law, policy and guidance.
7. Ms A and the Council have had an opportunity to comment on my draft decision before this final decision was made.

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What I found

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. Section F of the EHC Plan sets out the special educational provision needed by the child or the young person. 
10. 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)
11. 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)

What happened

12. Ms A’s child, X, has special educational needs and has an EHC Plan in place. X’s plan, amongst other things, sets out that he should receive speech and language therapy, and occupational therapy.
13. The speech and language therapist was required to provide:
• approximately an hour a week in direct therapy with X;
• two hours of staff training to the school per year;
• three hours of attendance at multi-disciplinary meetings about X’s needs;
• five hours throughout the year to develop a care plan; and
• two hours to write a report for X’s EHC Plan review.
14. The occupational therapist was to provide 45-minute sessions at least weekly, for 12 to 15 sessions and then assess the need for ongoing therapy. The EHC Plan says the therapist should spend an hour per term reviewing and reporting X’s needs and provide training to X’s teachers to ensure they can better understand and meet his needs.
15. Neither provision was provided for the Autumn 2024 term.
16. Ms A complained to the Council and said it was failing to meet its duty to secure the provision in X’s EHC Plan. The Council explained it has been doing all it can to try to put the therapists in place but has been unable to.
17. The Council later confirmed the speech and language therapist has been secured. Ms A confirms this therapy began in March 2025, but X is still without occupational therapist support.

Analysis and findings

18. The Council has shown that it has made attempts to find appropriate therapists to meet X’s needs but has been unable to secure an occupational therapist. It references the national shortage of occupational therapists as an obstacle.
19. The Council has a duty to provide the provision in X’s EHC Plan regardless of any obstacles in doing so.
20. There is no dispute that X did not receive speech and language therapy for all of the Autumn 2024 term, and occupational therapy at all. Failure to secure provision in X’s plan is a service failure.
21. Where we find fault, we consider the injustice caused by this. X is a child with severe and complex needs.
22. Our guidance on remedies states that where there is a fault which results in a loss of educational provision, we will usually recommend a payment of £900 to £2,400 per term to acknowledge the impact of that loss.
23. Where the missed provision is not all education, but support such as the therapy X has missed out on, our recommendations are usually less. We consider the effect of the loss on the child’s wider educational provision.
24. The speech and language therapy was intended to help with X’s severe difficulties with understanding and communication which have a significant impact on all aspects of his education.
25. The occupational therapy was intended to help him with significant sensory issues which also impact on all aspects of his education.
26. Not having this provision will therefore have affected the value of all of the education he received during this time. The recommended remedy is in recognition of this.
27. Ms A has also suffered the injustice of worrying about her child’s needs not being met and about the long term effect of this on his development.

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Agreed Action

28. Within one month of the decision, the Council will:
• Make a payment of £1,950 to Ms A to be used for X, in recognition of the injustice caused to him;
29. The sum is made up of £150 for each missed provision per month. Both therapies were missed from September to March. This is six months at £300 per month, so £1,800. For March to April, X has missed out on occupational therapy, so I have included £150 to recognise this.
• Secure the outstanding provision as soon as possible. For each month the Council fails to secure the occupational therapy X needs, the Council should pay an additional £150 until the end of the 2024/2025 academic year. If the provision is still not in place at that point, Ms A can bring another complaint to this office.
• Make a payment of £300 to Ms A for the injustice caused to her;
• Issue an apology to both X and Ms A.
30. 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.
31. Within three months of the decision, the Council will:
• Review the delays it has encountered in securing a speech and language therapist in this matter and create a plan to avoid a recurrence of this.
• Create a long-term plan to deal with the issues it has faced in securing an occupational therapist going forward.
32. The Council should provide us with evidence it has complied with the above actions.

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Decision

33. We found the Council is at fault and caused injustice. The Council agreed to carry out some action to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman