Summary: Mr X complained that the Council failed to ensure his child (Y) received the specialist provision set out in their Education Health and Care (EHC) Plan. The Council failed to ensure Occupational Therapy (OT) was in place from September 2024 to date. This caused Mr X distress, frustration and uncertainty and meant Y’s needs went unmet for longer than necessary. The Council has agreed to make a payment to recognise this.

The complaint

1. Mr X complained the Council failed to ensure his child (Y) received the specialist OT provision set out in their Education Health and Care (EHC) Plan.
2. This caused Mr X distress, frustration and uncertainty as Y’s needs went unmet for longer than necessary.

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The Ombudsman’s role and powers

3. 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)
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. 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.
6. 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 have and have not investigated

7. Mr X appealed to the SEND Tribunal about Y’s EHC Plan. Mr X says a report produced in July 2023 showed Y needed extra OT. The SEND Tribunal issued its decision in July 2024. The revised EHC Plan the Council issued in late August 2024 contained extra OT. Mr X says loss of OT provision should be considered from July 2023 when the report was issued.
8. When an appeal has been made, the Ombudsman has no jurisdiction to consider related matters from the point at which the appeal rights were available to the point at which the SEND Tribunal issues its decision. The courts have upheld we cannot investigate any matter which is closely linked to the matters under appeal. The OT provision Mr X says Y missed out on from July 2023 to when the Tribunal issued its decision is directly linked to the matter appealed. We therefore have no jurisdiction to consider this point.

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How I considered this complaint

9. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
10. Mr 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 found

Relevant law and guidance

EHC Plans

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. 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. 
12. Councils are responsible for making sure all the arrangements set out in in the EHC Plan are put in place.
13. The Council has a legal duty to ensure the educational and social care support set out in a final EHC Plan is delivered. This duty is non-delegable.

What happened

14. Mr X has a child (Y) of secondary school age. Y has special educational needs and an EHC Plan which outlines the specialist provision they require. Following a SEND tribunal hearing in July 2024, the Council issued an amended final EHC Plan in late August 2024. Section F of the Plan outlined Y was entitled to 40 hours of Occupational Therapy (OT) per year which included:
• Nine one-hour face to face treatment sessions with an OT
• After each session, the OT has a further one hour dedicated to documenting the session and liaising with parents/professionals.
• Three hours per term for the OT to complete face to face contact, consultation and written recommendations.
• A further four hours for the OT to contribute to the annual review.
15. In October 2024, Mr X complained about the delays in putting the OT provision in place. The Council issued a final response in December 2024 upholding his concerns. The Council said the tender was currently with the commissioning team and it should complete all paperwork for it by 16 December 2024. The Council apologised and offered Mr X a £500 one off payment for the time and trouble caused by having to make the complaint. It also offered him £300 per month between September 2024-December 2024 to remedy the loss of OT provision. However, Mr X said the Council has not issued this payment yet.
16. Mr X remained dissatisfied with the Council’s handling of the matter and complained to us.
17. Since then, Mr X asked the Council to carry out a new OT assessment in January 2025 prior to delivering any provision as the last assessment took place in June 2023. The Council said this is why it has not put OT provision in place between Jan 2025 to present.

The Council’s response to our enquiries

18. The Council said the initial delay in implementing the OT which Mr X complained about in October 2024 was due to an oversight by an individual caseworker following the tribunal appeal. The Council said it now has a tribunal triage process in place to ensure that actions following an appeal are completed. The Council is also now part of a collaborative framework and all OT provision is processed using regionally approved providers. The Council says this provides a robust, timely turnaround for requests for assessment and provision.

My findings

19. Y was entitled to OT provision from September 2024 once the Council issued the amended final EHC Plan. The Council has a legal non-delegable duty to ensure provision in line with section F is secured and provided. The Council is required to provide this regardless of Mr X requesting a new OT assessment prior to putting the provision in place. The Council failed to ensure Y received the OT provision they were entitled to from September 2024 to date which is approximately eight months. This was fault which meant Y lost the opportunity to receive this provision and their needs have gone unmet for longer than necessary. This has caused Mr X distress, frustration and uncertainty.
20. The Council has already offered an appropriate remedy for the lack of OT provision between September-December 2024. Therefore, no further financial remedy is required for this period. I have however made recommendations for the Council to remedy the continuing injustice.

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Action

21. Within one month of the final decision, the Council has agreed to take the following action:
1. Pay Mr X £1700 as agreed in its stage two response to recognise Y’s loss of OT provision in line with their EHC Plan for the September-December 2024 term.
2. Pay Mr X £1200 to recognise Y’s loss of OT provision in line with their EHC Plan for the January-April 2025 term.
3. Provide a copy of the tribunal triage process the Council has implemented to ensure that actions following an appeal are completed.
22. Within two months of the final decision, the Council has agreed to take the following action:
1. Implement the OT provision Y is entitled to in their EHC Plan and pay Mr X £300 per month until this is complete.
23. The Council should provide us with evidence it has complied with the above actions.

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Decision

24. I find fault causing injustice. The Council has 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