Summary: The Council was at fault as it failed to provide occupational therapy for Miss X’s child from September 2024 to March 2025 in line with their Education, Health and Care Plan, and it poorly communicated and handled her case. It will apologise and make a payment to Miss X to acknowledge the impact of the missed occupational therapy provision. It will also identify why it failed to arrange the occupational therapy provision and report back to us on the action it has taken to address this.

The complaint

1. Miss X complained the Council:
1. failed to secure Occupational Therapy (OT) for her child Y from September 2024 to March 2025, in particular the “sensory diet” outlined in section F of Y’s Education, Health and Care (EHC) Plan. This meant Miss X had no choice but to source a private OT for Y;
2. poorly handled her case. It offered no guidance to complete a personal budget form properly and was poor in its communication;
3. failed to agree OT-provision related wording in Y’s EHC Plan in a timely manner; and,
4. did not respond to her repeated requests for a copy of a school consultation document.
2. Miss X says the loss of Y’s OT provision impacted their start in school and caused distress.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)
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. We normally expect someone to refer the matter to the Information Commissioner if they have a data complaint. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
7. 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)
8. 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)
9. 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 not investigated

10. I have not investigated Miss X’s complaint at 1c) above that the Council did not amend wording related to Y’s OT provision in their final EHC Plan in a timely manner. Miss X had a right of appeal to the SEND Tribunal about the content of Y’s EHC Plan and we would not normally investigate where there is a right of appeal and it was open to her to use that right. Councils must also arrange for a child’s parents to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the SEND Tribunal and Miss X resolved this matter at mediation.
11. I have not investigated Miss X’s complaint at 1d) above that the Council failed to provide school consultation document despite her numerous requests. It is reasonable to expect Miss X to refer this part of her complaint to the Information Commissioner’s Office (ICO) for its consideration. It is the appropriate body to consider any data complaints.

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How I considered this complaint

12. I spoke to Miss X about her complaint.
13. I considered the Council’s response to our initial enquiries as well relevant law, policy and guidance.
14. Miss X and the Council had an opportunity to comment on the draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

15. 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.
16. The EHC Plan is set out in sections which include Section F. Section F sets out the special educational provision needed by the child or the young person.
17. 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).
18. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
19. We have issued guidance on how we expect councils to consider and deliver requests for Personal Budgets: Parent Power: personal budgets in EHC Plans - published November 2023.

What happened

20. This section sets out the key events in this case and is not intended to be a detailed chronology.
21. Miss X’s child Y is of primary school age. Y has an eating disorder.
22. In July 2024, the Council issued Y’s first EHC Plan. Section F of this Plan set out details of the OT provision Y must receive in relation to their needs.
23. In September 2024 Y started school and Miss X learnt that the Council had not provided any funding or training to Y’s school to enable it to deliver the OT provision and more specifically the “sensory diet” set out in Y’s EHC Plan. Miss X says she immediately informed the Council of this.
24. By early October 2024 and after numerous contact attempts, Miss X had received no update from the Council about Y’s OT provision, so she sourced a private OT and complained to the Council. She provided it with a copy of the private OT invoice and requested a personal budget to allow her to book the OT without further delay.
25. The Council then sent Miss X a personal budget form to complete and return. Miss X says she received no guidance from the Council to help her complete the form properly but nevertheless she returned it promptly.
26. In late October 2024, on the Council’s request, Miss X provided a revised OT invoice to the Council to clarify issues with the original invoice.
27. In early November 2024 the Council responded to Miss X’s stage one complaint. It apologised for its poor communication due to staff absences. It told Miss X that a personal budget had been agreed and sent to its finance team.
28. Miss X then received a partial payment from the Council in relation to the private OT invoice without any explanation for the amount paid. The partial payment meant she could not pay the private OT in full to book its service.
29. In mid-November 2024 Miss X asked the Council to escalate her complaint. She remained unhappy with the Council’s and Y’s caseworker’s poor communication. She said the Council’s delay in highlighting discrepancies in the original OT invoice was unacceptable given that Y continued to remain without OT provision. She also complained about the partial payment she had received without any explanation and that she had received no guidance in completing the personal budget form properly.
30. In mid-December 2024, the Council responded to Miss X’s stage two complaint. It apologised for its poor communication which was due to Y’s caseworker going on emergency leave, for an inadequate stage one complaint response and for the lack of guidance in completing Y’s personal budget form. Regarding delays in the OT payment, the Council said:

• When Miss X first provided the private OT invoice in early October 2024, the Council was still looking to source its own OT. So it did not scrutinise the OT invoice for any errors.
• It then accepted the OT Miss X had sourced and sent her a personal budget form. But due to missing details on the invoice, it asked Miss X to submit a revised invoice.
• Between October to mid-November 2024, the Council corresponded with Miss X and the private OT to clarify details of the invoice. It then made a partial payment to Miss X without any explanation for it.
• Miss X queried this partial payment. Evidence shows the Council made a partial payment based on the information on the completed personal budget form.
• However, to avoid further delays, the Council decided to make a one-off payment to settle the outstanding balance on the OT invoice.

31. Miss X confirmed receipt of the outstanding payment in the first week of December 2024 and arranged for the OT to visit Y’s school in January 2025.
32. Given the particulars of Y’s OT provision requiring multiple staff training sessions across many weeks, Miss X said Y did not start receiving the provision until April 2025.

Findings

33. Councils have a duty to secure the SEN provision set out in Section F of an EHC Plan in line with section 42 of the Children and Families Act 2014. This duty is non-delegable. The provision should be in place from the date the final EHC Plan is issued.
34. Y’s Plan was finalised in July 2024 during the summer holidays. So Y’s OT provision should have been in place for the start of their school year in September 2024.
35. Evidence shows the Council did not source Y’s OT provision for September 2024. When Miss X sourced her own in October 2024, the Council took until December 2024 to pay the private OT invoice in full. Although Miss X booked the private OT for January 2025, implementing Y’s OT provision in school involved multiple training sessions with different staff and spread across many weeks. This meant Y only started receiving the provision in their Plan in April 2025, almost seven months later. This delay was fault. Y lost crucial OT provision set out in their Plan and that was a significant injustice.
36. The Council accepted its communication was poor and inadequate as Miss X did not receive timely updates. Further, the Council did not provide guidance to help Miss X complete the personal budget form properly to ensure any payments were made without avoidable errors or delay. This was fault. While Miss X subsequently received the OT payment in full, the Council’s lack of clarity caused Miss X avoidable frustration at the time.

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Agreed action

37. Within one month of this decision the Council will:
1. Apologise to Miss X for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
2. Make a payment to Miss X of £750 to acknowledge the Occupational Therapy provision Y missed from September 2024 to March 2025.
38. Within two months of this decision the Council will identify the issues that led to the failure to arrange Occupational Therapy provision for Y in line with their EHC Plan and report back to us on the steps it will take to avoid similar issues from happening in future.
39. The Council will provide us with evidence it has complied with the above actions.

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Decision

40. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations and service improvement.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman