Summary: Mrs X complained the Council failed to secure the provision in her child, Y’s, Education, Health and Care Plan. We found there was no fault by the Council in how it secured the provision for Y.

The complaint

1. Mrs X complained the Council failed to secure the correct Occupational Therapy (OT) assessment as written in her child, Y’s, Education, Health and Care (EHC) Plan. She said the Council’s communication with her about this matter was poor. She said this has caused distress for Y and their family, as Y wasn’t able to get the right support.

Back to top

The Ombudsman’s role and powers

2. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
3. 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.
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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(1), as amended)
6. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
7. We provide a free service, but must use public money carefully. We do not start or continue an investigation into a complaint, or part of a complaint, if we decide:

• we could not add to any previous investigation by the organisation, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

What I have and have not investigated

8. I have investigated whether the Council failed to secure the provision in Y’s EHC Plan. I have considered if it was at fault or not based on an ordinary interpretation of the provision written in Y’s EHC Plan.
9. The wording in Y’s EHC Plan was decided during an appeal to the Tribunal. As explained in paragraph two, we cannot investigate any matter which was part of the appeal and so we cannot consider if the wording of the provision was suitable.
10. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did.
11. On the broader point, we cannot always respond to complaints in the level of detail people might want. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
12. Mrs X complained about issues relating to Y’s OT assessment, such as the quality of the assessment and how the OT shared Y’s information, which I have not investigated. As it would not be proportionate for me to investigate every issue in this complaint, I have only investigated the substantive issue of whether the Council secured the provision in Y’s EHC Plan. Other organisations, such as the Health and Care Professions Council and the Information Commissioner’s Office, are better placed to consider some of the non-substantive issues in Mrs X’s complaint.
13. I have not investigated the Council’s communication with Mrs X. This is because we could not add to the investigation already carried out by the Council and the Council has already offered Mrs X a sufficient remedy for this and so further investigation by us would likely not lead to a different outcome.

Back to top

How I considered this complaint

14. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
15. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Relevant law and guidance

EHC plans

16. A child or young person with Special Educational Needs (SEN) 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. Section F contains the special educational provision needed by the child or the young person. 

Special educational provision

17. Councils have 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).

What happened

Y’s EHC Plan

18. In 2023 Mrs X appealed Y’s EHC Plan to the Tribunal. After the appeal, the Tribunal ordered the Council to make changes to Y’s EHC Plan.
19. In February 2024 the Council issued Y’s amended EHC Plan. Section F said “An assessment of [Y]’s Sensory Processing difficulties” through a “[o]ne off assessment” by an “OT with sensory processing qualification”.

The OT assessment

20. In May 2024 an OT assessed Y at school and produced a report. The OT sent this report via email to the Council and Mrs X. The report could not be opened without a password.
21. On the same day Mrs X contacted the OT and asked them not to share the report with the Council. The OT explained it had already sent the report to the Council, as this was standard procedure, but had put a note on the file to not share the password with the Council. This meant the Council could not open or read the report.
22. A few days later Mrs X contacted the Council and explained she was unhappy with the OT report because it was not a true reflection of Y’s needs and conditions. She told the Council she refused it permission to use the report and asked it to carry out a new OT assessment.
23. The Council replied and said it had sought advice from its legal team about whether it needed to carry out a new OT assessment and would let her know once it had an answer.

Mrs X’s complaint

24. In January 2025 Mrs X again asked the Council to carry out a new OT assessment. She said the assessment should take place in a clinical setting, not a school, for it to properly assess Y’s needs.
25. In March 2025 the Council discussed Mrs X’s request for a new OT assessment at a panel meeting. It decided it would not arrange a new OT assessment for Y. It explained to Mrs X this was because it had already funded an OT assessment, even if Mrs X disagreed with the OT report. The panel recommended the Council arrange a meeting with Mrs X and the OT to discuss the report further.
26. Mrs X then complained to the Council about its decision. She complained the OT assessment was not suitable and the Council’s communication with her had been poor.
27. The Council apologised to Mrs X for its poor communication. It offered Mrs X £150 to recognise the injustice caused to her by this.
28. The Council said it would not arrange a new OT assessment, because it felt it had met its legal duty to provide an OT assessment. It could not read the report because Mrs X had refused permission to share the password to open it. It said it would not be a good use of public money to arrange for a new assessment without first reading the report because it could not know if the report was suitable or not.
29. Mrs X then complained to us. She said the Council had failed to arrange a full in-clinic OT assessment for Y and the assessment it did arrange was not suitable. She said this meant the Council had failed to provide the support in Y’s EHC Plan.

Analysis

The OT assessment

30. Mrs X complained that Y’s OT assessment took place in a school and not in a clinic.
31. Y’s EHC Plan did not specify the OT assessment had to take place in a clinic.
32. Mrs X explained to us the wording in the final EHC Plan did not match the discussions during the appeal. She said both parties verbally agreed the OT assessment would be an in-clinic assessment. She said the Council should therefore have provided an in-clinic assessment, because that was what it had agreed to in the appeal, even if it wasn’t worded that way in the EHC Plan.
33. As we cannot investigate something linked to a tribunal appeal, we cannot consider if the wording in section F of the EHC Plan reflected what was agreed in the appeal. Therefore, we are only able to consider if the Council secured the provision as written in the final EHC Plan.
34. The EHC Plan did not say the assessment must take place in a clinic. Therefore, based on what section F of Y’s EHC Plan said, there was no fault by the Council by arranging for an OT to complete the assessment at Y’s school.

Request for a new OT assessment

35. Mrs X also complained about how the Council considered her request for a new OT assessment.
36. Emails between Mrs X and the Council show the Council did not have the password to access the report until May 2025, after it asked Mrs X to give her permission for it to read the report. This was one year after the report was available and was after the Council had already finished considering Mrs X’s complaint.
37. Without reading the report, the Council could not make an informed decision about whether the report was suitable.
38. Despite this, the Council still considered Mrs X’s request for a new OT assessment at a panel meeting. Therefore, there was no fault by the Council on this point, because it still considered her request, despite having limited information available to it.

Poor communication

39. The Council investigated Mrs X’s complaint and accepted its communication with Mrs X was poor. It apologised to her for this and offered £150 to recognise the injustice caused to Mrs X by this fault.
40. Mrs X rejected the £150 and complained to us.
41. We will not investigate this part of Mrs X’s complaint. Further investigation by us on this point is unlikely to add to that already carried out by the Council and unlikely to achieve anything further because the Council has already accepted fault and offered a remedy. The apology and offer of £150 is in line with our guidance on remedies and therefore sufficient to remedy any distress caused to Mrs X by the Council’s poor communication.

Back to top

Decision

42. For the parts of Mrs X’s complaint I can investigate, I find no fault. We cannot investigate the parts of Mrs X’s complaint which are connected to an appeal to a tribunal. Further investigation by us into the remaining issues in Mrs X’s complaint would likely not lead to a different outcome.

Back to top

Investigator's decision on behalf of the Ombudsman