Summary: Mr B complains the Council did not ensure his son, Y, received occupational therapy outlined in Section F of his Education Health and Care (“EHC”) plan. Mr B says Y needed this support to help his development and that as a result educational targets could not be updated in his EHC plan. The Ombudsman finds fault with the Council for not ensuring Y received the required occupational therapy.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council did not occupational therapy (“OT”) to Y in line with his EHC plan, between May 2022 and February 2023. He says this is support Y needed and that, as a result, Y’s educational targets have not been updated.

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What I have and have not investigated

2. I have investigated Mr B’s complaint that the Council did not provide the support outlined in Section F of Y’s EHC plan. I have not investigated whether Y received support in line with Section G of the EHC plan. This is because Section G relates to health, and it is the responsibility of health authorities to ensure Y receives this. Mr B would need to make a separate complaint to the Parliamentary and Health Service Ombudsman about any failure to provide health provision.

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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 an injustice, 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)

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How I considered this complaint

5. I considered the information Mr B provided and an investigator spoke to him about the complaint. I also considered information provided by the Council.
6. A copy of the draft decision was sent to Mr B and the Council. I considered the comments received on the draft decision.
7. 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

Law and Guidance

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
9. The Council is responsible for making sure that educational arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
10. 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 and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

Background

11. Y is diagnosed with epilepsy, Autism Spectrum Disorder and sensory processing difficulties.
12. Y joined a mainstream school in September 2021. His EHC plan included OT support, but the Council was not able to arrange for an OT to deliver this support. Therefore, Mr B arranged for a private OT and the Council reimbursed him for the cost.
13. In March 2022 the Council issued an amended EHC plan for Y. Section F of the EHC plan included the following OT support:
• The school to embed OT advice into the classroom and school routines
• Staff to be trained in delivering behavioural and sensory strategies
• Half termly appointments by an OT, six times per year, to review educational goals and outcomes
• OT to contribute to the annual review process
14. In May 2022, the Council informed Mr B that it had identified an OT to provide the service. However, Mr B says the Council then did not arrange for the OT support to start despite him chasing.
15. Y started his new school placement in September 2022. The Council says the school was out of its area and therefore its OT service was not responsible for continuing to provide OT support. The OT team therefore closed its referral for Y.
16. Mr B continued to raise concerns that Y was not receiving the required OT support at his new school. Mr B says the school was meant to have an in house OT but there was a vacancy at that time, so the school could not provide this. He says the Council did not arrange anything in its place. It was not until the end of March 2023 the school could start providing OT support to Y.
17. Mr B says the lack of OT support means Y’s targets have not been updated.

Findings

18. I find fault in how the Council managed Y’s OT support from September 2022 to March 2023.
19. The Council’s response says that when Y moved to his new school, it was no longer the OT team’s responsibility to provide support. This is because the school was outside its area.
20. This is not correct. The Council was responsible for ensuring that Y received all support set out in Section F of the EHC plan.
21. It is possible that some confusion has been caused because Y has OT listed in both Section F and Section G of the plan. This means it may have been more practical for the Council to allow one team to be responsible for organisation of all OT support. In this case that OT team is a body that is part of the NHS.
22. However, there is a clear legal distinction that the Council is responsible for Section F, and the NHS is responsible for Section G. If the NHS OT team decided it was not responsible for support outside its area, that does not make any to the Council’s responsibility to provide the support outlined in Section F. The Council should have taken responsibility for ensuring that Y received the OT support at his new school, if the NHS OT team was not going to provide this, and the school was not able to provide it in the short term.
23. The only reason the Council would not continue to be responsible, is if the person becomes ordinarily resident in another area, meaning a different council takes over responsibility for management of the EHC plan. However, even in that circumstance, the Council would need to ensure continuity of the support, until such time as the new council has taken over and any dispute about residency is resolved.
24. I note the school is now providing OT support, so Y’s goals will now be reviewed and updated, and the OT will have input towards future annual reviews. However, I also recognise that the lack of support over several meant Y fell behind in terms of his goals being reviewed and advanced as specified in his EHC plan.
25. I recommend the Council pay £500 towards additional OT support, to assist Y in catching up for the missed provision from September 2022 to March 2023. I also recommend the Council send a reminder to staff working in its SEN team that the Council remains responsible for ensuring that all support outlined in Section F of an EHC plan is provided, including where a young person is attending school that is not in the Council’s area. If a school or NHS service is not able or willing to provide the support, the Council must ensure it identifies suitable alternative provision.

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Agreed action

26. Within one month the Council has agreed to:
• Apologise to Mr B for not ensuring Y received the OT support set out in Section F of his EHC plan
• Pay £500 towards additional OT support for Y, either through the Council directly commissioning the support, or to reimburse Mr B for engaging private OT support
• Send a reminder to staff working in its SEN team that the Council remains responsible for ensuring that all support outlined in Section F of an EHC plan is provided, including where a young person is attending school that is not in the Council’s area. If a school or NHS service is no longer able or willing to provide the support, the Council must ensure it identifies suitable alternative provision.
27. The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. I have completed my investigation. I find fault with the Council for not ensuring Y received OT support in line with his EHC plan.

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Investigator's decision on behalf of the Ombudsman