Summary: Mrs X complained about how the Council dealt with her child’s Education, Health and Care Plan and its alleged failure to provide her child with Occupational Therapy provision as specified in the Plan. There was fault by the Council which caused injustice to Y and Mrs X. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs X complained the:
1. Council had not provided her child (Y) with Occupational Therapy provision since 2021 and as specified in Section F of Y’s Education, Health and Care (EHC) Plan which was issued on 25 August 2023
2. provisions in Y’s EHC Plan dated 25 August 2023 were inadequate
3. Council had refused to amend Y’s EHC Plan to include information provided by Y’s hospital about his diagnosis.
2. Mrs X said as a result, Y lost out on provision and support to meet his needs. She said the matter affected Y’s behaviour, mental health, sensory/physical health and his school attendance. Mrs X also said the matter caused her distress and the time and trouble chasing the Council.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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 SEND Tribunal in this decision statement.
6. 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)
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 have and have not investigated

8. I have investigated matters from when Y’s final EHC Plan was issued in August 2023 to when the Council issued its final response to Mrs X’s complaint in March 2024.
9. I have not exercised discretion to investigate matters from 2021 as they are late complaints and Y did not have an EHC Plan in place before August 2023.
10. I have not investigated Mrs X’s allegation that Y’s level of OT provision in his final EHC Plan dated 25 August 2023 was inadequate. This is because complaints about the contents of an EHC Plan are matters for the SEND Tribunal and therefore are out of our jurisdiction. I also find it was reasonable for Mrs X to have exercised her right of appeal after Y’s Plan was issued in August 2023, if she was dissatisfied with the contents of the Plan.

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How I considered this complaint

11. I have discussed the complaint with Mrs X and considered the information she provided. I also considered the information the Council provided in response to my enquiries.
12. I sent Mrs X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Law and guidance

13. 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.
14. The council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person. The Courts have said this duty to arrange provision is owed personally to the child and is non‑delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
15. Parents/young people have a right of appeal to the SEND Tribunal if they disagree with the description of a child or young person’s special educational needs (SEN), the SEN provision, the school named in the Plan, or the fact that no school or other provider is named.

Key events

16. Mrs X’s child, Y, has some health conditions and special educational needs.
17. The Council completed an Education, Health and Care (EHC) needs assessment for Y and it decided to issue him with an EHC Plan.
18. During the EHC Plan process, Y was scheduled to have a hospital appointment for a possible new diagnosis. The Council told Mrs X it planned to go ahead with finalising Y’s Plan to prevent any delays with issuing his final Plan. The Council told Mrs X that after Y’s hospital appointment, it would subsequently include any information (diagnosis and professional provisions) it received from Y’s hospital to his EHC Plan. Mrs X agreed.
19. On 25 August 2023, the Council issued Y’s final EHC Plan. Some of the provisions in the Plan included:

• Occupational Therapy (OT) team to conduct one school-based appointments per term for Y. A total of three visits per year to Y at his school setting and to work with Y directly as well as supporting the school staff to embed the OT advice into his daily routine.
• OT school visits should include time to observe Y taking part in relevant occupations and review his progress alongside the feedback from his school.
• Each OT visit should not be less than 90 minutes with an additional 60 minutes for liaison, report writing and relevant administration, totaling 2.5 hours.
• The number of OT visits should be delivered, and provision fulfilled within a 12‑month period, from date final EHC Plan was issued until his next 2023/2024 EHC Plan annual review.
• Sensory strategies to be embedded into Y’s school routine to help regulate his sensory system.

20. In September, Y’s hospital diagnosed him with Spatial Processing Disorder (SPD). Mrs X sent the Council some recommended interventions to be added to Y’s Plan to meet his needs based on his new diagnosis.
21. In September and October, Mrs X asked the Council when it would add Y’s new diagnosis and provisions to his EHC Plan.
22. In October, the Council requested an Educational Psychologist’s (EP) input and clarification about Y’s new diagnosis and the suggested recommendations Mrs X sent to it. The EP asked the Council to seek further information from Y’s hospital and from OT on how to best meet Y’s special educational needs (SEN) due to the complex nature of SPD. The Council informed Mrs X it needed to get further information from Y’s hospital based on the EP’s advice.
23. The Council contacted and chased Y’s hospital, OT and the EP for further professional information and recommended interventions required to meet Y’s SPD needs.
24. Mrs X continued to chase the Council for updates about the information from Y’s hospital. She also questioned why the Council had not been providing Y with the three sessions of OT provision per year at his school setting as set out in his EHC Plan. Mrs X said as a result, Y’s school placement had started to breakdown due to his behaviours and dysregulation, his school timetable was reduced, and his mental health was affected. Mrs X said she had tried contacting OT, but she had been unsuccessful.
25. In December 2023, Mrs X made a formal complaint to the Council about its poor communication with her and its failure to provide Y with the OT provisions at his school setting. She also complained about the Council’s delays with updating Y’s EHC Plan with his new diagnosis of SPD and the required provisions since September when he was diagnosed.
26. In January and March 2024, the Council issued its stage 1 and 2 responses respectively to Mrs X’s complaint. The Council:

• said there had been a delay in OT visits to Y’s school setting for the Autumn term in 2023/2024 academic year and it apologised to Mrs X on behalf of the OT service. The Council said it would ask OT for an update about its visits to Y’s school and it will notify Mrs X once it received the information.
• said it was still waiting to receive the additional information it requested from Y’s hospital about his SPD diagnosis and the required provisions needed to meet his needs. The Council said it would chase Y’s hospital again and that once it received the information, it would update Y's EHC Plan without further delay.
• apologised for its lack of communication with Mrs X which it said was due to work pressures and staff changes.

27. Between September 2023 and March 2024, Y continued to attend school and received other provisions contained in his EHC Plan. But Y’s school report showed his attendance was recorded as 88.9% for this period.
28. In March 2024, the Council received Y’s hospital reports with further information about the strategies/interventions to be provided to Y to meet his SPD needs.
29. Mrs X remained dissatisfied with the Council’s responses, and she made a complaint to the Ombudsman.
30. In its response to our enquiries, the Council said:

• it later received an update from the OT service about Y’s interventions. The Council confirmed OT said it received Y’s final EHC Plan in October 2023 and that due to some challenges it did not book an appointment until March 2024. Then it held a subsequent virtual appointment in April 2024 with Y’s school and Mrs X and a further appointment booked to visit Y’s school in June 2024.
• it held Y’s annual review in June 2024 and confirmed the strategies received from Y’s hospital about his SPD were added to Y’s final EHC Plan which was issued in August 2024.

Analysis

31. Councils have a legal duty to secure all the provision in Section F of an EHC Plan. In this case, the Council failed to provide the OT provision to Y at his school setting as contained in his August 2023 final EHC Plan. This was fault.
32. While I note the OT service made some virtual appointments with Y’s school and Mrs X, there was no evidence to show OT visited Y’s school and provided him with the specified OT provision in his Plan to meet his SEN between August 2023 and March 2024. This was fault and it caused Mrs X distress, frustration and the time and trouble chasing for updates about the OT intervention. It also meant Y lost out on the OT provision which was agreed to be delivered to him at his school setting over a significant period of approximately seven months. But I find the injustice caused to Y was mitigated. This is because Y continued to receive education (albeit with a reduced timetable) and received other provisions in his EHC Plan. This will be taken into consideration under the ‘agreed action’ section below in line with our guidance on remedies.
33. There was a delay of approximately six months with the Council obtaining further medical information about Y’s new SPD diagnosis and the required interventions to meet his SEN. The Council’s delay was from September 2023 when Y was diagnosed to March 2024 when the hospital provided it with its report. Although I acknowledge the Council contacted and chased Y’s hospital for the additional information it needed to include in Y’s Plan, however, I find it did not chase enough and it let the matter drift. This was fault.
34. I also find fault by the Council when it told Mrs X it would include the information from Y’s hospital about his new diagnosis and interventions to his August 2023 final EHC Plan. This is because the Council could not have known about any potential new diagnosis for Y and if it would have affected his SEN. This raised Mrs X’s expectation. And the Council’s delay in adding the new diagnosis and interventions to Y’s EHC Plan caused Mrs X uncertainty, distress and the time and trouble chasing the matter with the Council.
35. As regards the Council’s communication, it had accepted and apologised for its poor communication with Mrs X, and this was fault. It caused Mrs X distress, frustration and uncertainty.
36. I note the Council had apologised to Mrs X for its failings and has now added Y’s SPD diagnosis and provisions to his latest final EHC Plan. However, I do not consider its apology is proportionate to remedy the injustice caused to Y and Mrs X in line with our guidance on remedies. I will therefore address this under the ‘agreed action’ section below.

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Agreed action

37. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Mrs X and make her a symbolic payment of £400 to acknowledge the injustice caused by the Council’s faults as identified above. The apology should be in accordance with our guidance, Making an effective apology
• make Y a payment of £600 for the loss of some specialist Occupational Therapy provision as contained in his Education, Health and Care Plan due to the Council’s failings to secure these provisions for Y. This is calculated at £300 per term from September 2023 to March 2024, having taken the mitigating factors into consideration
• remind relevant staff of the importance of ensuring all specialist provision/therapy in Section F of Education, Health and Care Plans are secured and delivered to the child/young person to meet their special educational needs.
• remind relevant staff of the importance of providing people with updates about any outstanding Education, Health and Care Plan matters. The Council should communicate information effectively and in a timely manner to prevent complaints.

38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I find evidence of fault by the Council leading to injustice. The Council has agreed to take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman