Summary: Mrs X complained the Council delayed putting Occupational Therapy provision in place as outlined in her daughter’s (Y) Education, Health and Care (EHC) Plan following a SEND tribunal order. The Council is at fault for delaying providing some of the Occupational Therapy provision Y requires. This caused Mrs X distress, frustration and uncertainty and impacted Y’s development. The Council should make a payment to recognise this.

The complaint

1. Mrs X complained the Council failed to seek advice from Occupational Therapy (OT) during the Educational, Health and Care (EHC) needs assessment for her daughter. She also complained the Council communicated poorly throughout the appeal process and delayed putting OT provision in place following a SEND tribunal order.
2. Mrs X says Y has had an EHC Plan for 21 months and is still not receiving OT provision. This has caused her distress, frustration and uncertainty about the provision her daughter would receive.

Back to top

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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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(i), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. It also handles appeals against discrimination by schools or councils due to a child's disability. We refer to it as the SEND Tribunal in this decision statement.

7. 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)
8. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

What I have and have not investigated

10. I have not investigated how the Council assessed Y’s Special Education Needs, its failure to seek advice from OT or the absence of OT provision in Y’s Plan prior to April 2024. This is because Mrs X used her right of appeal to the SEND tribunal about these matters. In March 2024, the tribunal ordered the Council to amend section F of Y’s EHC Plan to include OT provision. The Council issued Y’s amended final Plan at the start of April 2024. Therefore, I have investigated the lack of OT from April 2024.
11. I have also not investigated the Council’s communication during the appeal process. This is because the way the council conducts itself within the Tribunal is a matter for the Tribunal.

Back to top

How I considered this complaint

12. I spoke to Mrs X about her complaint and considered information she provided.
13. I considered information the Council provided.
14. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

Back to top

What I found

EHC Plans

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. Councils are responsible for making sure all the arrangements set out in in the EHC Plan are put in place.
17. 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.

Back to top

What happened

18. Mrs X has a daughter (Y) of primary school age. Y has special educational needs and an EHC Plan which outlines the specialist provision she requires. Mrs X disagreed with the contents of the plan as the Council did not include OT provision. Therefore, in April 2023 she used her right of appeal to the SEND tribunal.
19. Prior to the tribunal hearing, the Council had agreed at the annual review in January 2024 to amend the EHC Plan to include OT provision. However, the Council did not do this until the tribunal issued a consent order in March 2024.
20. The Council issued Y’s amended EHC Plan in April 2024 which included six OT sessions, each an hour long in section F. The sessions focus on developing processing, self-regulation and functional skills. It stated that following the block of treatment, an OT would review the provision every half term to monitor and adjust strategies.
21. Mrs X raised a stage one complaint after receiving the tribunal outcome. Mrs X says given the Council agreed to OT provision in January 2024 Y should have received this since at least then and is currently still not receiving it.
22. The Council issued a stage one response in April 2024 not upholding the complaint. The Council said it had a duty to provide OT provision as identified within Y’s plan since April 2024. It also says Y’s keyworker has been in communication with the OT service to ensure Y is able to access the OT therapy as set out within her EHC Plan.
23. Mrs X escalated her complaint to stage two but the Council rejected this on the basis the stage one and tribunal hearing had already addressed her concerns in full.
24. Mrs X remained unhappy with the Council’s handling of the matter and complained to us.
25. Whilst we are unable to look at Mrs X’s complaint of matters prior to April 2024, Mrs X says Y is still not receiving OT provision to date (October 2024). She has told us Y now has an appointment arranged with OT for November 2024.

The Council’s response to our enquiries

26. The Council says most of the OT provision is in place and Y has received the following since May 2024:
• One direct school and parent outcome setting session held remotely for one hour;
• Four direct school-based sessions of one hour each;
• One direct parent bridging session held remotely with Mrs X to help bridge input from school into home, focusing on home outcomes for Y.
27. The Council says one of the goals set in the initial session was for Y to improve functional skills such as handwriting. For Y to get support with handwriting needs, the Council referred her for a functional clinic appointment with the mainstream OT team. This is the part of the OT provision Y is still waiting for. Once the service assesses Y, it says it will implement a more detailed intervention. The Council says local NHS services agreed to implement the provision when it issued the amended EHC Plan but it did not anticipate that there would be a delay.

My findings

28. Y was entitled to OT provision from April 2024 when the Council issued her amended final EHC Plan. The Council has failed to provide part of the OT provision to improve functional skills from April 2024 to present (October 2024). This six month delay is fault because the Council has a legal duty to ensure provision in line with section F is secured and provided.
29. When the Council became aware there would be a delay in Y getting a functional clinic appointment for assessment, it should have considered commissioning a private OT service. I cannot comment on the extent the Council’s actions have impacted Y as the outcome of the assessment and the subsequent intervention Y requires is currently unknown. However, the delays have caused Mrs X distress, frustration and uncertainty about the provision Y would receive.

Back to top

Agreed action

30. Within one month of the final decision the Council has agreed to take the following action:
1. Apologise to Mrs X to recognise the distress, frustration and uncertainty caused by the delays implementing part of Y’s OT provision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Pay Mrs X £150 to recognise the distress, frustration and uncertainty caused by the delays implementing part of Y’s OT provision.
3. Once Y has been assessed by the mainstream OT team, consider whether she requires more OT sessions in relation to handwriting. This is to ensure Y is in a similar position to what she would have been in, had she received the provision since April.
31. Within two months of the final decision the Council has agreed to take the following action:
1. Provide us with an action plan specifically around how the Council intends to reduce mainstream OT wait times and a further update on its progress with the backlog three months after providing the plan.
32. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

33. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman