Summary: Mrs X complained the Council failed to secure the provision set out in Y’s Education, Health and Care Plan. As a result, Mrs X says Y has not received the provision he is entitled to. We find the Council at fault for not securing provision. The Council has agreed to apologise and make a payment to recognise the injustice.

The complaint

1. Mrs X complains the Council failed to secure Occupational Therapy (OT) provision set out in her son, Y’s Education, Health and Care (EHC) Plan from September 2023. Mrs X also says the communication from the Council has been poor and it has failed to complete the actions it has said it would in its complaint responses. Mrs X says this means Y has not received the provision he is entitled to, and she has incurred costs as a result.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke to Mrs X about her complaint and considered information she provided. I also considered information received from the Council.
5. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and policy

6. A child or young person with special educational needs (SEN) may have an 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, including F: special educational provision (SEP).
7. The Council has a duty to make sure the child or young person receives the SEP set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)
8. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the SEP in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• Check the SEP is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• Check the provision at least annually during the EHC review process; and
• Quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

What happened

9. Y has SEN and his education is supported by an EHC Plan.
10. Y’s EHC Plan, provided for an individually tailored OT programme, incorporating 39 hours of 1:1 sessions of direct intervention.
11. In September 2023, Mrs X told the council Y was not receiving the OT that was set out in his EHC Plan and the Council agreed to source this.
12. In November 2023, Mrs X complained to the Council as it had failed to secure the OT programme. Mrs X said she had alerted the Council to this in September 2023 but, despite assurances, it had not resolved this or kept her updated.
13. The Council responded to Mrs X’s complaint in December 2023 and apologised for the delays. The Council said it would provide details of how it would secure OT provision as soon as possible and would offer catch up sessions to cover the missed provision.
14. In February 2024, Mrs X asked the Council to reconsider her complaint. Mrs X explained the Council still had not secured the OT provision and had not communicated any progress on this to her. Mrs X said she had now secured OT provision herself and asked the Council to refund the costs of this. Mrs X also pointed out that even if the provision she had secured continued until the end of the academic year, Y would be left with a shortfall of OT hours.
15. The Council responded to Mrs X’s complaint in April 2024. The Council agreed communication had not been at the expected standard and apologised for this. The Council also agreed it had failed to secure OT provision for Y since September 2023. The Council said it would consider a symbolic remedy to recognise the time and trouble Mrs X had taken to pursue the matter. It said it would also consider whether it could arrange OT catch-up sessions for Y to meet the shortfall in provision and decide whether to reimburse the costs Mrs X had already incurred.
16. In July 2024, Mrs X informed the Council she had paid for 10 hours of OT provision for Y and his college had now provided two hours of on-site OT provision. The Council agreed to refund Mrs X the costs of the OT sessions she had funded and make a payment of £300 to recognise the time and trouble she had taken to pursue the matter.
17. To date, Mrs X says the Council has not made payment to her or arranged catch-up sessions for Y.

Analysis

18. The Council is under a duty to secure all the Section F provision set out in Y’s EHC Plan. Failure to do so is fault. As the Council did not secure the OT provision for Y, Mrs X had to source this at a cost to herself. This is injustice.
19. The Council has offered to reimburse Mrs X for the costs of OT provision she incurred. I find once it does so, this is a suitable remedy to put Mrs X back in the position she ought to have been in but for the fault.
20. However, by the end of the academic year, Y had only received 10 hours of OT provision, funded by Mrs X, and two hours of provision funded by his college. This means Y did not receive 27 hours of the OT provision he was entitled to, which is further injustice. I find the Council ought to do more to address this.
21. From the information I have seen, Mrs X has had to do considerable chasing. The Council has not kept her updated and did not follow up on actions it agreed with her. This is poor practice and amounts to fault. This caused uncertainty for Mrs X and meant she had to keep chasing an outcome from the Council, which is injustice. The Council offered to pay Mrs X £300 to recognise the time and trouble she has spent resolving this. Once this is done, I find this is a suitable remedy to acknowledge the uncertainty and trouble caused to Mrs X.
22. In its final response to Mrs X’s complaint, the Council acknowledged it was at fault and had caused injustice to Mrs X. However, it did not put forward any tangible resolutions, but only said it would consider resolutions. The Council then took another three months to agree the resolutions it said it would consider. This is poor practice and amounts to fault. This means Mrs X spent more time in the complaint process than necessary, which is injustice.

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Agreed action

23. To remedy the injustice identified above, the Council has agreed to complete the following actions within one month:
• Apologise to Mrs X for the failure to secure provision for Y and for the lack of communication throughout. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
• Reimburse Mrs X for the 10 hours of OT provision she paid for, totalling £886.45.
• Pay Mrs X £300 to recognise the uncertainty and trouble she was put to in resolving this.
• Pay Mrs X £2,400 to be used towards the 27 hours of OT provision Y missed for the academic year 2023/24.
• Remind staff who deal with complaints of the importance of putting forward tangible and measurable resolutions when they have identified fault and injustice.
24. The Council should provide us with evidence it has complied with the above actions.

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Final decision

25. I find the Council at fault for failing to secure the provision set out in Y’s EHC Plan between September 2023 and July 2024. The Council has accepted the recommendations above and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman