Summary: Mrs B complained that the Council had failed to provide Occupational Therapy support in accordance with her son C’s Education, Health and Care Plan since November 2023. We found the Council’s inability to find appropriate provision until January 2025 was service failure which caused injustice to both C and Mrs B. The Council has agreed to apologise to Mrs B, pay her £1650 and has provided us with information about the steps it is taking to improve the supply of Occupational Therapists.

The complaint

1. Mrs B complained that Suffolk County Council (the Council) failed to provide Occupational Therapy (OT) support in accordance with her son C’s Education, Health and Care (EHC) Plan since September 2022. This has caused C to miss out on essential support at school and Mrs B much inconvenience and distress in chasing up the matter.

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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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What I have and have not investigated

4. Mrs B first complained to the Council in 2023. The Council resolved the complaint in November 2023 by agreeing to make more efforts to secure the OT support and paying Mrs B £2850 for three terms without the correct support. My investigation starts from this point, as the previous fault and injustice has been remedied.

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How I considered this complaint

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

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What I found

EHC Plan

7. 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. Section F details the special educational provision needed by the child. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.
8. The council has 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). 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)  

Service failure

9. 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. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

What happened

10. Following a successful appeal to the Special Educational Needs and Disability Tribunal, the Council in late 2022 issued an EHC plan for C including support from an Occupational Therapist to devise programmes for occupational therapy (OT) support to be provided in school, to train school staff to implement the programs, to carry out termly reviews and meetings with Mrs B.
11. By November 2023 the Council had still not found an OT provider and Mrs B was chasing the matter. In January 2024 the Council provided a summary of its efforts to find a suitable provider. This included approaches to 15 different providers. All had refused due to either location or no capacity and long waiting lists. The Council was going back to two providers to discuss the refusals.
12. At the end of April 2024 Mrs B made a formal complaint about the continuing lack of provision and confusion over the information given about one possible provider. The Council responded at the end of May 2024 acknowledging the continuing lack of OT provision and outlining its continuing efforts to resolve the problem. It suggested a possible reassessment of C’s needs. Mrs B replied that this was unnecessary and none of the actions were making a difference to the situation. the Council sent a further response in June 2024 providing an explanation for the confusion over the responses from one provider. It said it had continued to approach new providers or reapproach previous ones but without success.
13. Mrs B remained unhappy and escalated the complaint to stage two of the Council’s complaints process in July 2024. In early August 2024 the Council said it was not proceeding to stage two as it had already provided a thorough response at stage one. It directed Mrs B to our office. Mrs B complained to us in September 2024.
14. The Council offered Mrs B a personal budget to arrange her own OT support. She declined this as the EHC Plan specified direct provision. At the end of October 2024 the Council found a provider and the support started in mid-January 2025.

Analysis

15. The Council failed to make OT provision as detailed in section F of C’s EHC Plan from the end of November 2023 until mid-January 2025, approximately three terms. I can see the Council made significant efforts to source provision during this period but was unsuccessful. This was service failure which caused injustice to C and Mrs B. C was left without essential support detailed in his EHC Plan and Mrs B was caused frustration and distress chasing up the matter over an extended period.

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Action

16. In recognition of the injustice caused to Mrs B and C, I recommended the Council within one month of the date of my final decision:
• apologises to Mrs B; and
• pays her £1350 for the benefit of C’s education and £300 for her distress and inconvenience.
17. The Council has agreed to this and should provide us with evidence it has complied with the above actions.
18. I also asked the Council to:
• send me details of how many others are affected by the difficulty in sourcing OT support and the steps the Council is taking to improve the supply of available therapists.
19. The Council has said that it has a list of 28 OT providers across the county but only one was responding to requests. It said it was writing to the providers expressing concerns about the lack of responses and the shortage of provision, along with the impacts this was having on children and young people.

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Decision

20. I find fault causing injustice. I consider the agreed action is a proportionate way of putting right the injustice caused to Mrs B and C and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman