Summary: Ms B complained the Council failed to ensure the school her son attended provided the occupational therapy provision specified in his Education, Health and Care Plan (EHC plan). She said this meant he missed that provision over six terms. She considered this meant his development and progress against goals set out in the EHC plan was delayed. There was fault by the Council which caused injustice. The Council will apologise and make a payment to Ms B.

The complaint

1. I refer to the complainant as Ms B. She complained the Council failed to ensure the school her son attended provided the occupational therapy provision specified in his Education, Health and Care Plan (EHC plan). She said this meant he missed that provision over six terms. She considered this meant his development and progress against goals set out in the EHC plan was delayed.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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.
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), 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)

Back to top

How I considered this complaint

6. I considered the complaint and documents provided by Ms B and spoke to her I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Ms B and the Council and considered their comments.
7. 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 found

Legal and administrative background

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 has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act 2014). 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)
10. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. But we consider councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.
11. The Special Educational Needs Code of Practice states that the first review of an EHC plan must be held within 12 months of the date of when it was issued, and then within 12 months of any previous review.
12. The Council is responsible for ensuring the review meeting happens (SEND Regulation 20(1)) but the council may delegate the holding of the meeting to a school.

What happened

13. I refer to Ms B’s son as X. In July 2020 the Council issued a revised EHC plan for X which named school D. The school is a specialist school for the provision of education for children with autism spectrum conditions. X started there in the September. The plan set out the occupational therapy (OT) support X needed. This referred to 5 OT contacts a year working directly with X in the school setting to assess his progress. And a further 5 to provide staff training and to update reports and programmes.
14. A review was carried out in January 2021. The Council did not attend the review but the school sent a report to the Council of the meeting and of the review paperwork. The report recommended changes to the EHC plan. The Council decided there was no need to change the plan. I do not know how this decision was conveyed to Ms B. But, in terms of this complaint, the significant issue is about the provision of OT support. The review document set out the OT support in a different way, and in more detail, than the existing EHC plan. It broke OT support down into three levels: universal, targeted and specialist. The specialist section was about what X would receive over and above the general provision being made in the school. This referred to:
• The occupational therapist facilitating 6 sessions in order to devise, plan and run a sensory motor circuit session/ fine motor session/ food play for 1 hour on a weekly basis. (6 hours direct, 3 hours indirect)
• After this time the occupational therapist would review and either continue for another block of 6 sessions (6 hours) or would support the class team to facilitate the sessions with the occupational therapist monitoring once a term (3 hours) based on review of individual goals/progress
• The occupational therapist would carry out a comprehensive baseline assessment and provide a written report for all new pupils within 12 weeks of them starting school. This would include liaison with families, other professionals and members of the TDT (10 hours direct and indirect).
15. In February 2021 the occupational therapist left the school. The school was not able to recruit a replacement.
16. In early February 2022 Ms B complained to the Council. She said that X had not received the OT provision since the occupational therapist left in February 2021. The Council has commented that this was the first point at which it was aware there was no occupational therapist at the school.
17. Later in February there was an annual review. An officer of the Council attended. I have no information to show there was any immediate action following the review.
18. The Council responded to Ms B’s complaint. In summary its position was that the school was a specialist provision and X would have received an appropriate level of education. There was further correspondence between Ms B and the Council over the summer. The Council offered to commission a one off assessment into X’s feeding issues but this never came to fruition.
19. An occupational therapist was appointed by the school in June 2022 but they left in September.
20. The Council completed changes to the EHC plan in October 2022. These incorporated the changed wording to the OT section as had been included in the schools January 2021 review paperwork.
21. Ms B complained to us in March 2023.

Analysis

22. As I say above we do not expect councils to maintain a watching brief to ensure a child is receiving the provision specified in an EHC plan. However, they should ensure they have appropriate systems in place to demonstrate due diligence in discharging this important legal duty. In this case there was an annual review in January 2021 and the Council received a report of that. That gave no indication of any problem in making the specified provision. The next significant event was in February 2022 when Ms B complained and there was an annual review of the EHC plan. From that point on the Council was on notice that there could be a problem so it was incumbent on it to satisfy itself that the school was making the provision.
23. The Council’s responses to Ms B indicate it had been in touch with the school but do not show any detail about the specifics of OT provision that was made for X. The Council states “we believe that X has received a level of support to ensure he is getting a good education”. This lacks specificity and does not demonstrate that the Council had properly satisfied itself about the provision the school was making.
24. In June 2022 an occupational therapist was appointed so at that point the Council had good reason to believe the school was able to make the specified provision. However they left the school in September so again the Council was on notice there was a potential problem with provision.
25. There was fault by the Council in its response when it became aware there was no occupational therapist at the school. I must therefore consider whether that has caused injustice to X. The Council’s position is, that for the period I am considering from February 2022, X received all the specific OT provision he should. If that were the case then even though there was fault it would not have caused any injustice to X as he would have still received the support he should.
26. Ms B does not agree that this was the case. A relevant point here is about what provision X should have been receiving. Ms B is taking this as the provision that was set out in the school’s paperwork for the January 2021 review. This sets out the OT provision in a different way breaking it down into three categories. Ms B sees this all as provision that X should have received from January 2021 so is using that as the benchmark against which to view the actual provision X did receive.
27. The Council’s position is that it is only the last section of specialist provision that is specific to X and that is the relevant level which has to be used as the basis for an assessment of what X should have received.
28. I understand Ms B’S view but I consider the Council’s position is sound. The two earlier sections referring to OT provision are clearly wider provision within school and not something that was specific to X. I also accept that X did have direct OT input in June, July and September 2022. But looking overall at the period from February 2022 to January 2023 he did not receive the provision that was specified in the January 2021 document. That was the occupational therapist facilitating 6 sessions in order to devise, plan and run a sensory motor circuit session/ fine motor session/ food play for 1 hour (6 hours direct, 3 hours indirect). And then that being followed up by a review and a possible block of 6 further sessions (6 hours).
29. Therefore there has been some injustice to X in terms of a shortfall in the OT provision made for him. I accept the Council’s point that he was in a specialist setting so he would have been getting appropriate education in a wider sense. But he did not receive the specific OT support he should over that period and the Council should make a symbolic payment to remedy that injustice.

Back to top

Agreed action

30. The Council will, within a month of the final decision, apologise to Ms B and pay her £500 to acknowledge the impact of the lost provision.
31. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

32. There was fault which caused injustice.

Back to top

Investigator's decision on behalf of the Ombudsman