Summary: Mrs X complained the Council failed to consider and respond to her request for a personal budget for tuition outlined in her child, Y’s Education, Health and Care (EHC) Plan. The Council was at fault. It accepted it failed to respond to her personal budget request or offer her a right of review. The Council was also at fault for significant complaint handling delays. The Council agreed to apologise and make a payment to Mrs X to acknowledge the injustice this caused.

The complaint

1. Mrs X complained the Council failed to consider and respond to her request for a personal budget increase during her child, Y’s Education and Health Care (EHC) Plan annual review which it also failed to carry out in line with relevant law.
2. Mrs X said this denied her a right of review and led to the Council changing Y’s tuition arrangements at short notice causing them distress and to disengage.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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(1), as amended)
5. 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

6. 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)
7. Mrs X first complained to the Council in September 2023. Mrs X complained to us in early 2024 about the Council’s failure to respond to her complaint. The Council provided a final response in September 2024. Mrs X then complained to us again about this matter (and others) in early 2025.
8. Although this complaint is late there are good reasons to investigate it now because the Council delayed significantly in providing responses to Mrs X’s complaint. I have therefore used my discretion to investigate.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X 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

Relevant law and guidance

EHC Plans

11. 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.

SEND Tribunal

12. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
13. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

EOTAS (Education Otherwise Than At School)

14. Where it is agreed that a school or college is not appropriate for a child or young person with an EHC Plan the council can arrange for them to receive the specialist provision they require somewhere else. This will be set out in the EHC Plan and the council remains responsible for securing and funding that provision. This is known as EOTAS or EOTIS.

Annual Reviews

15. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Where the council proposes to amend an EHC Plan following a review, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
16. Council’s should arrange and carry out annual reviews as usual even if there is an ongoing SEND tribunal appeal.

Personal Budget

17. A personal budget is the estimated amount of money which would be needed to cover the cost of making the special educational provision specified in the EHC Plan. Personal budgets are optional. If someone would like the Council to identify a personal budget they can make a request for it to do so.
18. Someone can receive part of the personal budget as a direct payment, so that they could commission or arrange provision in the EHC Plan themselves. The direct payment must be enough to cover the cost of arranging the provision.
19. The Council can refuse to make a personal budget or make a direct payment. This decision cannot be appealed to the Tribunal but the applicant can ask the Council to formally review the decision.

What happened

20. Mrs X has a child, Y who has an EHC Plan. Y receives their education and specialist provision in the EHC Plan through an EOTAS package.
21. During the 2022/23 academic year Y received 10 hours of direct tuition from Company A. This provision was not written into the EHC Plan but was commissioned by the Council following recommendations after a previous Ombudsman investigation.
22. Mrs X had appealed Y’s final EHC Plan dated June 2022 to the SEND tribunal. The tribunal heard Mrs X’s appeal in June 2023 and towards the end of June issued an order which included that Y’s Plan be amended to include 14 hours of direct tuition.
23. At the end of June 2023 an annual review was held. As part of the annual review Mrs X requested a personal budget for the Council to commission and pay Company A directly for Y’s 14 hours of tuition. The Council told Mrs X a couple of weeks later that it was communicating with Company A about the extra hours of tuition Y now required. The Council did not complete the annual review.
24. The Council issued Y’s final EHC Plan following the SEND tribunal order in July 2023. Section J of the EHC Plan (personal budget section) stated the personal budget was ‘TBC’ (to be confirmed).
25. On the 1 September 2023 Mrs X spoke with a Council officer on the telephone who advised her that 11 hours of the direct tuition was being moved to a different company, Company B and this would begin on 4 September. Mrs X asked the Council about her personal budget request for Company A however the Council told her she had not asked for the personal budget in time before the last Plan was issued.
26. In mid-September 2023 Mrs X complained to the Council about its failure to involved her and Y in the decision to move Y’s tuition to Company B and for its handling of her personal budget request. Mrs X said the Council’s handling of the matter left her no time to prepare Y for the change to Company B. She said had the Council properly responded to her personal budget request in July, even if it was negative, she could have asked for review. She would also have been in a better position to manage the change for Y. Since the new arrangement began Mrs X said Y’s engagement had dropped from 10 hours the previous term to less than 30 minutes a week.
27. The Council responded to Mrs X at stage one of the complaints process in May 2024. It apologised for the delay in responding. It said the annual review held in June 2023 was held while the tribunal process was still live. For this reason the Council did not action the review, although its decision would have been to maintain the Plan. The Council said that following the tribunal order it had changed 11 hours to Company B due to costs. It said another annual review was held at the end of February 2024 and records of this show Y had built good relationships with staff from Company B and their engagement had increased. Although the review records note Mrs X wanted an alternative tuition service believing Company B could not meet Y’s needs. The Council offered Mrs X £450 to acknowledge the delays in responding to the complaint.
28. Mrs X asked the Council to escalate the matter to stage two of the complaints process in May 2024 and the Council responded in September 2024. Within this response the Council accepted Mrs X’s personal budget request in July 2023 and provided a decision and right of review. The Council accepted this caused Mrs X a missed opportunity to request the increased budget. The Council explained the decision to move to Company B was around the costings. It said Company B was an appropriate company and therefore Y has been able to receive a suitable education. It noted Y had a new final EHC Plan as of May 2024.
29. The Council accepted that regardless of an ongoing appeal it should have processed the June 2023 annual review paperwork. The Council reiterated an offer of £450 for the injustice caused.
30. Mrs X remained unhappy and complained to us.

My findings

31. The Council has accepted that it should have considered Mrs X’s personal budget request and it recognised that it should have provided a decision and a review right. Not doing so was fault. While the decision to commission Company B would likely have remained the same, it would have given Mrs X the opportunity to ask for a review and better prepare Y for the change in tuition arrangements. This would likely have led to Y engaging much sooner.
32. The Council also accepted that regardless of the ongoing tribunal process it should still have process the annual review paperwork. Not doing so was fault. However, this did not cause a significant injustice as Y had a new EHC Plan at the same time following the tribunal process.
33. The Council’s complaint handling was also poor and significantly delayed. It took one year between Mrs X complaining for her to receive a final response. That was fault and caused Mrs X frustration.
34. The faults in this matter occurred in 2023. Since then we have made various service improvement recommendations to the Council following other Ombudsman investigations which found similar faults. Given this, and that the Council accepted the areas where fault was found I have not made any further service improvement recommendations.

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Agreed action

35. Within one month of the final decision the Council agreed to apologise to Mrs X and Y and pay her a total of £700 to recognise the distress and frustration caused to them both by the failure to consider her personal budget request in 2023 and for the poor and delayed complaint handling. 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.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I find fault causing injustice. I have made recommendations for the Council to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman