Summary: Mrs X complains the Council failed to ensure her child, Y, had sufficient full-time education, put in place the provision outlined in Section F and failed to name a suitable placement. Mrs X also says the Council failed to carry out an annual review, act on or respond to her request for a personal budget and carry out agreed actions or respond to communications. Mrs X says this has caused her and her family distress and that Y has missed educational provision. We have found fault in the Councils actions for failing to complete the annual review process, ensure provision was in place in line with Y’s EHC plan and delay in dealing with a request for a personal budget. The Council has agreed to issue Mrs X with an apology and pay her a financial payment.

The complaint

1. Mrs X complains the Council failed to ensure her child, Y, had sufficient full-time education, put in place the provision outlined in Section F and failed to name a suitable placement. Mrs X also says the Council failed to carry out an annual review, act on or respond to her request for a personal budget and carry out agreed actions or respond to communications.
2. Mrs X says this has caused her and her family distress and that Y has missed educational provision.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. 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)
7. 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

8. I have considered Mrs X’s complaints the Council failed to complete Y’s annual review, failure to act on/respond to a request for a personal budget, failure to carry out actions or respond to correspondence. I have also considered what provision was provided for Y between September 2024 and March 2025
9. I have not considered Mrs X’s complaints of missed provision before September 2024 and the Council’s failure to name a placement. This is because Mrs X appealed Section I of Y’s EHC Plan to the SEND Tribunal.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs X and the Council were invited to comment on my draft decision. I have considered any comments received before making a final decision.

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What I found

12. A child or young person with special educational needs 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. 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.
13. As part of the initial assessment, councils must gather advice from relevant professionals, named in the Regulations (SEND Regulation 6(1)). The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SaLT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.
14. The EHC Plan is set out in sections which include:
• Section B: Special educational needs;
• Section F: The special educational provision needed by the child or the young person;
• Section I: The name and/or type of educational placement;
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.
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. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The Regulations set out the procedure for carrying out a review. The annual review begins with consulting the child’s parents or the young person and the educational placement. The Regulations set out people a council must invite. (Section 20 Special Educational Needs and Disability Regulations 2014)
16. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. The process is only complete when the council issues a decision about the review. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
17. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

Personal Budget

18. A personal budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. A child’s parent or the young person has the right to request a personal budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a personal budget during a statutory review of an existing EHC Plan.
19. Personal budgets are either:

• a fund arranged and managed by the person themselves;
• a fund organised and managed by the council or a school;
• a fund organised and managed by a third party on behalf of the child; or
• a combination of these.

20. If a council refuses a request for a personal budget, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

What happened

21. Mrs X raised a previous complaint with the Ombudsman in early 2023 which concluded in May 2024.
22. Mrs X sent various emails to the Council in September 2023 which she did not receive a response to.
23. The Council contacted Mrs X in late September 2023 to say it would hold an annual review for Y in late October 2023.
24. The Council emailed Mrs X in October 2023 to say the main provider could not attend but that the annual review would go ahead. Mrs X told the Council she was unhappy with this. Mrs X appealed to the SEND Tribunal in October 2023 about Sections B, F and I.
25. The Council held the annual review meeting at end of October and re-arranged a further meeting at the beginning of November 2023. Mrs X sent various emails to the Council in November 2023 asking for an update.
26. The Council emailed Mrs X in late November 2023 to provide an update. Mrs X responded to say she was unhappy the Council had not completed actions it had agreed to. The Council emailed Mrs X and apologised and said it would provide a further update by early December 2023.
27. Mrs X raised a complaint with the Council in early December 2023 to say that Y was not receiving sufficient and efficient full-time education, the provision in Section F had not been put in place and the Council had failed to carry out an annual review. Mrs X also said the Council had failed to act on her request for a personal budget or carry out actions it had agreed to.
28. The Council acknowledged Mrs X’s complaint and said it would issue a response by early January 2024. Mrs X chased the complaint response several times during January and February but did not receive a reply.
29. The Council wrote to Mrs X in late February 2024 to apologise for the delay in issuing a response to her complaint.
30. The Council emailed Mrs X in early April 2024 to say it was looking into a personal budget and asked what she would want to include in it. The Council made a decision on funding for the personal budget in mid-April 2024.
31. A further annual review took place in mid-April 2024.
32. Mrs X asked for her complaint to be escalated to stage two in early May 2024.
33. The Tribunal issued an Order in May 2024 which said all parties agreed that Y needed an Educated Other Than At School (EOTAS) package.
34. Mrs X emailed the Council in late May 2024 to query the items in the proposed personal budget. The Council responded to this in early June to confirm the items which would be covered in the personal budget.
35. Mrs X emailed the Council to say the costs included in the personal budget needed to be amended. Mrs X sent a further email in mid-June to query the costs included and said she could not accept the personal budget as it stood.
36. The Council responded and answered Mrs X’s questions and urged her to accept the personal budget otherwise it may not be in place.
37. Mrs X responded to say she could not accept the personal budget as it was.
38. The Council contacted a provider in June 2024 regarding sourcing Y’s tutoring provision.
39. The Council sourced two potential tutoring providers in June and early July 2024 but Mrs X advised neither was suitable due to availability.
40. The Council issued a stage two response to Mrs X’s complaint in early July 2024 and apologised for the delayed annual review. The Council said this was because of an active tribunal case. The Council acknowledge it did not send a letter after the annual review took place which it should have but say this made no material difference. The Council accepted difficulties in putting in place a full-time package for Y but say it made reasonable efforts to do so. The Council upheld Mrs X’s complaint regarding trying to set up a personal budget and its failure to respond to communications. It offered Mrs X £650 as a resolution to the complaint.
41. Mrs X emailed the Council in mid-July 2024 to say she was not willing to accept the personal budget in the form the council had presented.
42. The Council sourced a further tutoring provision in July 2024 and made a referral to Mrs X’s requested tutoring provision in August 2024.
43. The Council also found another tutoring provider in August 2024 and Y’s final EHC Plan in September 2024.
44. Mrs X told the Council she had found an online mentor for Y and had arranged a trial at the end of September 2024. The Council put in place some provision for Y and arranged regular meetings with Mrs X.
45. Mrs X emailed the Council in late September 2024 and said she needed a personal budget in place as she could not pay for Y’s provision. Mrs X chased a response to this from the Council several times in October 2024.
46. The Council sourced another tutor in early October 2024 but again Mrs X said this was not suitable due to availability and Mrs X said she had cancelled the trial she had arranged.
47. Mrs X told the Council in early October 2024 that the social group provision which had been provided was no longer suitable for Y so he would not be attending.
48. The Council received an offer in relation to Occupational Therapy (OT) for Y in mid-October 2024 but then could not continue due to Y’s availability. The tutoring provision in place also reduced the hours it was providing as it was not meeting Y’s needs.
49. The Council responded to Mrs X’s email in mid-October 2024 and provided an update on its search for suitable provision for Y and also sent details of its proposed payments to Mrs X as part of the personal budget.
50. The Council confirmed clinical psychologist provision was in place in mid-October and would run weekly.
51. Mrs X emailed the Council and said she was unsure about the figures in the proposed personal budget in mid-October 2024. She then chased the Council at the end of October to say she had received no update. The Council responded to say it will keep trying to resolve the issue.
52. The Council sourced a Learning Support Assistant (LSA) in early November 2024 in accordance with the EHC Plan, but Mrs X said she had concerns about only having one assistant.
53. Mrs X emailed the Council in early November 2024 to raise a concern and say she had not received an update on Y’s personal budget, transport budget, annual review meeting and plans for provision.
54. The Council responded with details of what progress had been made and requested a meeting regarding the personal budget. The Council emailed Mrs X with a further proposed personal budget in mid-December 2024. Mrs X responded to say multiple issues had not been addressed.
55. Mrs X raised concerns with the Council about the LSA it had sourced due to not knowing what qualifications they had.
56. The Council continued to search for provision for Y in November 2024. However, various settings declined.
57. Mrs X complained to the Council in early December 2024 about its failure to put provision in place for Y.
58. The Council confirmed with an OT provider to arrange a suitable time to provide Y with services in mid-December 2024 and also confirmed an LSA was available.
59. Mrs X said the LSA could not start as there was a lack of oversight for Y’s whole package.
60. The Council issued a response to Mrs X’s complaint in mid-January 2025 to say it upheld her complaint about the delay in putting in place a personal budget. The Council also upheld Mrs X’s complaints about its failure to put provision in place for Y. The Council offered £2250 (£1500 per term) for one and half terms of incomplete provision, £200 to recognise the distress and anxiety caused to Mrs X and £300 to recognise the distress caused to Y.
61. The Council instructed the tutor and LSA sourced in late 2024 in mid-January 2025 to avoid losing their availability.
62. The Council emailed Mrs X with a copy of a direct payment agreement in late January 2025. Mrs X responded the following day to say she required this to be amended. Mrs X then sent a further email to say she needed to make further amendments to those previously sent.
63. The Council made changes to the personal budget and sent a copy to Mrs X for her approval. Mrs X said she could not accept this.
64. Mrs X then sent a further email saying she was still unhappy with the personal budget and said the SEND team needed to manage the budget in early February 2025.
65. The Council withdrew its offer of a direct payment in early February 2025 following Mrs X saying it should manage the budget. Mrs X responded to say she had now signed the agreement the same day. However, the Council said it had withdrawn its offer.
66. Mrs X told the Council she was unhappy with the LSA which had recently been put in place in February 2025 and confirmed a multi-disciplinary team meeting could not go ahead without her, but she did not have availability to attend.
67. The meeting was held in mid-February and heard that Speech and Language Therapy (SaLT) was not being provided as it was not a priority at that time following a discussion between the provider and Mrs X. The meeting also noted that the Specific Learning Difficulty provision had also ended following the tutor withdrawing their services. The meeting concluded tuition needed to be put in place and an LSA needed to be sought.
68. The Council commissioned a tutor for the outstanding hours for Y in late February 2025, but Mrs X said this could not go ahead until a meeting had been held to discuss timetables.
69. The Council confirmed in early March 2025 that Y could have two hours of coding/game design rather than the one hour he had been receiving.
70. The Council put the additional hours in place with a tutor in mid-March 2025.

Analysis

Annual review

71. The Council has acknowledged that after it completed Y’s annual review in April 2024 it did not issue a letter confirming that no changes would be made to his EHC Plan. This is fault. However, as there was an ongoing Tribunal case this mitigated the impact.

Provision

72. The Council has provided details of what provision Y received over the Autumn term of 2024 and Spring term of 2025.
73. There is a significant amount of provision which was not in place for Y across the two terms. This is fault.
74. However, I do have to consider the Council sought various providers such as tutors and an LSA which Mrs X was unhappy with. This contributed to the provision which Y missed out on. Mrs X also stopped some provision such as the social group due to it being unsuitable and SaLT therapy as it was not a priority at that time.
75. Our guidance on remedies refers to a range of sums which can be recommended for lost provision from £900 to £2,400 per term. Y has missed out on a significant amount of provision and as such would fall at the higher end of the range. However, the Council has taken action to try to secure provision for Y but was not able to put this in place after consulting Mrs X. This has therefore been reflected in the figure I have recommended.

Personal budget

76. There have been significant communications between Mrs X and the Council about a personal budget and direct payments for Y’s education, but I have not been able to see this was agreed in the timeframe I have investigated. I understand the Council has now agreed a personal budget with Mrs X.
77. The Council in its complaint response accepted there had been a delay in putting in place a personal budget and direct payment for Y.
78. I can see the Council has tried to progress this issue and Mrs X has raised concerns about the figures provided by the Council which has delayed matters.
79. I can also see there have been significant gaps where the Council has not taken any action to progress the matter or responded to correspondence issued by Mrs X. This is fault. Mrs X has been caused frustration and distress at having to chase the Council for a response.

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Action

80. Within one month of a final decision, the Council should:

• Write to Mrs X to apologise for the faults identified. 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 in my findings.
• Pay Mrs X £300 to acknowledge the distress caused in the delay in actioning a direct payment for Y.
• Pay Mrs X £2,500 to reflect the provision Y missed out on. This is calculated at £1,500 for the Autumn term 2024 and £1,000 for the Spring term 2025.

81. The Council should provide us with evidence it has complied with the above actions.

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Decision

82. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman