Summary: There was fault by the Council. It took too long to issue a final Education Health and Care Plan to Mr K; did not complete a transport assessment nor offer funding for travel to college in good time; did not always communicate with his mother, Mrs X properly; and did not make a personal budget available to Mr K to pay for the provision set out in his Plan. This caused Mr K and Mrs X distress and uncertainty. It meant that Mr K did not receive all of his provision. The Council should apologise to Mrs X and Mr K. It should make symbolic payments in recognition of the impact on Mrs X and Mr K.

The complaint

1. Mrs X complains about how the Council dealt with her son’s educational needs. In particular, Mrs X says the Council:
• Took too long to issue final Education Heath and Care (EHC) Plan for her son, Mr K, and exceeded the legal time frames;
• Refused to fund his accommodation, or allow him to use a personal transport budget to pay for accommodation so that he could attend college;
• Failed to properly consider Mr K’s needs when it offered to pay the cost of public transport to and from college; and
• Failed to properly consider his request for a personal budget to fund mentoring and work experience as set out in his EHC Plan.
2. Mrs X says that the Council’s shortcomings caused her son, Mr K significant anxiety and distress. It put his college education at risk, and she had to pay for his accommodation so that he could still go to college.

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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)

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How I considered this complaint

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

The law and guidance

EHC Plans and reviews

8. 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. 
9. 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 annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
10. Where the council proposes to amend an EHC Plan, 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.
11. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.
12. For young people moving between post-16 institutions, the review and any amendments to the EHC Plan must be completed by 31 March of the year before the transfer.

Making the provision under an EHC Plan and personal budgets

13. 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)  
14. 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. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
15. 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.
16. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
17. The Council’s personal budget policy says that if a parent or young person disagrees with decisions relating to whether a personal budget is sufficient or includes the EHC Plan provision, they can raise this with the Council. The policy goes on to say that if the Council cannot resolve this, the parent or young person can request independent disagreement resolution or mediation.

EHC Plans and appeal rights

18. There is a right of appeal to the Tribunal against a council’s:
• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue an EHC Plan following an assessment;
• 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;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.
19. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
20. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened.

Transport for adults to college with an EHC Plan

21. Councils must arrange for the transport it considers necessary for an adult with an EHC plan to attend their education or training placement. Councils may also be able to assist with transport under the Care Act 2014 if the young adult has care needs. 
22. The statutory guidance says that a council should consider the transport arrangements when naming a placement in the EHC Plan.
23. The Council’s policy on transport to school says that a young person is eligible for travel assistance if they are unable to use public transport due to the special educational needs and disability, or because they have problems with mobility. They will be entitled to travel assistance appropriate for their needs. If the student has an EHC Plan and is over 19 when they start the course, they are an adult learner and the transport must be funded by the Council.
24. If the student is eligible for transport assistance, they can apply for a personal transport budget which allows the young person to organise their own transport. A personal transport budget is awarded at the Council’s discretion. The policy is clear that a personal transport budget must be used for the student to travel to and from their education.

What happened

The EHC Plan review process and transport issues

25. Mr K was turning 19 years old at the time of the events complained about. He was in his final year of secondary school and seeking a further vocational education course or advanced level apprenticeship in a specialist field of interest to him. Mr K has an EHC Plan. The Plan he had at school was issued on 20 June 2023 following a tribunal hearing.
26. The school held an annual review meeting on 26 January 2024, in Mr K’s final year at school. This means that the Council should have issued its notice to maintain, amend or cease the EHC Plan by 23 February. The Council did not issue the notice to amend until 29 March 2024, and then it did not send details of the proposed amendments.
27. As Mr K was due to leave his current school and potentially transfer to another post-16 institution, the Council should have issued the final EHC Plan by 31 March.
28. The Council did not ask what course Mr K wanted to go on to study until mid-March. Mr K and his family were already applying independently for apprenticeships and colleges.
29. On 29 May 2024, the Council sent the notification that it would amend the EHC Plan. It did not send any details of the proposed amendments. The Council was nearly 14 weeks late with its notification.
30. At the end of June, Mrs X asked to meet with the Council to discuss possible placements. She had found a suitable vocational course for Mr K at a specialist college. The college was not in Mr K’s hometown and would likely mean he would need to stay away from home as the commute would be too long.
31. At the beginning of July, Mrs X sent the Council full details of the college course for submission to the Council’s Placement Panel. She also asked the Council to fund student accommodation for Mr K so he would not need to commute. In mid-July, the Council decided it could not agree to name the course in Mr K’s EHC Plan because it did not have accreditation. The Panel mistakenly thought that Mr K already had A-levels and this would be a step back for him. Mrs X corrected the Council and also pointed out that an EHC Plan does not have to facilitate formal qualifications.
32. Mrs X emailed the Council several times asking it to escalate the issue to its senior staff for a decision. At the end of July, the Council said it must meet with Mrs X to discuss transport arrangements for the new college course, as the Council would not fund accommodation. Mrs X asked again for the Council to consider accommodation so Mr K could go to the college. The Council suggested that Mr K may be able to get accommodation via social care as he has support needs, but that it could not be funded via the Education service. The Council also said it could consider a personal travel budget for Mr K so that he could develop his independent travel skills. It said it would not fund a taxi for Mr K from home to college.
33. The Council issued the final EHC Plan but did not name the college because it did not fall into the normal categories of educational settings. Mrs X asked it to name the college, and the Council reissued the final EHC Plan on 16 August 2024, naming the college.
34. Mrs X says she submitted the Council’s form to ask for a full transport assessment at the end August. She says the Council refused to assess Mr K, and Mrs X resubmitted the form. The Council acknowledged receipt, asked for further evidence (she says it already had this from the EHC Plan review process), and then said again it would not fund accommodation and could consider other transport.
35. Mrs X applied to the Council for a personal travel budget to fund accommodation closer to the college. She set out in detail the reason Mr K would need the accommodation and how it would be cheaper than the Council funding a taxi for him daily. By this time, it was close to Mr K starting the course and Mrs X asked her councillor and local MP for help with moving the request forward urgently. She told the Council that it had more than enough time to plan for Mr K’s placement and it has now risked Mr K not having any employment, education or training. Mrs X pointed out that the accommodation needed to be booked and paid for in time for Mr K to start the college course.
36. In mid-September, the Council contacted the college for the first time to enrol Mr K on the course. It had not consulted the college about how it would make the provision set out in his EHC Plan. Mrs X continued to chase the Council for an urgent decision on Mr K’s transport and accommodation. The Council again said that Mr K could not use the personal transport budget for accommodation, and it would explore the transport options with Mrs X. She asked the Council for a full assessment of how Mr K would use public transport to get to and from the college named in his EHC Plan.
37. Mrs X complained to the Council on 12 September. Earlier (when the EHC Plan was delayed) her solicitor had also written to the Council as part of the protocol she must follow if she wants to start court action for a judicial review of the Council’s decision not to provide accommodation for Mr K to attend the college.
38. The Council told Mrs X that it could not fund the accommodation. It wrote to Mrs X to explain this and offered to discuss transport options with her.
39. Overall, Mrs X and Mr K’s position is:
• The Council took too long to issue the final EHC Plan review. It should have notified Mrs X of its intention to amend the Plan by 23 February 2024 and the final plan by 19 April. In any case, it should have issued the final Plan by the end of March so that it was ready for Mr K’s transfer to college from school.
• The Council did not propose any alternative placement. The delay caused Mr K and Mrs X uncertainty and distress.
• The law says that the Council may secure accommodation to allow a person with an EHC Plan to attend their education, but it has not considered this. Mr K’s EHC Plan states he has difficulties with transport and the journey is too long to do daily. The cost of accommodation is less than the cost of daily transport, and as Mr K is now over 18, the Council should not assume he will continue to live with his parents.
• The government guidance on school transport allows for a council to provide alternatives to transport.
• The Council removed parts from the draft EHC Plan regarding Mr K’s difficulty with public transport that had been reported by his school. Mrs X has appealed to the tribunal regarding how the Plan describes Mr K's needs and the educational provision, but the Tribunal will not deal with the transport and accommodation issues.
• Mrs X had submitted reports from Mr K’s former college, his therapists and a clinical psychologist that said he could not manage public transport independently.
• The Council’s delay and refusal to fund the accommodation, has impacted significantly on Mr K's mental health, causing him uncertainty and distress.
40. Towards the end of September, Mrs X paid for Mr K’s private student accommodation. She told the Council she had done this and continued to ask the Council to support K with this. The Council consulted the DfE and told Mrs X that it had confirmed that under the Council’s policy, she could not use the personal transport budget to pay for accommodation. The Council told Mrs X that a budget might be for mileage to the train station, rail tickets and travel cards. Mrs X said this would not work because Mr K could not travel independently on public transport, particularly as his commute would involve a two-hour trip each way by car, train, and London transport.
41. The Council responded to Mrs X’s complaint on 1 November. It apologised that it did not respond within 20 working days as set out in its complaints policy. The Council’s position was set out in its complaint response and the response to Mrs X’s pre-court action letter. Overall, its position was that:
• It took longer than expected to issue the final EHC Plan because it was discussing the best placement with Mrs X. Her initial preference was for a higher education place which would mean the EHC Plan would cease. The Council delayed issuing the final Plan to allow Mrs X to find a suitable alternative.
• At the review, Mr K’s school confirmed that he could use public transport despite difficulties with timekeeping and anxieties, and there were no expert statements that said Mr K cannot use public transport. The Council did acknowledge that using public transport impacts on Mr K’s sensory needs and he prefers not to.
• The accommodation is not an educational provision. The Council said the law Mrs X had cited relates to accommodation as part of a boarding or residential school and not the private rental that she said Mr K needed. The Council would consider a future residential placement or housing options if Mr K could no longer live in the family home. It would need to carry out a social care assessment in order to do this as it could not fund a flat for Mr K without knowing he had the support to be able to live independently. The Council said that Mrs X had declined a social care assessment.
• The Council had told Mrs X as part of the pre-court action that it would not fund the accommodation, but she had not raised this again until after the Council had issued the final Plan. Had it known that Mr K could not get to college by public transport, it would have considered more local options.
• Mrs X cannot use a personal transport budget to pay for accommodation for Mr K.
• The Council in one response said it had carried out a transport assessment at the beginning of September. On the basis of this, the Council offered to fund a mileage allowance from Mrs X’s home to the train station, and then train tickets and a travelcard for Mr K to travel on to the college. In a later response, the Council said it had not carried out a transport assessment but it could do so if needed.
• The Council also offered to fund a taxi from Mr K’s home to the college, and to fund mileage for Mr K to drive to and from college.
• It has taken into account Mrs X’s concerns that Mr K cannot use public transport but notes that in his EHC Plan, it says that he can use public transport with the required planning, and he can also drive if he has access to a car.
• It has sought guidance from the Department for Education to make sure that it is within its statutory duty to decide that Mrs X cannot use a personal travel budget for accommodation.
• It was happy to discuss the travel options further with Mrs X but if she felt that Mr K could not access his college course, then it would seek an emergency review of his EHC Plan.
• Mrs X had declined an adult social care assessment.
42. In February 2025, the Council offered Mrs X £10,602 per annum as a personal transport budget based on Mr K’s journey to college of 31 miles each way. This was based on Mr K’s home address and so the offer would not apply to travel from Mr K’s student accommodation.

Problems with provision under the EHC Plan

43. Mr K’s EHC Plan said he would get 1:1 mentoring with a coach trained to work with autistic people. Mrs X wrote to the Council because the Council had not provided the personal budget to fund this provision. The Council said that it would agree a personal budget to fund a mentor for a limited time to allow Mr K to transition to college, and it would review this in December. Following this it expected the college to provide mentoring. Mrs X said the college could not provide this type of specialist mentoring and the EHC Plan did not limit this to transition to the college.
44. In December, the Council agreed to fund eight sessions. Mrs X’s solicitor sent a second pre court action letter to the Council regarding lack of provision as set out in the EHC Plan.
45. Mrs X asked the Council to consider her complaint at stage two of its complaints process. This included that the Council had not provided any funding for mentoring in term one. The Council told Mrs X that it would not respond to her complaint because she had appealed to the tribunal about the matters she had complained about. However, the Tribunal has confirmed that it would not consider the issue of delay in issuing the final EHC Plan, and the decisions around transport and accommodation. It also would not deal with a failure to make the provision set out in the EHC Plan.

Was there fault by the Council causing injustice to Mrs X and Mr K?

EHC Plan review process

46. The Council took too long to issue the amended final EHC Plan. The Council should have issued the final Plan by 31 March at the latest. However, it did not do so until 13 August. This was almost 20 weeks late.
47. I appreciate that there had to be a discussion about Mr K’s next course and where he would be study and that he and Mrs X were considering the options. I also note that the school held the review meeting in good time. However, the Council did not move quickly enough to issue the notice to amend, nor to establishing what options Mr K might want to pursue, especially as it knew it would be a new college and would most likely need to be considered by its placement panel.
48. The Council’s delays caused Mrs X and Mr K distress, uncertainty, and frustration. It also delayed Mrs X’s right to appeal the contents of the Plan (which she subsequently used).
49. Mrs X has said that the Council wrongly changed the EHC Plan between the draft and final stages to remove important information about how Mr K can use public transport. Mrs X has used her right to appeal the contents of the Plan. I appreciate that the tribunal will not deal with transport or accommodation issues as these are not part of the Plan, but it can deal with the new wording contained in the Plan. This means that we cannot investigate whether the Council was wrong to change the wording.

Transport and accommodation funding

50. There is no duty for the Council to fund the accommodation. It is for the Council to consider Mrs X’s request for this, in line with its policy and having taken into account all the relevant factors of Mr K’s individual circumstances.
51. Mrs X said that the law allows the Council to secure accommodation to allow a person with an EHC Plan to go to school or college. However, the Council says this provision relates to residential schools and colleges. I have checked the law and the Council’s interpretation is a reasonable one.
52. The Council’s school transport policy says that if Mr K is unable to use public transport, he will be entitled to travel assistance appropriate for his needs, and funded by the Council.
53. The Council told Mrs X that the Department for Education (DfE) had confirmed she cannot use a personal travel budget to fund accommodation. I cannot see that the DfE advised this in its correspondence. However, the correspondence refers to a conversation between the DfE and the Council and so the advice may have been given in the conversation.
54. In any case, the Council’s policy is clear that the personal travel budget must be used on transport. For this reason, the Council is not wrong to tell Mrs X that it cannot be used for accommodation.
55. The Council spoke about the possibility of funding a taxi or travel by public transport. However, it did not make a formal offer of this. The Council offered Mrs X a personal travel budget of £10,602 per annum based on the mileage from her home to college. It did not do this until five months after he started the course.
56. In its response to Mrs X’s complaint the Council said that it had completed a transport assessment in September 2024 so that it could understand Mr K’s needs and what kind of travel he could manage. However, the Council has confirmed that it did not complete a transport assessment. For this reason, the Council cannot be sure that its offer of a personal travel budget based on mileage would meet Mr K’s needs. In addition, the offer came very late, five months after Mr K had started his course, by which time Mr K had moved nearer to college and the offer was not valid.
57. The Council’s failure to complete a proper travel assessment, nor make a formal offer in good time, was fault by the Council.
58. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
59. Mrs X was very clear that she wanted the Council to fund Mr K’s accommodation, and it is more likely than not that she would not have accepted travel assistance or a personal travel budget unless it could be spent on accommodation. I am also mindful that Mrs X entered into a contract for Mr K’s accommodation knowing that the Council would not fund this. However, the Council’s mishandling when it processed Mr K’s request for transport funding, caused Mrs X and Mr K distress and uncertainty.

Failed to properly consider his request for a personal budget to fund mentoring and work experience as set out in his EHC Plan.

60. The Council remains responsible for making sure that the provision set out in the EHC Plan is made. The 1:1 mentoring was part of the provision. The Council took too long to agree the personal budget and so Mr K missed out on mentoring to which he was entitled. The Council was also wrong to try to limit the mentoring as this was not set out in the Plan. If it had considered that the mentoring was only needed for Mr K’s transition it should have set this out as the provision in the draft Plan for Mrs X’s comment.
61. The Council’s shortcomings here caused Mr K to miss the provision set out in his plan. It also caused Mrs X distress and frustration that she had to pursue the Council to honour the provision.

Other issues

62. The Council had a significant amount of contact with Mrs X, but it was not always clear. For example, it said that it had completed a transport assessment when it had not. Understandably, Mrs X wanted to see the assessment and this caused her frustration pursuing the issue with the Council. The Council also said that Mrs X had refused an adult social care assessment, but the Council’s case notes do not record this.
63. In addition, the Council did not deal with Mrs X’s complaint to it properly. It did not respond to her first stage complaint within the deadline set out in its policy. It also did not consider her complaints at stage two as she had appealed to the tribunal. However, several of her complaints would not be dealt with by the tribunal, including delays in the EHC Plan process, the Council’s decision on accommodation and transport. The Council should have considered these under its complaints process.
64. Under the Council’s personal budget policy, Mrs X and Mr K had the right to request an independent review of the Council’s decision not to limit its funding for mentoring. However, the Council dealt with this under its complaints policy. This was fault and meant that Mrs X did not have the opportunity of an independent review.

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Action

65. The Council will within one month of this decision:
• Apologise to Mrs X and Mr K for the impact on them of the Council’s shortcomings. 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.
• Make a symbolic payment to Mrs X of £500 in recognition of the uncertainty and distress caused when the EHC Plan was issued late, the Council failed to complete a transport assessment or make an offer of transport assistance in good time, and when its communication was not clear and accurate.
• Make a symbolic payment to Mrs X of £150 in recognition of the time and trouble she was put to when the Council failed to deal with her complaints properly.
• Make a symbolic payment to Mr K of £100 per month for every month (or part thereof) he did not receive the mentoring specified in his EHC Plan.
66. The Council should provide us with evidence it has complied with the above actions.

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Decision

67. I find fault causing injustice. The Council has agreed to take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman