Summary: Mrs X complained the Council did not issue draft and final Education, Health and Care Plans for her child Y within legal timescales, and withdrew special educational provision from Y. I find the Council at fault for missing the legal timescales and withdrawing educational provision which caused injustice in the form of distress and missed provision. The Council will apologise and make a symbolic payment to remedy the injustice.

The complaint

1. Mrs X complains about the Council’s handling of the review of the Education, Health and Care Plan (EHC) Plan for her child Y. She complains the Council:

• Did not issue the draft and final EHC Plans within the legal timescales.
• Withdrew educational provision detailed in Y’s EHC Plan whilst conducting the review.

2. Mrs X complained the Council’s actions caused distress, uncertainty and missed educational provision at a key phase in Y’s education.

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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 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.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. 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

9. I have investigated the parts of Mrs X’s complaint that the Council did not secure special educational provision in an EHC Plan dated 22 March 2024, and failed to meet the timescales for providing draft and final EHC Plans when it reviewed that plan. This is because Mrs X could not have referred those matters to the Tribunal.
10. I have not investigated the parts of Mrs X’s complaint regarding the contents of Section F of the amended final EHC Plan dated 18 October 2024. This is because Mrs X appealed to the Tribunal about that part of her complaint. I therefore cannot investigate for the reasons in paragraph 5.

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How I considered this complaint

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

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What I found

Relevant law and guidance

EHC Plans

13. 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. 
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 J: Details of any personal budget required to fund the provision in the EHC Plan.

Councils’ duties to secure special educational provision set out in section F

15. 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)  
16. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Personal budgets

17. 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.
18. 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.
19. The council’s (and health commissioning body’s where relevant) duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.

Reviewing EHC Plans

20. 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 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) 
21. 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.
22. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer. Very often this process is called a “phase transfer”.

What happened

23. Y has had an EHC Plan for several years. The Council had previously agreed it would be inappropriate for Y to attend school and made relevant special educational provision at home and visiting other places. Y was due to move into post-16 education in September 2024.
24. The Council issued an amended EHC Plan in March 2024. This was the “phase transfer” EHC Plan. This said Y would continue to receive education at home and set out the details of the personal budget for the academic year 2023-24. The plan said the personal budget would be reviewed at the next review.
25. On 22 July 2024 the Council held a review meeting for Y’s EHC Plan. It decided to amend it.
26. The Council should have issued the draft EHC Plan to notify Mrs X of the proposed changes four weeks later, on 19 August. It missed the deadline.
27. Mrs X complained to the Council on 22 August because it missed the deadline. She told the Council it happened every year and caused immense stress, time, trouble and inconvenience.
28. The new school term started on 11 September. Mrs X said she tried to obtain educational provision in Y’s current EHC Plan but the Council did not allow her to because the personal budget was under review.
29. The Council responded to Mrs X’s complaint on 19 September. It upheld Mrs X’s complaint the draft Plan was late, apologised, and said it would be issued no later than 25 September.
30. Mrs X was not happy with the Council’s response. She promptly escalated the complaint. She told the Council the new academic year had started and she, Y, and Y’s teachers did not know what educational provision the Council would provide. She said Y wanted to study GCSEs and other exams during the new academic year. She said the Council’s failure was having a significant negative impact on Y’s education.
31. The Council replied to Mrs X that it had already responded to her concerns. It said it had provided an appropriate remedy by saying it would issue Y’s draft EHC Plan by 25 September.
32. On 24 September the Council issued Y’s draft EHC Plan.
33. The Council responded to Mrs X’s escalated complaint the following day. It continued to uphold her complaint the draft EHC Plan was late and apologised again. It said the personal budget was being reviewed. It said it would issue the amended final EHC Plan within 12 weeks of the review meeting as required. The 12 week deadline was 14 October.
34. The Council emailed Mrs X on 4 October and confirmed it would not complete reimbursements or payments for items outlined in Section F until the new EHC Plan was finalised.
35. On 18 October 2024 the Council issued the amended final EHC Plan. This was four days later than the statutory deadline. It had removed some of the educational provision in Section F and changed the personal budget in Section J.
36. In December Mrs X appealed to the Tribunal because she was unhappy with the changes to Y’s EHC Plan.

Analysis

Complaints of delays

37. The Council issued Y’s EHC Plan on 22 March because Y was in the phase transfer between year 11 and post-16. I have referred to this process in paragraph 22 above. It issued the Plan within the legal timescales. Mrs X did not complain about this step and I do not find the Council at fault.
38. The Council decided to review Y’s EHCP Plan in July 2024 to review the personal budget. I understand this decision caused uncertainty for Mrs X and Y because the review process coincided with the summer holiday of a phase transfer year. However, councils may review EHC plans to make sure they are up to date. I do not find the Council at fault for its decision to review Y’s EHC Plan.
39. The Council held the review meeting on 22 July. The law says it should have issued the draft EHC Plan within four weeks and the amended final EHC Plan within 12 weeks. It issued the draft EHC Plan 36 days after the deadline. It issued the amended final EHC Plan four days after the deadline. This was fault which caused Mrs X and Y injustice in the form of distress and uncertainty at an important stage of Y’s education.
40. I have referred to our Guidance on Remedies to consider remedies for the injustice caused. I note the Council accepted fault and apologised for the delay in issuing the draft EHC Plan. Following this, its delay in issuing the final amended EHC Plan was four days which I do not consider caused significant injustice. I do not recommend further personal remedies for this part of Mrs X’s complaint.

Complaint it withdrew educational provision

41. Mrs X said the Council withdrew some of the provision in Y’s EHC Plan when she started school in September. She said the Council continued paying for Y’s teachers, but stopped paying for things it had agreed to pay for before the review, including:

• A personal assistant that helped with physical activities.
• Sensory therapy.
• Museum visits.
• Therapeutic art classes.
• Horse riding.

42. Y’s EHC Plan dated 22 March 2024 was the current plan during September and the beginning of October. Section F of Y’s plan includes provision very similar to the things Mrs X complained the Council withdrew, apart from a personal assistant and horse riding which are not specifically listed.
43. The Council told me that because Mrs X had a personal budget including direct payments, it was her responsibility to secure the provision listed in Section F of the EHC Plan. However, I have considered this against the Council’s email to Mrs X on 4 October 2024. It told her it would not complete reimbursements or payments for items outlined in Section F until the new EHC Plan was finalised.
44. I find this email is evidence, on the balance of probabilities, the Council withdrew educational provision. In essence it selectively told Mrs X she could not commission elements that it knew it was planning to remove from the next EHC Plan. In doing so it failed to act on concerns raised that provision was not in place, and to fulfil its duty to make sure Y received the special educational provision set out in section F of an EHC Plan. The missed special educational provision was the points listed in paragraph 41, apart from a personal assistant or horse riding which were not specifically listed in Section F.
45. I note Section J of the EHC Plan says the personal budget was only applicable to the 2023 to 2024 academic year. However, this does not remove my finding the Council should have secured the provision detailed in Section F until the EHC Plan was updated or ceased.
46. The fault continued from the beginning of Y’s new academic year on 11 September until the Council issued the amended final EHC Plan on 18 October when it changed the provision in Section F. This was approximately half a school term. It caused injustice to Y in the form of missed educational provision
47. I have referred to our Guidance on Remedies. It states where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. I note the Council maintained Y’s teachers throughout the period. I therefore consider the injustice falls at the lower end of the scale. I recommend a remedy payment of £500 for the half term of missed provision. I also recommend the Council apologise for the injustice caused.
48. I do not make any service improvement recommendations in this case. This is because we have recently made recommendations regarding the Council’s SEND service.

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Action

49. Within four weeks of the date of this final decision the Council will:

• Apologise to Mrs X and Y for the injustice caused by withdrawing elements of the special educational provision listed in Section F of Y’s EHC Plan. 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 remedy payment of £500 to Mrs X to acknowledge the impact of the loss of the special education provision. We recommend Mrs X uses the payment for Y’s educational benefit.

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

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Decision

51. I uphold Mrs X’s complaint and find fault causing injustice. The Council has agreed actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman