Summary: Mx G complained the Council failed to issue an education, health and care (EHC) plan after a review, delayed completing a reassessment of her needs, did not secure educational provision in accordance with her existing EHC plan, and failed to honour an agreement to provide a personal budget to fund her provision, meaning her mother, Mrs P, had to do this instead. We consider the Council was at fault on all points of complaint. This caused uncertainty and distress to Mx G and Mrs P, for which the Council has agreed to apologise and offer a financial remedy.

The complaint

1. I will refer to the complainant as Mx G. Mx G is represented in her complaint by her mother, to whom I will refer as Mrs P.
2. Mx G complains the Council:

• did not issue a final amended education, health and care (EHC) plan after an annual review in August 2023;
• delayed completing a reassessment of her needs, which it started in April 2024;
• did not secure educational provision in accordance with her existing EHC plan; and
• offered to fund alternative provision during the reassessment process via a personal budget, but has failed to do so, meaning Mrs P has had to fund this herself.

3. Mrs P says Mx G’s mental health has suffered because of her lack of a proper educational placement, which in turn meant she was unable to sit her GSCE exams in summer 2024. Mrs P also says she has been financially affected by the Council’s failure to fund Mx G’s alternative provision.

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The Ombudsman’s role and powers

4. 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)

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How I considered this complaint

5. I considered evidence provided by Mrs P and the Council as well as relevant law, policy and guidance.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

Legal background

EHC plans

7. 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.
8. 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)  
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.

Reassessment

11. The council must decide whether to conduct a reassessment of a child or young person’s EHC plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
12. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC plan from the date it agreed to reassess to the date it issues the final amended EHC plan.

Alternative provision

13. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
14. This applies to all children of compulsory school age living in the local council area, including those who are not on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

Personal budgets

15. 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.
16. 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.

Mx G’s complaint

17. Mx G has a range of learning difficulties and is subject to an EHC plan. She is in post-16 education, and until July 2023 was attending alternative provision. She also receives tutoring each week.
18. On 8 April 2024, Mrs P made a formal stage 1 complaint to the Council on Mx G’s behalf. She said the Council had failed to secure the provision set out in Mx G’s EHC plan, which said she should receive 15 hours per week of educational provision with a broad curriculum; with Mx G, at that point, receiving only two hours per week. Mrs P also noted Mx G’s EHC plan had not been updated since August 2021.
19. Mrs P said she had found a new alternative provision for Mx G and she was soon to take up a place there. However, she complained the Council had refused to fund this placement, because it had decided it was necessary to carry out a full reassessment of her needs.
20. The Council responded on 9 May. It noted it had previously agreed an ‘education other than at school’ (EOTAS) package for Mx G, consisting of 15 hours per week of alternative provision and tuition. After Mx G had stopped attending the alternative provision, the Council had consulted with her preferred college, but it had declined to offer her a place because it felt it could not meet her needs.
21. The Council said there had been an annual review of Mx G’s EHC plan on 13 March. It confirmed it had considered Mrs P’s request to fund the new alternative provision, but that it believed Mx G would benefit from a reassessment. The Council also noted Mx G was still receiving tuition, but that her engagement with the tutor was sporadic. The Council said it could increase the tuition hours if Mx G were able to engage with it.
22. The Council also explained it was waiting for expert advice as part of the reassessment.
23. Mrs P made a stage 2 complaint on 14 May. She explained Mx G’s mental health had deteriorated after the college declined to offer her a place, and this was why she was finding it hard to engage with her tutor. Mrs P said the tutor was not capable of meeting Mx G’s health needs.
24. Mrs P said Mx G’s case officer had left the Council in December 2023 and had not been replaced. She complained the Council had failed to issue an amended EHC plan after an annual review in June 2022, despite agreeing to make amendments; and that, although the Council had issued a draft amended plan after the next review in August 2023, it had never finalised it.
25. Mrs P also complained the Council had made no further attempt to find a suitable placement for Mx G, after the college’s refusal, and for this reason she was not receiving the provision set out in her EHC plan. Mrs P said she did not accept the pending reassessment was a reason for the Council not to fund Mx G’s new alternative provision, which she said was meeting her needs. And she complained she had heard nothing in response to a request she had made for a personal budget for Mx G.
26. The Council responded on 30 May. It apologised for the difficulty Mrs P had experienced contacting its SEN team, and for its failure to issue a final amended EHC plan since 2021. The Council noted the NHS had recommended Mx G undergo particular types of therapy, and said it would consider this as part of the reassessment of her needs.
27. The Council also apologised for failing to respond to Mrs P’s request for a personal budget. It said it had now considered her request, and had agreed to provide a personal budget to cover 10 hours per week of provision while the reassessment was pending, and until the end of the summer term. The Council also said it would continue to commission Mx G’s tuition during the same period.
28. Mrs P made a further complaint to the Council on 23 August. She said:

• the Council’s online hub showed it had made the decision to reassess Mx G on 30 April, when it should be 26 March; and that, either way, the Council had missed the statutory deadline to issue Mx G’s new EHC plan;
• the Council was due to receive educational psychologist advice by 11 June, but was still waiting for one to be allocated to Mx G’s case;
• a referral to occupational therapy had been rejected because of a lack of information about Mx G’s needs. Mrs P gave more information and asked the Council to pass it to the occupational therapy service;
• while the Council had said Mx G’s last finalised EHC plan was from 2021, Mrs P had only ever received a draft copy of this. She asked the Council to provide a copy of the final plan;
• the Council had not set up the personal budget it had agreed, and she had continued to pay the fees for Mx G’s alternative provision. Mrs P pointed out the new academic year was about to start, and said the Council must either set up the personal budget, or pay the fees direct; and
• the Council had not reimbursed Mrs P for the fees she had already paid for the alternative provision.

29. The Council responded on 27 September. It said:

• it had set the reassessment up on the hub on 30 April, following its decision to do so on 26 April. It apologised for the delay in completing the reassessment, which it explained was due to a delay in receiving advice;
• the educational psychology service had now allocated a psychologist to Mx G’s case. It apologised again for the delay this had caused;
• it needed more detail about Mx G’s needs to commission the occupational therapist assessment;
• Mrs P and Mx G should provide their comments on the draft EHC plan issued in July 2023. It would then finalise the plan, and arrange a new annual review to discuss Mx G’s preparation for adulthood;
• Mrs P had not returned a completed personal budget form, which she should do now; and
• it could not find any agreement it had made to fund the alternative provision or reimburse Mrs P for her costs. The Council asked Mrs P to confirm whether Mx G had taken any exams, and said it would continue to provide an EOTAS package, pending her reassessment.

30. Mrs P referred her complaint to the Ombudsman on 1 October.
31. The Council issued a reassessed EHC plan for Mx G on 17 January 2025. However, it quickly withdrew this, before issuing a new final plan on 18 March.

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Analysis

32. Mx G’s complaint covers four distinct points, and I will address each point separately, to determine whether the Council was at fault. However, as any injustice arising from the potential fault(s) is not easily separable, I will consider these elements together at the end of my decision statement.

The Council did not issue a final amended EHC plan after an annual review in August 2023

33. I will first explain that the law says a person should approach us within 12 months of becoming aware of an issue they wish to complain about. This is called the ‘permitted period’. Mrs P approached us in October 2024, which, by this rule, means anything which happened earlier than October 2023 is late.
34. However, after an annual review, a council has four weeks to decide whether to issue an amended EHC plan, and then a further eight weeks to actually issue the plan. The Council issued its decision to amend on 8 September, meaning it then had until 3 November to finalise the amended plan.
35. Therefore, while the annual review of August 2023 itself falls outside the permitted period for investigation, the Council’s deadline for issuing Mx G’s amended plan does not. I am therefore satisfied the time restriction on our jurisdiction is not relevant to this element of the complaint.
36. The Council says, on 9 October 2023, it sent a second consultation to the college which had already declined a place to Mx G. From the information I have, I cannot see clearly when or how the college responded, but I infer the college again declined to offer Mx G a place.
37. It does not appear the Council then made any more substantive progress on Mx G’s case until March, when a new review was held, and the Council decided it should undertake a reassessment of her needs.
38. The Council was entitled to decide to undertake a reassessment, and I will explore this more in the next section. Either way, and especially once it became clear the college was not going to offer Mx G a place, the Council should have proceeded to issue an amended EHC plan by the 3 November deadline. That it did not is fault.

The Council delayed completing a reassessment of Mx G’s needs, which it started in April 2024

39. As part of Mx G’s new annual review on 13 March, Mrs P asked the Council to fund the new alternative provision she had identified for Mx G. The Council decided instead it should carry out a wholesale reassessment of Mx G’s needs. This meant it then had 14 weeks to complete the reassessment process and issue a new EHC plan for Mx G.
40. The Council has said the relevant starting date for the reassessment was 30 April, as this was when it opened the case on its system. However, Mrs P considers the starting date should have been when the Council actually made the decision to carry out the reassessment, which was 21 March according to its records.
41. I share Mrs P’s view here. The SEN Code says the 14-week deadline to reassess and issue a new EHC plan runs from the date the decision to reassess is made. The fact the Council did not administratively open the reassessment for a further six weeks did not entitle it to delay the statutory deadline for completion.
42. The Council should therefore have issued the new EHC plan by 27 June. It did not do so, however, until 17 January, some 29 weeks late; and even then, the Council quickly withdrew the plan, before issuing it again with further amendments on 18 March, another eight weeks later.
43. This is also fault.

The Council did not secure educational provision in accordance with Mx G’s existing EHC plan

44. At the time Mrs P approached us, Mx G’s latest EHC plan was dated August 2021. Although long overdue for review, it remained in force until finally superseded by the new, reassessed plan in January 2025.
45. In section I of the 2021 plan, it named ‘education other than at school’ as Mx G’s placement. To fulfil this, the Council had been funding a mixed package of tuition and attendance at an alternative education centre, amounting to 15 hours per week of provision. However, Mx G stopped attending the centre at the end of the 2022/23 academic year, and when the college declined to offer her a placement, she was left with just her tuition. Mrs P says this only amounted to two hours per week.
46. At the annual review in March, Mrs P said she had identified a new alternative education provider, and Mx G was due to take up a placement there in April.
47. I am conscious this then led to the dispute about funding and the personal budget, but I will consider this as part of the next section. Looking at this element of the complaint in isolation, therefore, the problem is that Mx G went without a significant element of the provision set out in her EHC plan, for the period September 2023 to April 2024.
48. I do note, in response to Mrs P’s stage 1 complaint, the Council said it would increase Mx G’s tuition hours, if Mrs P felt she would be able to cope with this. This appears an appropriate suggestion to make, notwithstanding the fact Mx G was struggling to engage with her tutor; but I am concerned it took until May for the Council to make this offer, despite being aware Mx G was not receiving her full provision.
49. I should highlight, at this point, that the Council’s general duty to arrange alternative provision, under section 19, only applies to a child of compulsory school age. Mx G had not been since of compulsory school age since the end of the 2020/21 academic year, and so this duty did not apply. But the 15 hours of education had been set out as a specific part of her EHC plan, and so, despite the fact the Council did not owe Mx G a section 19 duty, it still had to ensure she was receiving this.
50. Again, therefore, I find the Council at fault here. I appreciate the obstacles the Council faced, with the college having rejected its consultation, and with Mx G struggling to cope with tuition; and I recognise this may have made it difficult to find replacement provision for her. But my concern here is that the Council appears to have done nothing at all to secure Mx G’s provision after the second consultation, until offering to increase her hours.

The Council offered to fund alternative provision during the reassessment process via a personal budget, but has failed to do so, meaning Mrs P has had to fund this herself

51. As noted in the previous section, the Council originally declined to fund the alternative provision Mrs P had secured for Mx G, due to the pending the reassessment. But in response to the stage 2 complaint, the Council agreed to provide 10 hours per week of funding, via a personal budget, to the end of the academic year.
52. However, Mrs P complains the Council did not actually set up the budget or make any payments to her, meaning she has covered the entire cost of the alternative provision herself.
53. In response to Mrs P’s follow up complaint, the Council said it had sent Mrs P a personal budget form to complete and return, but that she had not done so. I do not have any further information about this and so I cannot make a judgement on it.
54. Either way, in response to my enquiries, the Council acknowledge it had failed to honour its agreement, which it said was due to administrative errors. It said it would now ensure Mrs P received the payment she was due, and also offered her £250 to recognise its delay in making the arrangements.
55. Separately, I also asked the Council why it had only offered to arrange the personal budget to the end of the academic year. The Council replied:

“The Local Authority agreed this so that the interim arrangements of the personal budget could be reviewed with regards to effectiveness, as well as review [Mx G’s] long-term aspirations and goals.”

56. However, the Council went on to explain it had now agreed to fund Mx G’s placement retrospectively, at a rate of £300 per week, from the point it had originally agreed in May 2024, up to the finalisation of her EHC plan on 18 March. The Council also said it would continue to fund the placement at the same rate going forward.
57. I am satisfied the Council was at fault, because it did not arrange the personal budget for the remainder of the 2023/24 academic year, after saying it would.
58. Conversely, I infer the Council’s reason for restricting its offer of a personal budget to this period was on the basis the reassessment would be completed on time. This was clearly a miscalculation, but with the information that was available to the Council at the time it made the offer, it does not appear unreasonable.
59. In isolation, therefore, I do not consider the Council was at fault for this specific decision. But, now with the benefit of hindsight, I agree it is appropriate for the Council to now reimburse Mrs P for the full period, as it has said it will.

Injustice and remedy

60. I have found the Council at fault because it:

• did not issue an amended EHC plan after the review in August 2023;
• significantly delayed completing the reassessment of Mx G’s needs;
• made no further effort to arrange alternative provision for Mx G after the failed consultation with the college in October, until offering to increase her tuition hours in May; and
• did not arrange the personal budget it had agreed, to cover the end of the 2023/24 academic year.

61. The fault in the personal budget element did not cause an injustice to Mx G, because she was receiving the provision anyway; but it did cause an injustice to Mrs P, because she was forced to continue funding this herself.
62. I am satisfied the Council has offered an appropriate remedy for this element of the complaint, saying it will now reimburse Mrs P for those costs, as well as pay £250 to account for its delay in doing so. I will not add anything further to this, but I will still make my own recommendation to this effect, to formalise what the Council has offered.
63. I also agree it is appropriate for the Council to reimburse Mrs P for her costs up to the point it issued the final EHC plan in March 2025. However, for the reasons I have set out, I do not consider the Council was at fault, at the time, for its decision to restrict the personal budget to the end of the 2023/24 academic year. For this reason I cannot make my own recommendation about this.
64. Turning to the other points of fault, it is more difficult to define precisely what injustice they have caused. This is because there are too many variable factors for me to be able to say, with any confidence, what would have happened differently.
65. For example, given the Council did not actually issue an EHC plan after the August 2023 review, it is not possible to say whether Mx G would have been satisfied with the contents, or sought to appeal against it. And so I cannot say she suffered the injustice of a delay in implementing any newly set-out provision, or in her right to appeal against the plan.
66. Similarly, Mrs P’s complaint about the delayed reassessment seems principally focused on the Council’s initial refusal to fund the new alternative provision, while the reassessment was pending, rather than any particular aspect of the promised new EHC plan.
67. And, while I have criticised the Council for failing to make any further effort to arrange provision for Mx G after the failed consultation, I cannot speculate about what alternatives it may have been able to identify or offer to Mx G, or whether she would have been able to successfully engage with them.
68. Taking everything together, therefore, I consider the injustice here is essentially one of uncertainty, and the distress and frustration this has caused both Mx G and Mrs P.
69. Our guidance on remedies says:
70. “Our recommendation for a remedy [for distress] needs to reflect all the circumstances including:

• the severity of the distress;
• the length of time involved;
• the number of people affected (for example, members of the complainant’s family as well as the complainant);
• whether the complainant or other persons affected are vulnerable and affected by distress more severely than most people; and
• any relevant professional opinion about the effects on any individual.

“Where we decide it is appropriate, we will normally recommend a remedy payment for distress of up to £500.”

71. Given the number of different points of fault here, the fact it took place over an extended period, affected both Mx G and Mrs P, and Mx G’s vulnerabilities, I consider it appropriate to recommend a remedy of £500 in this case. For the avoidance of doubt, this is separate to the £250 the Council has already offered to pay Mrs P because of the delay in setting up the personal budget.
72. I also consider the Council should write a formal letter of apology to Mx G and to Mrs P, to acknowledge its faults and the injustice they have caused.
73. Separately, I consider the Council should issue guidance to relevant staff, to remind them the SEN Code says (at paragraph 9.192) the 14-week deadline for completing an EHC needs reassessment begins on the date the decision to reassess is made.

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Action

74. Within four weeks of the date of my final decision, the Council should:

• offer pay £500 to Mx G and Mrs P, to reflect their distress caused by the uncertainty arising from its faults in this case;
• write a formal letter of apology to Mx G and Mrs P for the same reason. 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 in my findings;
• reimburse Mrs P for the money she spent funding alternative provision for Mx G for the period from 30 May to the end of the 2023/24 academic year, as well as offering her £250 to reflect its delay in doing so; and
• issue guidance to relevant staff, to remind them the SEN Code says (at paragraph 9.192) the 14-week deadline for completing an EHC needs reassessment begins on the date the decision to reassess is made.

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

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Decision

76. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman