Summary: Mrs B complained the Council delayed completing an annual review and in issuing a final EHC Plan, failed to put in place provision in the EHC Plan, delayed providing her with a personal budget and gave her conflicting information about whether the Council would complete a full reassessment. The Council delayed completing the annual review and in issuing a final EHC Plan, the Council’s decision making and communications about the reassessment were not clear and the Council delayed paying the personal budget and in responding to a complaint. That caused Mrs B significant distress, denied her right of appeal and meant her son missed out on provision. An apology, payment to Mrs B, a training session for officers and review of procedures is satisfactory remedy.

The complaint

1. The complainant, Mrs B, complained the Council:
• delayed completing an annual review in 2023;
• failed to issue a final education, health and care plan (EHC Plan) following the review;
• failed to put in place the occupational therapy (OT) provision in the EHC Plan;
• failed to provide a personal budget for education other than at school, as agreed;
• failed to communicate with her effectively;
• gave her conflicting information about whether the Council would carry out a reassessment and delayed carrying out that reassessment; and
• delayed responding to her complaint.
2. Mrs B says the Council’s actions have had a financial impact on her, have caused her significant distress and her son has missed out on 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 an injustice, 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(i), as amended)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mrs B and the organisation 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

EHC Plans

8. 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 council can do this.
9. Under section 42 of the Children and Families Act 2014 the council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

Special Educational Needs Code of Practice (code of practice)

10. The whole process of EHC needs assessment and EHC Plan development, from the point when an assessment is requested (or a child or young person is brought to the local authority’s attention) until the final EHC Plan is issued, must take no more than 20 weeks (subject to exemptions).
11. Local authorities must give their decision in response to any request for an EHC needs assessment within a maximum of 6 weeks from when the request was received or the point at which a child or young person was brought to the local authority’s attention
12. When an EHC Plan is maintained for a child or young person the local authority must secure the special educational provision specified in the EHC Plan.
13. EHC Plans should be used to actively monitor children and young people’s progress towards their outcomes and longer term aspirations. They must be reviewed by the local authority as a minimum every 12 months.
14. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHC Plan as it is, amend it, or cease to maintain it, and notify the child’s parent or the young person.
15. If the plan needs to be amended, the local authority should start the process of amendment without delay.
16. Local authorities must conduct a re-assessment of a child or young person’s EHC Plan if a request is made by the child’s parent or the young person, or the governing body, proprietor or principal of the educational institution attended by the child or young person, or the CCG (or NHS England where relevant). A local authority may also decide to initiate a re-assessment without a request if it thinks one is necessary.
17. The local authority must notify the child’s parent or the young person of its decision as to whether or not it will undertake a re-assessment within 15 calendar days of receiving the request to re-assess. If the local authority decides not to re-assess, it must notify the child’s parent or the young person of their right to appeal that decision and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal and the availability of information, advice and support and disagreement resolution services.
18. Re-assessments must follow the same process as for the first EHC needs assessment and drawing up of the EHC Plan, with the same timescales and rights of appeal for the child’s parent or the young person.
19. The overall maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC Plan, subject to exemptions. However, the local authority must aim to complete the process as soon as practicable.
20. A personal budget is an amount of money identified by the local authority to deliver provision set out in an EHC Plan where the parent or young person is involved in securing that provision.

What happened

21. Mrs B’s son has special educational needs and has an EHC Plan. He has received an education other than at school (EOTAS) package since March 2021. Mrs B has a personal budget. I have investigated what has happened since August 2023.
22. In August 2023 Mrs B told the Council she believed her son would benefit from a new educational psychology (EP) assessment as so much had changed since his original assessment. The Council said it would consider that at the annual review. That annual review took place on 15 December. The annual review agreed the EHC Plan would continue but needed amendments. The meeting agreed to seek an updated EP assessment.
23. The Council issued a proposed amended EHC Plan on 19 February 2024.
24. The Council’s panel considered Mrs B’s request for funding for a private EP assessment due to the delays identifying a new EP. The panel said it wanted to explore the Council’s capacity to complete the assessment.
25. Mrs B chased the Council on 22 May and put in a complaint on 11 June. The Council acknowledged receipt of the complaint.
26. In July 2024 Mrs B told the Council her son would not return to the alternative provision in September 2024 because his mentor was leaving. Mrs B said she did not believe he would engage with a new person. Mrs B said she did not think her son could attend a new provision at that stage due to his therapy but might be able to do so later in the year.
27. Mrs B chased a response to her complaint on 14 August. The Council responded on 30 August.
28. Mrs B again asked the Council to consider funding a private EP assessment. The Council’s panel considered that on 25 September and refused the request.
29. On 16 October the Council’s panel agreed to continue with EOTAS for the academic year 2024/25.
30. Mrs B arranged for a private EP assessment which took place on 23 October. Mrs B then asked the Council to take her complaint to stage two.
31. On 7 November Mrs B’s new caseworker emailed her to tell her the Council had begun the reassessment on 23 October. The caseworker explained because the Council had agreed to carry out a reassessment it would not hold an annual review in 2024. The Council said because the current OT provider could not offer sensory integration therapy, which was in Mrs B’s son’s EHC Plan, the Council would seek an updated occupational therapy report.
32. The Council formally notified Mrs B of the reassessment on 11 November. The Council asked for updated speech and language therapy and OT reports as part of that reassessment.
33. The Council sent Mrs B the new direct payments agreement for the 2024/25 academic year on 21 November. Mrs B returned signed copies on 1 December.
34. The Council responded to the stage two complaint on 3 December. Following that the Council wrote to Mrs B to confirm it had agreed to carry out a full reassessment. The Council agreed to refund the cost of the private EP report and offered Mrs B £300 as a financial remedy.
35. On 4 January 2025 Mrs B told the Council she had not received any personal budget direct payment for the academic year. The Council paid Mrs B the first two terms on 8 January.
36. On 5 February a Council officer emailed Mrs B to tell her panel had only agreed an EP assessment. The officer said the options were either to return to panel to seek a full reassessment or to hold an annual review to reflect the changes in needs and provision in the EP report and said that could include a new OT assessment.
37. Mrs B raised concerns about that decision given what the Council had told her previously. The Council said it would use the EP report Mrs B had paid for to write the EHC Plan.
38. Mrs B asked the Council to arrange a new OT assessment, as referred to in the EP report. The Council put that request to its panel on 17 March. The panel agreed for a full reassessment to take place.
39. After receiving occupational therapy and speech and language therapy input the Council issued a draft EHC Plan in July 2025. The Council issued a final EHC Plan on 29 August, which was after my draft decision on this complaint.

Analysis

40. Mrs B says the Council delayed completing an annual review in 2023 and in issuing a final EHC Plan following that review. The evidence I have seen satisfies me the Council should have completed the annual review for Mrs B’s son in November 2023. The Council therefore delayed carrying out the review given it did not happen until 15 December 2023. That delay is fault.
41. I am concerned that despite the fact the review decided to maintain the EHC Plan but complete amendments the Council did not issue a final EHC Plan until August 2025 . The Council should have issued an amendment notice by 12 January 2024 and then a final EHC Plan within eight weeks of that date. The Council has not complied with the timescales set out in the code of practice and that is fault.
42. I appreciate there has been a complicating factor in this case because the Council also agreed to seek an updated EP report at the annual review. However, due to the shortage of EPs, the Council could not complete the assessment before Mrs B paid for her own assessment in October 2024.
43. I understand the Council delayed issuing the final EHC Plan because it wanted to wait for the EP report as that would likely affect the provision for Mrs B’s son. However, there is no provision in the code of practice for the Council to put on hold issuing a final EHC Plan following a review to allow for an updated EP assessment.
44. The Council should therefore have issued an amended EHC Plan. The Council could then have held an early annual review once it received the EP report if it believed further revisions to the EHC Plan were necessary. Failure to comply with the timescales set out in the code of practice is fault. I am satisfied that means Mrs B has some uncertainty about whether her son has missed out on provision and it has delayed her right of appeal. I recommended the Council apologise to Mrs B and pay her £300 to reflect that uncertainty and delayed appeal right. The Council has agreed to my recommendations.
45. I welcome the Council’s decision to refund the amount Mrs B paid for the EP assessment. However, I am concerned about how the Council recorded its decisions around that assessment. It is clear Mrs B believed the Council had agreed to carry out a full reassessment rather than just asking for an updated EP report. The notes from the review in December 2023 do not support that. That document clearly said a full reassessment was not necessary.
46. However, it is also not clear from the documentary evidence when the Council agreed to carry out a full reassessment. It appeared the Council had agreed to carry out the full reassessment at least by November 2024 as that is when it asked for updated OT and speech and language therapy assessments. However, although there is reference in the documentary evidence to the full reassessment being agreed on 23 October I have no documentation to show who made the decision and when.
47. It appears the officer that referred to 23 October took it as the date on which the decision from the Council’s panel on 25 September 2024 was formalised. However, the notes from the panel on 25 September 2024 do not show the panel agreed to a full reassessment. Instead, the notes from that decision state only that an EP reassessment would take place. Failure to keep clear records of decisions and failure to communicate those decisions properly to Mrs B is fault. It is clear that has led to uncertainty both for Mrs B and Council officers about what had been agreed.
48. I have seen no evidence the Council’s panel agreed to a full assessment until March 2025. For that reason I cannot say the Council delayed seeking the OT and speech and language therapy reports. However, I am satisfied the earlier communications from the Council misled Mrs B about what the Council had agreed to do. The Council also declined to carry out a review when it was due in December 2024 on the basis a full reassessment was underway when that was not the case. As the Council did not issue a final EHC Plan until August 2025 it has also failed to meet the timescales set out in the code of practice as it had 16 weeks to issue the final EHC Plan from the date of the decision to complete a full reassessment (March 2025). That is also fault.
49. I recommended the Council apologise to Mrs B for the misleading communications. I outline at the end of this statement the financial remedy I consider appropriate to reflect Mrs B’s distress. I also recommended the Council hold a refresher training session for officers dealing with children with EHC Plans and EHC needs assessments. That training should cover the timescales the Council needs to adhere to, the recording of decisions and how decisions will be communicated to parents/carers.
50. It is also clear Mrs B has had several different case officers since December 2023 and that has added to the confusion around the type of assessment the Council agreed to. I therefore recommended the Council ensures it has proper handover processes in place when new case officers are allocated.
51. I had recommended the Council issue a final EHC Plan within one month of my final decision as part of my draft decision. I no longer need to make that recommendation as Mrs B has confirmed the Council has issued a final EHC Plan.
52. Mrs B says the Council failed to put in place the OT provision in her son’s EHC Plan. The Council agrees the provision in the 2022 EHC Plan, which is the latest final EHC Plan, has not been in place since August 2023, which is when my investigation begins. The Council says though the OT provider said in August 2023 Mrs B’s son did not need OT input.
53. Irrespective of the information the OT provider gave the Council, the Council has a responsibility to ensure the provision in an EHC Plan is in place. Only if the Council had issued a revised EHC Plan removing the OT provision would it not have had to put it in place. I also note the latest OT assessment from 2024 shows Mrs B’s son still needs OT input. I therefore consider the Council at fault for failing to ensure the OT provision in Mrs B’s son’s EHC Plan was in place from August 2023. That means Mrs B’s son missed out on OT provision for six terms between September 2023 and July 2024.
54. I consider a suitable remedy for the missing OT provision would be for the Council to pay Mrs B £200 per term. That makes a total financial remedy of £1,200. In a previous case earlier this year we also recommended the Council review how it ensures the provision in an EHC Plan is being provided and make changes if needed. I therefore make no further recommendation for any procedural remedy in this case. That is because the Council will need to provide evidence of its compliance with the remedy for the previous case.
55. Mrs B says the Council delayed paying her direct payment. Mrs B says the Council only agreed the personal budget for the academic year 2024/25 in December 2024. Mrs B says although she received a payment in January 2025 that was only for the first two terms.
56. I am concerned about the delays in this case. The Council has confirmed it did not agree the EOTAS package for Mrs B’s son until October 2024 and then did not make payments until January 2025. I am concerned about the Council’s approach here. Mrs B had contacted the Council about arrangements for the EOTAS package for her son before the start of the new school year in September 2024. I am therefore concerned the Council did not present Mrs B’s case to its panel until October 2024 and then delayed paying Mrs B until January 2025. It is also clear there were delays issuing direct payments earlier in 2024.
57. Those delays are fault and meant Mrs B had to use her own money to fund her son’s education package. That is a serious injustice as the package in place for Mrs B’s son is expensive. I cannot criticise the Council for not making a payment for the summer term when it issued the direct payment in January 2025 though. That is because my understanding is the Council issues a payment for the start of each term. I am therefore satisfied the summer term payment for 2025 was not due until March 2025.
58. As remedy for this part of the complaint I recommend the Council put in place a procedure to ensure decisions about an education package for Mrs B’s son are completed and agreed before the start of the new school year. The Council should then ensure it provides Mrs B with her direct payment before the start of each term.
59. Mrs B says when one of the education provisions for her son ended at the start of the term in September 2024 the Council did not act to put alternative provision in place. The evidence I have seen satisfies me it was Mrs B’s decision to stop the provision in place. That was because Mrs B’s son was struggling to cope with attending the service as his mentor was leaving. I am also satisfied Mrs B told the Council at the beginning of September 2024 she did not consider her son could take on something new in replacement due to his trauma therapy. In those circumstances I have no grounds to criticise the Council.
60. Mrs B says the Council failed to respond to her emails. The Council accepts there were communication difficulties. It is also clear Mrs B has had several different case officers and the Council has not always kept Mrs B up-to-date with those changes. Failure to respond to Mrs B’s communications and failing to keep her up-to-date with what was happening is fault. As part of the remedy for that I recommend the Council ensure when changes in case officer are anticipated for an active case the person affected is notified of the change and the contact details for the new officer.
61. Mrs B says the Council failed to respond to her complaint within its published timescales. The Council accepts that. That is fault.
62. In addition to the financial remedy I have outlined earlier in this statement I also recommend the Council pay Mrs B an additional £1,000 to reflect the significant distress she has experienced as well as the financial impact of her having to cover some of her son’s education costs as the Council had not issued the payments on time. That exceeds the £500 the Ombudsman normally recommends for distress. That is because I am satisfied there are many parts of the complaint where Mrs B had to go to considerable time and trouble to pursue the Council and ensure her son had education provision. That makes a total financial payment of £2,500.

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Action

63. Within one month of my decision the Council should:
• apologise to Mrs B for the distress, uncertainty and frustration she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs B £2,500;
• put in place a procedure to ensure decisions about an education package for Mrs B’s son are completed and agreed before the start of the new school year. The Council should then ensure it provides Mrs B with her direct payment before the start of each term;
64. Within three months of my decision the Council should:
• hold a refresher training session for officers dealing with children with EHC Plans and EHC needs assessment. That training should cover the timescales the Council needs to adhere to, the recording of decisions and how decisions will be communicated to parents/carers;
• ensure proper handover processes are in place when new case officers are allocated and that those with active cases are notified of the change of case officer and the new case officer’s contact details.
65. The Council should provide us with evidence it has complied with the above actions.

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Final decision

66. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman