Summary: The Council delayed issuing an amended Education, Health and Care Plan for Ms X’s child, Y. It also failed to secure the Occupational Therapy (OT) provision in the Plan and make direct payments for Y’s tuition. This was fault and caused Ms X frustration and distress. The Council has agreed to apologise to Ms X, pay all outstanding direct payments, review why it has repeatedly failed to make the payments and make a payment to Ms X to recognise the impact of its failings.

The complaint

1. Ms X complained the Council failed to secure the provision in her child, Y’s Education, Health and Care (EHC) Plan following a Tribunal order in May 2024. She said the Council failed to secure Y’s Occupational Therapy (OT) provision and make direct payments for Y’s tuition. She also complained the Council failed to secure tuition for Y during school holidays. Ms Y wants the Council to provide the OT in Y’s EHC Plan, make the direct payments and pay for Y’s tuition during school holidays.

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The Ombudsman’s role and powers

2. 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)
3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
7. Ms X and the Council have had an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

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What I found

Education, Health and Care (EHC) Plans

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 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)  
10. 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.
11. 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.

What happened

12. On 1 May 2024 the SEND Tribunal ordered the Council to amend Y’s EHC Plan. The Council began discussing the cost of Y’s tuition with Ms X and issued the amended final EHC Plan on 29 July 2024. The Plan included:
• Up to 25 hours of 1:1 home tuition per week, increased gradually and reviewed termly. The cost of this provision would be paid in direct payments to Y’s parents.
• Eight hours per term of direct OT in the home.
• Four hours per term of indirect OT for report writing and meetings with Y’s parents, tutors and other professionals to review and update Y’s goals.
13. The Council has provided a summary of Y’s personal budget agreement from July 2024 onwards. It says the Council agreed to start Y’s tuition with eight hours a week, for 39 weeks. The summary said the Council would pay providers directly, on receipt of an invoice, while an internal council email discussed direct payments.
14. Y’s parents began to commission and pay for tuition of eight hours a week. At the same time Y’s parents contacted the Council seeking clarity on payment for Y’s tuition. In the emails they mentioned some of Y’s tuition happened outside of term time. Y’s parents continued to pay for Y’s tuition for the period covered by this investigation.
15. Y also began to receive the OT provision in their Plan. In September 2024 the Council wrote to Y’s parents to say its contract with its OT provider had ended. Later in September the Council asked Ms X for information about Y’s tutors, including their registration with Companies House, DBS checks and insurance details.
16. Ms X complained to the Council. She said Y was not receiving the OT in their Plan, she had not received any direct payments for Y’s tuition and Y’s tutors remained unpaid. She queried whether the Council needed all the information on Y’s tutors it had asked for.
17. The Council responded to Ms X’s complaint in November 2024. It accepted it had failed to provide Y with the OT specified in their Plan following the end of its contract with its OT provider. It apologised and said it would be in touch as soon as it was able to deliver the OT again. It said it would discuss what missed provision Y needed at that time. It also accepted it had failed to make the direct payments for Y’s tuition and apologised. It explained it had introduced some basic safeguarding checks around issuing direct payments and said it needed this information to continue with direct payments. However, it accepted it had not asked for this information early enough.
18. The Council said it would transfer direct payments for the period 5 June to 22 July by 13 December and would transfer payments for tuition from September 2024 when it received the information for its tutor checks. It said it would be in touch by 6 December regarding Y’s OT.
19. Ms X asked the Council to consider her complaint at stage two of its complaint procedure in December 2024. She said it had not resolved the OT issue, and she had not received any direct payments. She also said Y needed tutoring outside of term dates as they were not receiving full time tutoring during term time. In its stage two response the Council said it would be in touch to discuss putting in place interim OT. It said the direct payment was imminent, but Y’s EHC Plan did not specify tutoring outside of term time. Ms X complained to the Ombudsman.
20. Y’s OT restarted in March 2025. In response to our enquiries the Council confirmed it had authorised a direct payment up to December 2024 but had still not made the payment. It added that Y had missed 16 hours of direct OT provision over two terms. It said it would assess the impact of the missed OT at Y’s forthcoming annual review.

My findings

21. The Council had five weeks to implement the Tribunal’s order from May 2024. It did not issue Y’s final EHC Plan for 12 weeks. This was fault and resulted in a seven-week delay to Y receiving the provision in their Plan. This caused Ms X frustration and uncertainty over when Y’s direct payments would begin.
22. Y’s EHC Plan specified OT provision which the Council was under a duty to provide. The Council accepted it failed to provide Y with OT for one term, between September and December 2024. It has since failed to provide Y with OT until March 2025. This was fault and resulted in Y missing out on two terms of OT. This caused Ms X further frustration and uncertainty over when Y would receive their OT provision. The Council will review the impact of the missed provision at Y’s forthcoming annual review. I am satisfied this provides an opportunity to remedy the two terms of missed OT provision.
23. The Council’s summary of Y’s personal budget says it will pay Y’s tutors directly, but internal emails refer to direct payments. The Council failed to pay the tutors and has since consistently failed to reimburse Ms X for the payments. This was fault. Y continued to receive the provision in their Plan as Ms X paid for the tuition herself, but the delay and confusion caused Ms X additional frustration and uncertainty over when she would receive Y’s direct payments. Despite accepting the delay and agreeing to make a payment covering tuition up to December 2024, the Council has yet to issue the payments. The Council has had every opportunity to make the payment and is unable to explain why it has not paid Y’s tutors directly or the further delay to paying Ms X. This has caused Ms X additional frustration and uncertainty.
24. Ms X also complained Y required tutoring outside of term time. Y’s EHC Plan specifies a maximum of 25 hours a week of direct payments to deliver the provision in Y’s Plan. Generally, provision in a Plan would be delivered in term time. Y’s Plan specifies termly reviews and refers to “usual school terms”. While Ms X briefly mentioned tuition outside of term time in email correspondence in July 2024, the Council was entitled to base its approach on the EHC Plan. The Council was not at fault.
25. As Y’s provision is being delivered through direct payments it is for the Council to agree how Ms X spends future direct payments and whether it is in Y’s best interests to spread their 25 hours across non-term weeks.

Action

26. Within one month of the final decision the Council has agreed to:
1. Apologise to Ms X for the frustration and uncertainty caused by the fault identified in this decision. 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.
2. Pay Ms X all outstanding agreed direct payments without delay
3. Agree a future payment schedule with Ms X that ensures Y continues to receive the provision in their EHC Plan.
4. Pay Ms X £1000 to recognise the frustration and uncertainty caused by its delay implementing Y’s amended EHC Plan and making Y’s direct payments and the further frustration and uncertainty caused by its continued delay in making Y’s direct payments.
27. Within three months of the final decision the Council has agreed to review why it failed to pay Y’s tutors direct, as agreed, and then repeatedly failed to make Y’s agreed direct payments to Ms X. The Council will then update the Ombudsman on any changes to its processes to ensure there is no repeat of these failings.
28. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman