Summary: Mrs X complained about the Council’s handling of her child’s Education, Health and Care Plan, which she said led to a loss of education and social isolation for her child. We found avoidable delay by the Council in completing the 2024 Annual Review of the Plan. The Council also failed to properly monitor the Plan. The Council agreed to apologise to Mrs X and make a symbolic payment in recognition of the avoidable distress and uncertainty caused by its delay and failure properly to monitor the Plan.

The complaint

1. Mrs X complained about the Council’s handling of her child’s (here called S) Education, Health and Care Plan (EHC Plan) because:

• it delayed both starting and completing the 2024 Annual Review the EHC Plan;
• it failed to make clear whether the EHC Plan would continue to provide for education otherwise than at school;
• it failed to secure provision about ‘sensory diet’ as set out in section F of the EHC Plan; and
• after Autumn 2023, it failed to secure provision when S stopped attending activities named in the EHC Plan (here called Session One, which concerned technology activities and Session Two, which involved activities with animals).

2. Mrs X said what happened resulted in lost education and significant social isolation for S. It also caused all her family avoidable distress. Mrs X wanted the Council to apologise and pay compensation to S. Mrs X also wanted better training for Council officers.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. Where we find fault, we must also consider whether that 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. Here called the SEND Tribunal.
8. 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.
9. 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)
10. 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 have and have not investigated

11. Mrs X complained to us in January 2025, which was the end date for my investigation. Among the complaints made, Mrs X said the Council had failed to secure some alternative educational provision set out in S’s EHC Plan after Autumn 2023. A complaint about a lack of provision in 2023, was a late complaint (see paragraph 5 of this statement). However, Mrs X said the failure to secure provision was continuing in January 2025. So, I could investigate the complaint over the preceding 12 months, that is, back to January 2024. I saw no good reason to exercise discretion to consider the complaint beyond January 2024 and back to Autumn 2023. However, to the extent necessary to properly understand what happened during 2024, I took account of events from Autumn 2023. (I also took account of events during 2025 to the extent necessary to provide overall context for the complaint investigated.)

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council. I also considered relevant law, policy and guidance. This included the Special Educational Needs and Disability Regulations 2014 (the SEND Regulations). And, the Government’s Special Educational Needs and Disability Code of Practice, 2015 (the SEND Code). I gave Mrs X and the Council an opportunity to comment on my draft decision and considered any comments received before making a final decision.

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What I found

Special Educational Needs and EHC Plans

13. A child with special educational needs (SEN) 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 SEND Tribunal or the council can do this. 
14. The council must arrange to review an EHC Plan 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 and the educational placement. A review meeting must take place.
15. Within four weeks of a review meeting, the council must tell the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Where the council wants to amend the EHC Plan, it must send the child’s parent a copy of the existing (non-amended) plan and a notice detailing the proposed amendments. The council must also include copies of any evidence to support the proposed changes. (See regulation 22(2) of the SEND Regulations and paragraph 9.194 of the SEND Code.) Case law sets out this should also happen within four weeks of the review meeting. And, to complete the review, the council must issue any amended final EHC Plan within 12 weeks of the review meeting. (See regulation 20(10) of the SEND Regulations and paragraph 9.176 of the SEND Code.) 
16. A Personal Budget is the money the council identifies it needs to pay to secure the provision in a child’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 so they can commission the provision in the EHC Plan themselves.
17. The council’s 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.
18. 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 2014). The Courts have said the duty is owed personally to the child and cannot be delegated. This means if the council asks another body to make the provision and they fail 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)  
19. 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 procedures in place to: 

• check the special educational provision is in place when issuing a new or amended EHC Plan or on changing the educational placement; 
• check the provision at least yearly during the EHC Annual Review; and 
• quickly investigate and act on complaints or concerns about provision not being in place. 

20. Parents have appeal rights to the SEND Tribunal against many council EHC Plan matters. For example, parents may appeal the special educational provision set out in the EHC Plan and any amendments to such provision.

Background

21. In Summer 2023, the Council issued an amended EHC Plan for S following an Order earlier that year from the SEND Tribunal. Under the EHC Plan, S’s educational provision would be ‘other than at school’. The EHC Plan included a personal budget for listed activities, including Session One and Session Two. The EHC Plan said people providing Session One and Session Two, and other activities, would be paid directly by the Council on receipt of their invoices.
22. In Spring 2024, Mrs X contacted the Council about the Annual Review of S’s EHC Plan. The Council said S’s caseworker would get in touch to arrange the review meeting. Two weeks later, Mrs X chased the Council saying no one had been in touch. Mrs X said there was a need for urgent action as S was no longer able to engage with the provision set out in the EHC Plan. Soon afterwards, the 2024 Annual Review started and the Annual Review meeting took place a year after the Council had issued the 2023 EHC Plan. The report of the meeting included Mrs X saying S was no longer attending Session One although S had talked a little about attending Session One.
23. A month after the meeting, in Summer 2024, the Council sent Mrs X an amended draft EHC Plan for S and invited her comments within 15 days. The amended draft continued to include Session One and Session Two and a personal budget for them.
24. In Autumn 2024, Mrs X complained to the Council about its failure to secure all the educational provision set out in S’s EHC Plan. Mrs X sought a meeting to discuss how all S’s educational provision would be secured. The Council had yet to issue an amended final EHC Plan to complete the 2024 Annual Review.
25. In responding to the complaint, the Council referred to the amended draft EHC Plan. It said it assumed Mrs X agreed the amended draft as the date for her to comment on it had passed, but it had not heard from her. The Council said it consulted schools at each Annual Review as it needed to be satisfied education other than at school remained appropriate. It had not completed consultations about a placement for S but no school yet could offer S a place. On completion of consultations, its SEND Resource Panel (‘the Panel’) would consider S’s case and decide if education other than at school should continue. The Council said it would meet Mrs X once it had the Panel’s decision on S’s case.
26. About two weeks later, the Council’s written records referred to S’s caseworker having called and messaged Mrs X to tell her of the Panel’s decision. The Panel’s decision was to agree that S should continue to receive education other than at school.
27. A Council officer then contacted Mrs X to discuss what she had said about S’s educational needs not being met. The Council’s note of the discussion referred to:

• Mrs X saying S could only manage one hour’s tuition a day on three days (which fell short of the tuition hours in S’s EHC Plan);
• the 2024 Annual Review meeting not resulting in the Council agreeing to seek alternative provision for S;
• the Council saying it could not commission services from a provider now suggested by Mrs X as that provider did not hold the necessary registration from Ofsted; and
• the Council agreeing to meet with Mrs X to discuss support for S from alternative registered providers. (Mrs X confirmed the Council sent her links to registered providers.)

28. Meanwhile, dissatisfied with its complaint response, Mrs X took her complaint to the second and final stage of the Council’s complaints procedure. Mrs X said the Annual Review procedure remained incomplete six months after the review meeting. Mrs X also referred to section F of S’s EHC Plan and listed matters she said had not been provided for over a year.
29. The Council replied about two weeks later, saying it had followed its policy and procedure in referring S’s case to the Panel and then told Mrs X of the Panel’s decision. The Council also said Mrs X had asked for a meeting to discuss arrangements for S’s section F provision. And, since the Panel’s decision, it had telephoned her to arrange that meeting and, while it awaited her response, one of its officers would contact her again about the meeting.
30. A few weeks later, Mrs X complained to the Ombudsman. This complaint referred to delay in starting and completing the 2024 Annual Review of S’s EHC Plan, including whether education other than at school would continue. The complaint said the Council had not secured alternatives after S stopped attending Session One and Session Two, which together comprised six hours of S’s weekly provision. The complaint also said the Council had failed to secure provision recommended by an Occupational Therapist.
31. Once we had received the complaint, there was further contact between Mrs X and the Council, including a Council officer visit to Mrs X’s home. Mrs X told the Council that, while establishing a good relationship with the home tutor, S was not yet able to take part for all the agreed hours of private tuition. The Council referred to S disengaging with group-based provision and the therapeutic offer it had originally put in place. It also continued to refuse Mrs X’s suggestions for unregistered support groups for S. The Council said Mrs X declined the support suggestions it made. Mrs X disputed what the Council said, including about S disengaging with support, and sought a further review of S’s EHC Plan. Mrs X also told the Council that S was now attending one of her suggested groups and again asked for its inclusion in S’s EHC Plan.

What the Council told us

32. The Council recognised it had not issued S’s amended final EHC Plan within 12 weeks of the 2024 Annual Review meeting. It said, after sending its final response to Mrs X’s complaint, S’s caseworker had left its employment. It had now appointed a new caseworker who would take urgent action to complete S’s 2024 Annual review and then arrange the 2025 Annual Review. (In Summer 2025, the Council issued S’s amended final EHC Plan following the 2024 Annual Review meeting. The Plan included a personal budget for Session One and Session Two. The Council also took steps to arrange the 2025 Annual Review.)
33. The Council said it had now put in place a plan to address delay in its Annual Review procedures. This included setting up an Annual Review officer team to work with schools; and changes to its computer management system to improve case monitoring.
34. The Council said it had sought information from S’s home tutor about ‘sensory diet’ provision. It now considered S’s sensory and physical needs had not been adequately supported. The Council said it would address this, including contacting the home tutor.
35. The Council said provision in S’s EHC Plan focused on S’s special interests. However, Mrs X had explained that S’s interests were not as strong as previously. Some of the sessions and activities in S’s EHC Plan had been offered but not accepted by Mrs X. For example, Mrs X did not accept its offer of small group activities to develop S’s social skills and confidence.
36. The Council accepted the 2024 Annual Review meeting had discussed the adapted physical education curriculum included in S’s EHC Plan. And it had agreed to follow up the lack of such provision. However, it had not acted to put the provision in place.
37. It was made aware S had disengaged with Session One and Session Two at the 2024 Annual Review meeting. But no request for alternative technology provision was made. Mrs X had also said S was no longer interested in provision around animal care. S’s caseworker, who was no longer employed by the Council, had attended the review meeting. The caseworker had not told relevant colleagues provision was no longer being used and so it had not sought to replace it until dealing with Mrs X’s complaint. It had then acted in late 2024 to secure an information technology (IT) tutor for S from January 2025. However, after initial positive feedback, the IT tutor had since reported the family cancelling the sessions.
38. S’s EHC Plan also included attendance at an IT centre. But, given the time S’s first home tutor had needed to engage with S, it had considered it inappropriate to add a further tutor. However it recognised it had not routinely monitored the situation.
39. The Council said it had tried to get information about end dates for S’s participation with Session One and Session Two. However, it had received no response from the Session One group and would no longer use it to provide services. It also received no information from the Session Two group, which was no longer based in the local area.
40. In conclusion, the Council recognised there had been significant delays in handling S’s 2024 Annual Review and it had not routinely monitored delivery of provision set out in S’s EHC Plan. It had now put in place a six-week review policy under which it contacted families and providers to check provision was in place and being accessed.
41. The Council provided a spreadsheet showing that it received invoices for Session One in January, April, May and July 2024, which were paid. The spreadsheet did not show any 2024 invoices for Session Two. The spreadsheet also showed payments throughout 2024 for home tutoring and another activity.

Consideration

Introduction

42. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. And it is not our role to ask whether a council could have done things better or differently. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot question the decision, regardless of how strongly a complainant may disagree with it.
43. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every question a complainant may have about what a council did.

The 2024 Annual Review the EHC Plan

44. The was no dispute there was avoidable delay in completing the 2024 Annual Review of S’s EHC Plan. The Council should have completed the 2024 Annual Review within 12 months of the original Summer 2023 EHC Plan. And the amended final EHC Plan should have been issued within 12 weeks of the 2024 Annual Review meeting. However, S’s amended final EHC Plan was issued, and the 2024 review procedure completed, in Summer 2025. I therefore found fault here.
45. The avoidable delay would have been frustrating for Mrs X. It also denied Mrs X her SEND Tribunal appeal rights. Mrs X could only use these rights, for example if she disagreed with the educational provision in section F, once the Council issued the amended final EHC Plan. I therefore found the fault I identified caused Mrs X injustice.
46. The Council had recently put arrangements in place to address its delay in the conduct of Annual Reviews. I recognised it takes time to address service delays, which invariably will have led to backlogs. I found it reasonable and appropriate to give the Council time to assess if the changes improved its Annual Review process. I therefore did not recommend further service improvements at this time.

Continuing education otherwise than at school

47. The evidence showed Mrs X became aware S’s education other than at school might not continue when the Council first replied to her complaint. It then told Mrs X it was consulting schools about a placement for S before deciding if education other than at school remained appropriate for S. The evidence showed the Panel met to make this decision a few days after the Council sent Mrs X its first complaint response. The evidence also showed the Council had contacted Mrs X to tell her of the Panel’s decision, to continue S’s education other than at school, within a week of its meeting. I found no fault in the Council reviewing whether S’s education other than at school should continue, although I recognised it led to a brief period of uncertainty for Mrs X.

Section F of the EHC Plan and sensory diet

48. In responding to Mrs X’s Ombudsman complaint, the Council recognised the ‘sensory diet’ provision in S’s EHC Plan had not been properly met. I had no grounds to question the Council’s view and therefore found fault here. I also found that any such inadequate sensory provision would likely have had a detrimental impact on S. Accordingly, I found the fault caused injustice.

Session One and Session Two

49. The evidence showed that from 2023 Mrs X recognised there would likely be challenges in getting S to engage with provision outside the home. The evidence also showed that engagement with home tuition had proved challenging. The balance of the evidence also showed the Council, through S’s caseworker, became aware that S was no longer attending Session One or Session Two around the time of the 2024 Annual Review meeting. However, the Council later issued an amended draft EHC Plan for S that continued to include Session One and Session Two. This suggested the Council considered Session One and Session Two offered provision suitable to meet S’s relevant needs.
50. Mrs X had the opportunity to comment on the amended draft EHC Plan. The evidence showed the Council did not receive any comments from Mrs X. Substantive avoidable delay then followed before the Council issued the amended final EHC Plan, which continued to include Session One and Session Two. Issuing the amended final EHC Plan gave Mrs X legal rights of appeal to the SEND Tribunal if she wished to challenge, for example, the provision set out in that final Plan. We normally expect people to use their legal rights to appeal and, here, I saw no good reason why Mrs X, having received the amended final EHC Plan should not use her appeal rights (see paragraph 6).
51. However, in responding to us, the Council said it would not now use the Session One body and the Session Two body was no longer providing services locally. The Council also recognised it had not acted, after the 2024 Annual Review meeting, to address the lack of provision for meeting S’s physical health needs (PE) (see paragraph 36). And, in addressing S’s needs around information technology (IT), it had not acted to make alternative arrangements until late 2024 (see paragraphs 37 and 38). The evidence showed that after providing specific IT support from late 2024, the arrangement had broken down within a few months (see paragraph 37). However, the Council recognised it had not properly monitored the delivery of provision set out in S’s EHC Plan. I agreed. And the lack of monitoring was also evidenced by the uncertainty surrounding the Session One and Two bodies (see paragraphs 39 and 41). I therefore found fault in how the Council monitored S’s EHC Plan.
52. There was evidence that S faced challenges in engaging with provision set out in the EHC Plan (see paragraphs 31 and 37). And these challenges existed before the 2024 Annual Review meeting and continued beyond January 2025, the end date for my investigation. I found there was uncertainty about the provision S would likely have accessed if the Council had completed the 2024 Annual Review within the statutory 12 weeks of the meeting rather than 12 months. S could not access a PE curriculum as the Council admitted it did not secure this provision. But the amended final EHC Plan eventually issued in Summer 2025 continued to include Session One and Session Two. So, the fault I identified caused injustice for Mrs X and S.
53. The Council recognised the failure to properly monitor S’s EHC Plan highlighted a wider problem. To address the matter, the Council said it had now put in place a six-week review policy to establish whether EHC Plan provision was in place and used. I recognised the Council needed time to assess whether its new policy worked in practice. I therefore did not recommend further service improvements at this stage.

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Action

54. To address the injustice (see paragraphs 45, 48 and 52) caused by the faults I identified, the Council agreed my recommendations to (within 30 working days of this statement):

• send Mrs X a written apology;
• pay Mrs X a symbolic payment of £600; and
• (if not yet completed) to progress the 2025 Annual Review of S’s EHC Plan without avoidable delay to ensure that, if Mrs X disagrees with the section F provision in any amended final EHC Plan, she has timely access to her SEND Tribunal appeal rights.

55. The Council should consider our guidance on remedies in making the written apology referred to paragraph 54. The Council also agreed to provide us with evidence it complied with paragraph 54.

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Decision

56. I found fault causing injustice. The Council agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman