Summary: Ms X complained that the Council delayed issuing her child’s final Education, Health and Care Plan following an annual review. She also says the Council failed to respond to her request for a Personal Budget in 2024. We find the Council at fault for its delays in the annual review process, and for failing to respond to Ms X’s request for a Personal Budget in this time. This fault resulted in the delay of Ms X’s appeal rights and caused avoidable distress and uncertainty for the family. The Council has agreed to apologise to Ms X, pay her £250, and remind its staff of their statutory duty to respond to Personal Budget requests.

The complaint

1. Ms X complained the Council delayed finalising her child’s (Y) Education, Health and Care (EHC) Plan following an annual review in July 2024. The final EHC Plan was issued in November 2024. Consequently, her appeal rights were delayed, and Y’s educational needs remained unmet during this period. Ms X also says the Council failed to respond and consider her request for a Personal Budget.
2. Ms X says this lack of response and overall delay caused the family significant stress and uncertainty regarding the educational provision Y was receiving at the time. Additionally, she believes that the delay and lack of appropriate support have negatively impacted Y’s educational progress.

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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. 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 made written enquiries of the Council. I have also considered relevant law, policy and guidance.
7. Ms 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

Special educational needs

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.

Reviewing EHC Plans

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.

Appeal rights

11. There is a right of appeal to the SEND Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan; and
• amendment to these elements of an EHC Plan.

Personal Budgets

12. 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.
13. 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.
14. 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.
15. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

What happened

16. This chronology includes an overview of key events and does not detail everything that happened.
17. Y has special educational needs and an EHC Plan.
18. In February 2024 Ms X contacted the Council to request a Personal Budget to fund some of Y’s social care needs and secure special educational provision for Y. The Council did not consider or respond to this request.
19. An annual review meeting was held at Y’s school in July.
20. Following the review, the Council decided to amend the EHC Plan. It sent the draft Plan to Ms X in September.
21. Ms X responded with her comments and concerns about the provision set out in the Plan. She felt weekly occupational therapy (OT) and speech and language therapy (SALT) provision should be included in the Plan to adequately meet Y’s needs.
22. Ms X also raised concerns with the Council in October during the annual review process that it had failed to include her request for a Personal Budget from February 2024 in the EHC Plan. She felt Y was therefore not receiving adequate provision. She told the Council she was having to fund certain provisions for Y.
23. Ms X complained to the Council in October 2024 that it had not finalised the EHC Plan. She also complained it had not included the Personal Budget in the EHC Plan. In the Council’s response it:

• Accepted it had not met its statutory duties in not issuing a final EHC Plan within the legal timescale and upheld her complaint.
• Acknowledged Ms X had made another Personal Budget request and said once this had been approved the EHC Plan could be updated to reflect any provision agreed. It did not refer to the Personal Budget request made in February 2024.

24. The Council then issued the final amended EHC Plan on 21 November 2024. Ms X escalated the complaint to stage two of the Council’s complaints process in November. In its response, issued in December, the Council apologised to Ms X for the delay and explained this was due to staff capacity issues.
25. Ms X remained unhappy with the issue of the delay, and the impact she felt the subsequent lack of provision has had on Y’s educational attainment. She complained to us in January 2025.
26. Ms X registered an appeal with the SEND Tribunal in 2025 about the content of Y’s EHC Plan. She has also submitted a new Personal Budget request which is currently under the Council’s consideration.

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Analysis

27. As the annual review took place on 16 July 2024, the statutory deadline for the Council to issue Y’s final EHC Plan was 8 October 2024. The Council issued the EHC Plan on 21 November 2024, which means it was issued over six weeks late. This is fault.
28. Between 16 September 2024, when the draft EHC Plan was issued, and 21 November 2024, when the final Plan was issued, Ms X and the Council were in consultation about the content of the EHC Plan. Ms X did not agree with the provision set out in the Plan and wanted it to be amended to include additional weekly OT and SALT provision.
29. Had the Council finalised the EHC Plan in line with the statutory timeframe, it would have given Ms X appeal rights to the SEND Tribunal sooner. In failing to finalise the Plan on time, the Council delayed Ms X’s appeal rights. Even if Ms X disagreed with the content of the Plan, the Council should have issued a final EHC Plan by 8 October 2024; this would have given Ms X her appeal rights, and the opportunity to raise her concerns at the SEND Tribunal.
30. As Ms X did go on to use her appeal rights, I am of the view the delay caused the family unnecessary uncertainty and distress. I have made a recommendation to address this injustice below.
31. The Council accepts it struggled to meet its statutory duty because of staffing issues, an increased workload, and outsourcing agency workers which led to inconsistencies in practices. The Council has outlined the steps it has taken to address these issues including:

• Investing in expanding special educational needs and disabilities (SEND) workforce, including recruitment of permanent SEND Caseworkers and Educational Psychologists.
• Further recruitment approved for 2025/26 financial year, including permanent caseworkers and senior caseworkers.
• Reminding SEND Team of statutory timeframes and duties.
• Implementing an EHC Plan Review Recovery Plan process, which uses live data to monitor the progress and timeliness of annual reviews.

32. I am content the Council is taking suitable action to address its workforce capacity issues and has implemented a monitoring mechanism to ensure timeliness of the annual review process. I do not therefore have further service improvement recommendations to make here.
33. Finally, the Council says it has no record of Ms X making a Personal Budget request in February 2024. However, I have seen a copy of an email that shows she made the request to the Council’s Social Care team in February 2024, and further emails that show she raised the issue with the Council during the annual review process.
34. As set out in paragraph 15, if a council refuses a request for a Personal Budget it must respond in writing. It appears the Council did not refuse the Personal Budget, but did not acknowledge the request or respond to it at all. Even when Ms X raised the issue throughout the review process, the Council did not respond or process her request, as the SEND Code of Practice states it must. This is fault which caused Ms X frustration, uncertainty and distress. I have recommended a remedy to address this uncertainty, as outlined below.
35. However, I cannot say, even on the balance of probabilities, the Council would have agreed to the Personal Budget at the time Ms X first made the request in February 2024. I therefore could not say the Council’s failure to respond led to any shortfall in provision for Y and I have not recommended a remedy to reimburse Ms X for the provision she had to fund herself. However, I do consider a service improvement is required here to address the way the Council processes and responds to requests for Personal Budgets. I have outlined this below.

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Agreed Action

36. Within one month of the final decision the Council has agreed to:
1. Apologise to Ms X for the distress and uncertainty caused by the Council’s faults. 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.
2. Pay Ms X £250 in recognition of the avoidable distress she and her family were caused by its failure to issue Y’s final amended Education, Health and Care Plan within statutory timescales following the annual review held in July 2024, which resulted in a delay to her right of appeal. This payment also addresses the additional uncertainty caused by the Council’s failure to acknowledge and respond to her request for a Personal Budget.
3. Issue written reminders to relevant staff to ensure they are aware of the Personal Budget process, and that all requests for a Personal Budget are responded to. If the Council decides to refuse a request, it must put the reasons in writing and inform the young person or parent of their right to a review.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. There was fault by the Council, which caused Ms X and Y an injustice. The Council has accepted my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman