Summary: Mrs X complained of the Council’s handling of her child, Y’s, Education Health and Care (EHC) Plan. Based on current evidence, the Council was at fault for failing to ensure Y’s Education, Health and Care (EHC) Plan was reviewed within statutory timescales. The Council was also at fault for a one-month delay in implementing Y’s funding for his Education Other Than at School (EOTAS) package. The Council has agreed to apologise and make a payment to recognise the distress, frustration and uncertainty this caused Mrs X. The Council was not at fault for putting the money into a managed account for Mrs X.

The complaint

1. Mrs X complained of the Council’s handling of her child, Y’s, EHC Plan. This included:
• The Council delayed implementing Y’s funding for his EOTAS package
• The Council put the funding in a managed account for Mrs X to access despite agreeing to a non-managed account
• The Council failed to ensure a review of Y’s EHC Plan was held within statutory timescales
2. Mrs X says this caused them distress, frustration and uncertainty about the education Y would receive.

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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(1), 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 Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

EHC Plans and Annual Reviews

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 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. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
11. 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.

Phase transfers

12. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution.
13. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer. 

Education Other Than at School (EOTAS)

14. For some children and young people, education in any setting would be inappropriate due to their special educational needs. This is referred to as EOTAS.
15. If the Council agrees it would be inappropriate for any required special educational provision to be delivered in a school, it can agree to arrange for it to be delivered somewhere else, for example at home. The Council must arrange and pay for that provision.

Council’s direct payment and personal budget policy

16. The policy states that one option may be that, once direct payments have started, the Recipient is supported by a provider to manage the direct payments. Whilst this may be presented as an option for some Recipients, the Council may require other Recipients to use a provider to manage the direct payments, as a condition of allowing the direct payments to proceed.

What happened

17. Mrs X has a child Y who has Special Educational Needs. Y has an EHC Plan in place which outlines the specialist provision they are entitled to.
18. In April 2024, prior to the Council agreeing and implementing the funding for Y’s EOTAS package for the 2024-2025 school year, Mrs X requested this to be placed into a non-managed account. A managed account is where a company ensures any care bills, invoices and wages are paid correctly and on time on behalf of Mrs X. It also monitors the account to highlight unexpected income or outgoings.
19. Mrs X said there was too much admin work that she had to complete as part of the managed account and advised she had spoken to the account provider about changing this to a non-managed account. The same month the Council sent Mrs X the forms to change the account over to a non-managed account.
20. The following month the Council emailed Mrs X saying there had been some confusion and it had contacted the account provider who had said it had not advised Mrs X to have a non-managed account. It said the Council had made the decision to continue with a managed account for the direct payments. It explained this will ensure there is a formal review of the costs and the method by which the funds are being used.
21. In July 2024, the Council held Y’s annual review meeting. The Council sent Mrs X a letter proposing to amend the EHC Plan in September 2024. Shortly after, the Council sent Mrs X a letter notifying her of the date arranged for the phase transfer review of Y’s EHC Plan.
22. In October 2024, Mrs X raised a stage one complaint about the following:
• The Council had not sent her the letter proposing to amend the EHC Plan within timescales following the annual review in July;
• The Council had now arranged a phase transfer review asking for the same paperwork completed in July;
• The funding for Y’s EOTAS package was received one month late. This meant Mrs X had been unable to claim expenses back since the start of term.
23. The Council, in its complaint response, accepted the annual review timescales were not adhered to. The Council also said there were delays in issuing the funding as the wrong amount of EOTAS funding was initially requested. This was identified by Mrs X in late August when the Council sent her the direct payment form. This was rectified and the Council sent the form again in mid-September. The Council also said Mrs X could not have a non-managed account for the money to be transferred to in line with its policy.
24. The following month the Council issued a stage two response reiterating its previous response and upholding the complaint.
25. In November 2024, the phase transfer meeting was held. Following this the Council issued the amendment notice at the start of March and the amended final EHC Plan at the end of March 2025.
26. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us.

My findings

Funding

27. Mrs X required Y’s EOTAS funding to be in place by the start of September 2024 for the new school year. The Council did not send the initial direct payment form for Mrs X to fill in to receive the funding until late August 2024. Mrs X identified the funding proposed was incorrect which meant the Council had to send Mrs X a second form to fill out. This was not sent to Mrs X until mid-September 2024 and the money did not arrive in Mrs X’s account until early October 2024. Had the Council started the funding approval process earlier, it would have given enough time to rectify the mistake prior to the new school year. The one-month delay was fault which caused Mrs X distress, frustration and uncertainty. However, Y did not lose out on any education because of the delay.
28. Mrs X asked for the EOTAS funding to be placed in a non-managed account. Mrs X complained that despite the Council agreeing to this, it then put the funding in a managed account. The records show the Council did originally agree this which was on the basis Mrs X had discussed and agreed this with the account provider. However, upon the Council speaking to them, the provider had not agreed or suggested a non-managed account. The Council decided to continue with a managed account for the direct payments and explained its reasons for doing so. Whilst I appreciate this is frustrating for Mrs X, given the admin work she says is involved with using a managed account, it is a decision the Council is entitled to make and the decision is in line with its policy. Therefore, the Council was not at fault.

Annual reviews

29. The Council held Y’s annual review meeting in early July 2024 and decided to amend Y’s EHC Plan. This meant the Council should have sent Mrs X the amendment notice by early August 2024. The Council did not do this until late September which was a delay of seven weeks and fault. The Council then failed to issue the amended final EHC Plan which was also fault. This caused Mrs X distress, frustration and uncertainty.
30. Following this, the Council held Y’s phase transfer review in early November 2024. The Council should have sent Mrs X the amendment notice by early December 2024 and issued the amended final EHC Plan by late January 2025 to meet the 12 week timescale. The Council did not issue the Plan until the end of March which was a delay of nine weeks and fault. This caused Mrs X distress, frustration and uncertainty.
31. We have found similar fault with the Council on a separate case. Following that case, the Council agreed to prepare an action plan if it found flaws in its annual review process leading to delays. Therefore, it does not require a further service improvement.

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Action

32. Within one month of the final decision, the Council has agreed to take the following action:
1. Apologise to Mrs X and pay her £150 to recognise the distress, frustration and uncertainty caused by the Council’s delays with the reviews and in issuing the EOTAS funding. 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. Remind relevant officers to apply for funding far enough in advance so any mistakes can be rectified before it causes delays for the recipient.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I find fault causing injustice. The Council has 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