Summary: Mrs X complained about the Council’s handling of her child Y’s Education, Health and Care (EHC) Plan since 2023 including annual review delays and a failure to pay the personal budget. The Council was at fault. It failed to carry out annual reviews between August 2023 and July 2024 and then delayed issuing an amended Plan prior to Y’s transition to post-16 education. It also failed to review and pay Y’s personal budget which meant Mrs X was unable to arrange therapy provision between September 2023 and July 2024. The Council agreed to apologise to Mrs X and Y and make payments to acknowledge the distress caused the impact on Y’s education and development.

The complaint

1. Mrs X complained about how the Council handled her child, Ys education and their Education, Health and Care (EHC) Plan since 2022. Specifically, she complained the Council:
1. failed to carry out annual review meetings between August 2023 and July 2024;
2. failed to pay Y’s personal budget to support Y’s EHCP provisions for the 2023/24 academic year;
3. failed to provide provisions as set out in Y’s EHC Plans such as weekly 1:1 counselling between August 2022 and December 2024;
4. failed to issue an amended EHC Plan in March 2024 in Y’s transition year for post-16 education; and
5. failed to issue an amended EHC Plan or a decision letter following the AR in July 2024 within the statutory timeframe.
2. Mrs X said Y has missed out on weekly 1:1 counselling sessions for nearly 2.5 years This has impacted on Y’s education and development and has caused her distress and uncertainty. Y also had an out-of-date EHC Plan when Y began their post-16 education in September 2024.

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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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What I have and have not investigated

6. 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).
7. I have therefore not investigating Mrs X’s complaint about the Council’s failure to provide weekly 1:1 counselling sessions between August 2022 and August 2023 as it is late and as it was reasonable for Mrs X to have complained to us about this period earlier.
8. I have investigated the Council’s failure:
1. to carry out annual reviews between August 2023 and July 2024;
2. to pay Mrs X’s personal budget for the 2023/2024 academic year which should have enabled her to commission alternative therapy provision as set out in Y’s EHC Plan between September 2023 and December 2024;
3. to commission or ensure Y received weekly 1:1 counselling sessions between September 2023 until December 2024;
4. to issue an amended EHC Plan in March 2024 in Y’s transition year for their post-16 education; and
5. to issue an EHC Plan within statutory timeframes following an annual review in July 2024.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. 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

Education Health and Care Plans

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the young person’s needs and what arrangements should be made to meet them.
12. 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.
13. The EHC Plan is set out in sections which include: 
• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement. 
14. 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).

Annual reviews

15. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Where the council proposes to amend an EHC Plan following a review, 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.

EOTAS

16. For some children and young people, education in any setting would be inappropriate due to their special educational needs. This is often referred to education otherwise than in a school (EOTIS), sometimes known as EOTAS

Personal budgets

17. 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.
18. 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.
19. 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.
20. 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

21. Mrs X has a child, Y who has special education needs. The Council issued Y’s first EHC Plan in August 2022 confirming a mainstream secondary school setting for Y. The provision outlined in Section F of the Plan included alternative therapy provisions such as a forest school, equine therapy, a personal assistant (PA) and 1:1 weekly counselling therapy.
22. The Council agreed to provide Mrs X with a personal budget (PB) to allow her to directly commission Y’s specialist provision. The EHC Plan listed the PB as ‘to be discussed’ in Section J. It was agreed and arranged separately through an agreement between the Council and Mrs X in October 2022 shortly after the initial EHC Plan was issued in August 2022. The Council subsequently paid the PB in four instalments for the 2022/2023 academic year. The Council’s itemised personal budget did not include the weekly one-to-one counselling sessions, nor did the Council commission this service directly, meaning Y did not receive it.
23. In the 2022/2023 academic year Y was too unwell to attend some of their alternative therapy provision leading to an underspend in the PB.
24. In March 2023 the Council issued a final amended EHC Plan which it said was in anticipation of their transition to post-16 education. The Council did not hold an Annual Review (AR) meeting prior to issuing the amended Plan. The revised Plan updated Section I to specify Education Other Than at School (EOTAS) and included provision for home tuition for Y.
25. In April 2023 the Council made its last payment towards Mrs X’s personal budget covering Y’s provision for the remainder of the 2022/ 2023 academic year.
26. In September 2023, Y began the 2023/2024 academic year. Although Y was now post-16 they repeated Year 11 under the EOTAS package. The Council did not agree or pay a PB for the 2023/2024 academic year.
27. As Y was repeating Year 11, the Council should have held an AR to prepare an amended Education, Health and Care Plan (EHCP) by March 2024, in anticipation of Y’s transition to post-16 education from September 2024. The Council acknowledged this review did not take place.
28. During the 2023/24 academic year the Council directly commissioned and funded Y’s online tuition but acknowledged it did not agree to or make any PB payments. Mrs X used the surplus funds from the 2022/2023 personal budget to commission Y’s PA. Without the PB Mrs X was unable to pay for the alternative therapy provision as set out in Y’s EHC Plan.
29. In July and August 2024 the Council carried out two AR meetings.
30. In August 2024 Mrs X complained to the Council. She said it failed to carry out annual reviews and secure provisions in line with Section F of Y’s EHC Plan.
31. In September 2024 Y began attending college which was Y’s and Mrs X’s preferred choice of placement for their post -16 education.
32. The same month the Council issued Y’s draft amended EHC Plan naming the college as his current placement. The Council issued Y’s final EHC Plan in December 2024 naming the college in section I. This plan no longer included weekly one-to-one counselling session or any of the other alternative therapy provision that were in Y’s EHC Plan up until this point.
33. While the Council upheld Mrs X complaints about delays and failures to carry out AR meetings, it did say it had provided funds in the form of a personal budget for Mrs X to secure the provisions as set out in Y’s EHC Plan. Mrs X was unhappy with the Council’s stage two complaint response and said it had failed to take responsibility for not conducting annual reviews and for not securing the provisions outlined in Y’s EHC Plan.
34. In January 2025, Mrs X asked us to investigate.

My findings

EHC Plans and annual reviews

35. The Council issued Y’s first EHC Plan in August 2022 which means it should have held an annual review by August 2023. It issued an amended Plan in March 2023 without carrying out a review meeting. That was fault and meant neither Y or Mrs X had the opportunity to feed any concerns or updates into Y’s ongoing plans.
36. The Council should have held an annual review and issued Y’s amended EHC Plan by 31 March 2024 to support their transition to post-16 education from September 2024. Not doing so was fault and subsequently meant Y started college without an up to date Plan.
37. Y’s AR meeting was held in July. The Council was required to issue Y’s amended EHC Plan within 12 weeks of the meeting. In line with statutory timescales, the Council should have issued the final amended Plan in late September 2024. It did not issue the final amended Plan until December 2024 which was a delay of ten weeks and fault.
38. However, Y began attending college in early September. There is no evidence the delay in issuing the EHC Plan postponed the start of Y’s post-16 education, and therefore caused no injustice.

Education and personal budget

39. Y’s EHC Plan from August 2022 set out multiple provisions Y would receive including forest school, equine therapy, a personal assistant (PA) and one-to-one weekly counselling therapy.
40. The Council agreed to and paid a personal budget (PB) for the 2022/2023 academic year, with the final instalment made in April 2023. However, it failed to review the PB for the 2023/2024 academic year and failed to continue the PB which was also fault. The Council directly funded Y’s home tuition in line with Y’s final amended EHC Plan issued in March 2023 and Mrs X used surplus funds from the 2022/2023 PB to pay for Y’s personal assistant (PA). However, the lack of PB meant Mrs X could not commission some of the specialist provision in the plan and the Council failed to make alternative arrangements. This led to Y missing out on 12 months of weekly one-to-one counselling sessions between September 2023 and July 2024, as well as access to equine therapy and forest school provision between September 2023 until July 2024.

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Agreed action

41. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mrs X and pay her £250 in recognition of the distress, frustration, and uncertainty caused by the Council’s failure to carry out annual reviews, failure to issue Y’s EHC Plan from 2024 within the statutory timeframe, and for not issuing an amended final EHC Plan in March 2024 ahead of Y’s transition to post-16 education at college in September 2024. 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 Mrs X a total of £3900, to acknowledge the impact on Y’s development and education during the 2023/24 academic year resulting from the Council’s failure to pay a personal budget. This amount also reflects the additional effect of the Council’s failure to secure the alternative therapy provisions as specified in Y’s EHC Plan between September 2023 and July 2024.
3. Provide an action plan around how the Council intends to improve its processes around EHC Plans to ensure it holds annual reviews prior to issuing any amended plans and to ensure specialist provision outlined in EHC Plans are available and in place at the time plans are issued.
42. The Council agreed to provide us with evidence it has complied with the above actions.

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Decision

43. I found fault causing injustice. The Council agreed to our recommendations to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman