Summary: The Council delayed issuing Mrs X’s child, Z’s, amended Education, Health and Care (EHC) Plan and failed to secure elements of the provision in the Plan between May 2024 and April 2025. This meant Z missed two and a half terms of provision and caused Mrs X uncertainty and time and trouble as she chased the Council to secure the provision in Z’s Plan. The Council has agreed to apologise, make a payment to Mrs X and review how it satisfies itself it has secured the provision in EHC Plans.

The complaint

1. Mrs X complained the Council has failed to secure the provision in her child, Z’s, Education Health and Care (EHC) Plan from May 2024 to July 2025. She says this has caused her distress, time and trouble and resulted in Z missing out on SEN provision she is entitled to. Mrs X wants the Council to put the provision in place and compensate her for the missed provision.

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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. 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)
4. 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

5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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 any amendments to these elements of the Plan.
7. The courts have established that if someone has appealed to the SEND Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

Provision removed from Z’s EHC Plan

8. Part of Mrs X’s complaint concerns provision removed from Z’s EHC Plan in October 2024. I cannot investigate the provision included and not included in Z’s EHC Plan as Mrs X had a right of appeal to the SEND Tribunal which she has used.
9. I have investigated whether the Council secured the provision that remained in the October 2024 EHC Plan as this is separable from Mrs X’s appeal over the removed provision.

Funding of Z’s lunch breaks

10. Mrs X also complained about a lack of funding to cover lunch breaks during Z’s activities and tuition. Where there is a disagreement over the special educational provision to be secured through a personal budget, the child’s parent or young person can also appeal this to the SEND Tribunal. (SEND Code of Practice, Chapter 9, and Special Educational Needs (Personal Budgets) Regulations 2014).
11. Z’s May 2024 EHC Plan said the personal budget included additional funding for lunch breaks. This was paid to the tutor working with Z on the day as lunch often took place during activities and arranging separate lunch cover was not practical. The additional lunch cover was removed in the October 2024 EHC Plan as Z’s tutors confirmed this was included in the 24.5 hours a week agreed. The Council was entitled to remove the lunch cover element of the personal budget as Z’s tutors confirmed their hours included this payment. As there was an appeal right on this issue that it was reasonable for Mrs X to use, I have not investigated it.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. Mrs X and the Council have 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

The Law

Education, Health and Care (EHC) Plans

14. 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. 
15. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

Personal budgets

16. 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.
17. 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.
18. 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 or the young person.

Reviewing EHC Plans

19. 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) 
20. 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.
21. 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.

What happened

22. Mrs X’s child, Z, has had an EHC Plan since 2018. The Plan specifies an Education Other than at School (EOTAS) package. The Council issued an EHC Plan in May 2024. Provision specified in the Plan, which is relevant to this complaint, included:
• A weekly one-hour therapeutic art class
• Weekly one-hour educational trips and visits to museums and centres.
• Opportunities for sensory activities as recommended by an Occupational Therapist.
• Frequent opportunities for physical activity throughout the day
• A sensory diet from frequent access to planned sensory and physical activities based on advice from an Occupational Therapist (OT)
• All staff working with Z to be trained by an OT in understanding sensory programmes and strategies.
23. The Plan specified an EOTAS personal budget to deliver:
• 18 hours a week 1:1 tuition, both at home and in the community.
• 2 hours a week physical activities.
• 5 hours of educational visits.
• 5 hours of lunchtime cover fulfilled by the tutor in place on the day.
• 3.5 hours of transport to activities fulfilled by the tutor in place on the day.
24. The Council reviewed Z’s EHC Plan on 22 July 2024. The Council decided to amend Z’s EHC Plan. Mrs X complained to the Council in October 2024. She said the Council had missed the deadline to issue Z’s amended EHC Plan. She added the July review had been unnecessary, and she had not had an opportunity to meet with the Council to discuss a draft EHC Plan. She said since issuing the last EHC Plan in May 2024 the Council had failed to fund:
• Weekly museum visits and therapeutic art classes.
• Occupational therapy (OT) assessments and interventions.
• Sensory activities for Z.
• Y’s course books and educational resources.
• Autism and sensory training for staff
• 12 hours of physical activities per week.
• Outdoor activities with animals and nature.
25. The Council issued the amended final EHC Plan on 18 October 2024 and approved a new personal budget at the same time. The new plan continued Z’s EOTAS package with 24.5 hours of individual tuition per week and the same provision outlined in the previous plan. Z’s personal budget covered the 24.5 hours a week and said this included lunch cover from the staff working with Z during the day.
26. The Council responded to Mrs X’s complaint in November 2024. It accepted it had delayed issuing Z’s amended EHC Plan and apologised. It also accepted it had failed to fund Z’s museum visits, therapeutic art classes, and pre-planned sensory activities since May 2024. It also said it had failed to fund educational resources, sensory training for staff working with Z and outdoor activities during this time. It said it would seek funding for this provision, contact Z’s tutors and an officer would contact Mrs X by December 2024.
27. The Council did not uphold Mrs X’s complaint that it had failed to secure OT interventions, physical activities, course books, autism training for staff and lunch break cover. It said the OT had confirmed there was no need for direct interventions, so it had removed them from the Plan. It said Z’s tutors were incorporating physical activities where needed. It said it was under no duty to fund course books or autism training for staff as these were not specified in Z’s EHC Plan. It added that staff had confirmed their daily hours included lunch cover. Regarding the annual review, the Council said it was entitled to hold this, as it was within 12 months of Z’s last review.
28. Mrs X asked the Council to consider her complaint at stage two of its complaint process in December 2024. She said the Council still had not secured the provision in Z’s EHC Plan and had removed essential provision when it amended the EHC Plan. Mrs X appealed to the Tribunal over Z’s removed OT provision in late December 2024.
29. The Council responded to Mrs X’s stage two complaint in February 2025. It said it had already accepted it had failed to secure aspects of Z’s provision and was working to put these in place. It maintained its position on the elements of Mrs X’s complaint it had not upheld at stage one. It said Mrs X had appealed to the Tribunal over the removed provision. Mrs X remained unhappy and complained to the Ombudsman.
30. In April 2025 the Council approved extra funding requested by Z’s tutors. This included funding for course books, weekly trips, physical activities, and courses.

My findings

Provision removed from Z’s EHC Plan at review

31. Part of Mrs X’s complaint is about the Council’s decision review Z’s EHC Plan and the resulting removal of some provision from the amended October 2024 EHC Plan. Mrs X has appealed to the Tribunal, and I have not investigated this part of the complaint for the reasons set out in paragraphs 5 to 8.

EHC Plan delay following review

32. The Council accepted it delayed issuing Z’s EHC Plan following the July 2024 annual review. This was fault. The Council had a maximum of 12 weeks to issue the amended EHC Plan following the review on 22 July 2024. It issued the amended EHC Plan on 18 October 2024, so took 12 weeks and 4 days. The Council has accepted this was slightly outside the statutory timescale and apologised to Mrs X. I am satisfied with the Council’s actions.

Provision in Z’s EHC Plan

33. The Council was under a duty to secure the provision in both the May and October 2024 EHC Plans. It accepted it failed to secure elements of this provision. This was fault. Funding for the provision should have been in place from May 2024.
34. In its complaint response the Council said it would seek funding for this provision and contact Mrs X by December 2024. The Council failed to contact Mrs X as agreed and did not put funding in place for the missing provision until April 2025, five months after it said it would. This was also fault.
35. While the Council accepted it had failed to secure some of Z’s provision, it did not uphold Mrs X’s complaint about funding for Z’s physical activities, course books and autism training for staff. Neither the May nor October 2024 EHC Plans specified autism training and resources for staff working with Z and so the Council was not under a duty to provide this. The Council was not at fault.
36. The Council’s position on Z’s physical activities and course books is more confused. Mrs X argued while the personal budget funded 12 hours of tutor time to deliver physical activities, there was no funding for equipment or any specific activities for Z to do during this time. The Council did not uphold Mrs X’s complaint about this but then approved funding to pay for equipment and activities in April 2025 following a request from Z’s tutors. Similarly, the Council said it was under no duty to fund Z’s course books but then agreed to fund them in April 2025. Z’s EHC Plan remained unchanged during this time. On balance, I am satisfied the funding agreed in April 2025 should have been in place from October 2024 when Mrs X first alerted the Council to the fact the current personal budget was not enough. The Council was at fault.
37. The Council put funding in place for the entire provision in Z’s EHC Plan from April 2025 and secured this provision between April 2025 and July 2025. The Council was not at fault for this period.

Injustice to Mrs X and Z

38. Z received most of the provision in their EHC Plan between May 2024 and April 2025. However, the fault by the Council meant Z missed parts of the provision for two and a half terms. I am satisfied Z had access to the required hours of physical activities during this time, but the lack of funding for visits and classes from May 2024 and activities and course books from October 2024 lessened the impact of this provision.
39. The confusion and delay in reaching this point also caused Mrs X prolonged uncertainty, time and trouble as she chased the Council to secure the provision in Z’s EHC Plan and tried to make sense of the Council’s position. Z is now into a new academic year, and Mrs X reports they continue to face difficulties securing the provision set out in their EHC Plan.

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Action

40. Within one month of the final decision the Council has agreed to:
1. Apologise to Mrs X for the impact of the failings identified. 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 Mrs X £1000 to recognise the impact of the loss of parts of Z’s SEN provision.
3. Pay Mrs X £200 to recognise the uncertainty, time and trouble caused by the Council’s confused responses to Mrs X’s complaint and delay in putting funding in place after accepting fault.
4. Write to Mrs X confirming Z’s personal budget for the next academic year and how this meets the provision specified in Z’s current EHC Plan.
41. Within three months of the final the decision the Council has agreed to review how it satisfies itself it has secured the entire provision in an EHC Plan when delivered by direct payments to tutors and make any changes it feels necessary to meet its statutory duties.
42. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman