Summary: The Council failed to secure elements of the provision in Mrs X’s child, Y’s, Education, Health and Care (EHC) Plan between October 2024 and April 2025. This meant Y missed out on a term and a half of provision and caused Mrs X uncertainty and time and trouble as she chased the Council to secure the provision in Y’s Plan. The Council should 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, Y’s, Education Health and Care (EHC) Plan from October 2024 to July 2025. She says this has caused her distress, time and trouble and resulted in Y missing out on SEN provision they are 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.
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 Y’s EHC Plan

8. Part of Mrs X’s complaint concerns provision removed from Y’s EHC Plan in October 2024. I cannot investigate the provision included and not included in Y’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 Y’s lunch breaks

10. Mrs X also complained about a lack of funding to cover lunch breaks during Y’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. Y’s tutors confirmed to the Council the 24.5 hours a week of tuition specified in the EHC Plan included lunch break cover. Mrs X had an appeal right over whether the Council should have specified increased tuition hours to account for the tutor’s lunch breaks. 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.

What happened

19. Mrs X’s child Y has had an EHC Plan since 2018. The Plan specifies an Education Other than at School (EOTAS) package. The Council issued an amended EHC Plan for Y in October 2024. The Plan continued Y’s EOTAS provision with 24.5 hours of bespoke tutoring per week. These hours included 12 hours of physical activities outside the home. The Council’s personal budget approval form said all the tutors working with Y had confirmed lunch cover was included in their working hours.
20. Other 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.
• A sensory diet from frequent access to a range of sensory and physical activities based on advice from an Occupational Therapist.
• All staff working with Y to be trained in understanding autism and sensory strategies.
21. Mrs X complained to the Council later in October 2024. She said it was not providing the full provision in Y’s Plan. She said the Council had failed to fund:
• Weekly museum visits and therapeutic art classes.
• Occupational therapy (OT).
• Sensory activities for Y.
• Y’s course books.
• Autism and sensory training for staff
• 12 hours of physical activities per week.

Mrs X added that the Council was not funding staff during lunch breaks, leaving Y without supervision.

22. The Council responded to Mrs X’s complaint in November 2024. It accepted it had failed to fund Y’s museum visits, therapeutic art classes, educational and sensory resources. It also accepted it had failed to ensure autism training for staff working with Y. It said it would seek funding for this provision, contact Y’s tutors and an officer would contact Mrs X by December 2024. The Council said Y’s EHC Plan did not specify 12 hours of physical activities or access to OT. It also said it was under no duty to fund Y’s course books. It said all the invoices from Y’s tutors included payment for lunch breaks.
23. Mrs X remained unhappy and asked the Council to escalate her complaint. She said the Council had removed OT provision from Y’s Plan when it amended the Plan. She said the Plan did refer to physical activities and the Plan specified that Y was working toward taking exams, which required course books.
24. Mrs X appealed the provision removed from Y’s EHC Plan in December 2024.
25. The Council responded at stage two of its complaint procedure in January 2025. The response said it agreed with the stage one response regarding museum visits, therapeutic art classes and educational and sensory resources. However, the response then went on to say these items were not specified in Y’s EHC Plan. The Council said it had failed to cost these items in Y’s personal budget, which it would now do.
26. It said an OT had worked with Y’s tutors to ensure understanding was in place to support Y’s sensory needs so it was satisfied all staff had appropriate sensory training but would investigate any additional autism training needed. The Council added Mrs X had appealed the provision removed from Y’s EHC Plan. It said any books needed were part of Y’s educational resources and it was satisfied tutors’ paid hours covered lunch. Mrs X remained unhappy and complained to the Ombudsman.
27. In April 2025 the Council approved additional funding requested by Y’s tutors. This included funding for GCSE entry, course books, weekly trips, physical activities, and courses.
28. In its response to our enquiries the Council said it paid Y’s tutors directly for the provision in the EHC Plan. It said an OT had worked with Y’s tutors to ensure they could support Y’s sensory needs and be aware of potential triggers. It said it considered Y's tutors had received appropriate training.

My findings

Provision removed from Y’s EHC Plan

29. Part of Mrs X’s complaint is about the removal of provision such as occupational therapy from Y’s October 2024 EHC Plan. I have not investigated this part of the complaint for the reasons set out in paragraphs 5 to 8.

Provision in Y’s EHC Plan

30. The Council was under a duty to secure the provision set out in Y’s October 2024 EHC Plan. It accepted it failed to secure elements of this provision. This was fault. Funding for the provision should have been in place from October 2024.
31. In its complaint response the Council said it would seek funding for the 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.
32. The Council’s position on Y’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 Y 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 Y’s tutors. Similarly, the Council said it was under no duty to fund Y’s course books but then agreed to fund them in April 2025. Y’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.
33. The Council put funding in place for the entire provision in Y’s EHC Plan from April 2025 and secured this provision between April 2025 and July 2025. It also satisfied itself Y’s tutors did not require any further autism training. The Council was not at fault for this period.

Injustice to Y and Mrs X

34. Y received most of the provision in their EHC Plan between October 2024 and April 2025. However, the fault by the Council meant Y missed out on parts of the provision for a term and a half. I am satisfied Y had access to the 12 hours of physical activities during this time, but the lack of funding for visits, classes and activities lessened the impact of this provision.
35. 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 Y’s EHC Plan and tried to make sense of the Council’s position. Y 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

36. 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 £750 to recognise the impact of the loss of parts of Y’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 Y’s personal budget for the next academic year and how this meets the provision specified in Y’s current EHC Plan.
37. 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.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman