Summary: The complainant’s father (Mr X) said the Council failed to deliver all special educational provision included in his daughter’s (Y) Education Health and Care Plan and to comply with the Annual review statutory timescales. Mr X also complained about the Council’s Personal budget process and its inadequate communication. We found fault with the Council’s failure to deliver the full Education Otherwise than at School package included in Section F of Y’s plan and to include details of Y’s Personal budget in her plan. We also found fault in the delays to review Y’s Education Health and Care Plan in 2024. The Council’s fault caused injustice to Y and Mr X. The Council has agreed to apologise and make symbolic payments for the loss of education and distress. The Council has also agreed to arrange Multi-Disciplinary team meetings in accordance with Y’s plan.

The complaint

1. Mr X says the Council failed to:
• deliver all special educational provision included in Y’s Education, Health and Care (EHC) Plan;
• arrange and complete review of Y’s EHC Plan in 2024 within the statutory timescales;
• comply with its Personal budget duties;
• adequately communicate with him.
2. Mr X says the Council’s failings meant that Y lost provision, including counselling.

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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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. 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

8. I have investigated the way the Council reviewed Y’s EHC Plan in May 2024. I have also investigated the way the Council responded to Mr X’s request for a Personal Budget for Y and whether it delivered all special educational provision included in Y’s EHC Plan from June 2024. The earlier period was covered by our previous investigation.
9. I have not investigated anything that happened after the Council’s stage two response to Mr X’s complaint in March 2025. This is because, as outlined in paragraph four of this decision, the Council should have an opportunity to respond to any concerns before we look at them. I have, however, considered whether any of the Council’s failings from May 2024 to March 2025 caused ongoing injustice to Y and Mr X up until mid-May 2025, when the Council reviewed Y’s EHC Plan.

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How I considered this complaint

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

Legislative and administrative framework

Delivery of special educational provision

12. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act 42)
13. A council may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school. (Children and Families Act 2014 section 61(1)). We call it Education Otherwise than at School (EOTAS).

Annual review

14. 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. (Special Educational Needs and Disability Regulations 2014 regulation 20(10) and SEN Code paragraph 9.176) 
15. 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. (Special Educational Needs and Disability Regulations 2014 regulation 22(2) 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.

Personal budget

16. A Personal budget is money identified by a council to deliver provision set out in an EHC Plan where the parent or young person is involved in securing the provision.
17. Councils must provide parents and young children with information on:
• the provision for which a Personal budget may be available;
• details of organisations that provide advice and assistance on Personal budgets;
• the conditions which must be met before direct payments may be made;

(Special Educational Needs (Personal budgets) Regulations 2014 regulation 3)

18. Councils may only make direct payments for special educational provision specified in an EHC Plan and not for funding a place at a school or post-16 institution. (Special Educational Needs (Personal budgets) Regulations 2014 regulation 6(2))
19. Where any special educational provision is to be secured by a direct payment, a council must set out in Section J of an EHC Plan which needs and outcomes will be met by that direct payment. (Special Educational Needs and Disability Regulations 2014 regulation 12 (1)(j))
20. Where a council refuses to make direct payment it must:
• inform the child’s parents in writing of its decision, providing the reasons and informing of the right to request a review;
• carry out a review of its decision, if requested to do so, considering any representations made by the child’s parent;
• inform the child’s parent in writing of the outcome of the review, giving reasons.

(Special Educational Needs (Personal budgets) Regulations 2014 regulation 7)

What happened

Background

21. The Council issued Y’s post-Tribunal EHC Plan at the end of January 2023. The EHC Plan got amended in March 2023. The Council agreed to deliver Y’s education through EOTAS. The plan included provision for:
• 25 hours of individual tuition per week consisting of 15 hours per week of subject tuition with qualified teachers and ten hours per week with a learning support assistant (LSA);
• Multi-Disciplinary Team (MDT) approach with regular input from all professionals involved with Y with meetings once a term for two hours.
22. In January 2025 we issued a decision for Mr X’s previous complaint about Y’s education. We found fault with the Council for its failure to deliver the full EOTAS package to Y and for its failings when responding to Mr X’s request for a Personal budget for Y. We also found fault in the way the Council dealt with Mr X’s complaint. We said: “I do not find fault in the Council’s refusal to fund instrumental lessons for Y through direct payments. The Council explained its reasons in writing and reviewed its decision. The Council followed the process we would expect.”

From May 2024

23. From January 2024 Mr X kept asking the Council to review Y’s EHC Plan. At the beginning of May 2024 the Council held a meeting to review Y’s EHC Plan. During the meeting Mr X asked for a Personal budget for Y to fund her instrumental lessons and to update her software. Y’s parents also asked for a LSA to be arranged and MDT meetings put in place.
24. In mid-June 2024 the Council agreed to fund costs of Y’s software update. Y’s case officer (the SEND Officer) told Mr X the Council agreed a Personal budget for this provision and asked him to comment on the proposed amendments to Y’s EHC Plan.
25. The Council decided to amend Y’s EHC Plan by adding the provision of counselling to address Y’s specific needs and issued her final amended plan in mid-September 2024. Throughout August and early September 2024 Mr X kept asking the SEND Officer to finalise Y’s EHC Plan.
26. At the beginning of October 2024 Mr X complained to the Council. The Council responded two and a half weeks later. It upheld Mr X’s complaint about delays with Annual review of Y’s EHC Plan and its failure to include details of Y’s Personal budget in Section J of her plan. It did not accept its response to Mr X’s request for a Personal budget was delayed as there were no statutory timescales for this service. The Council clarified it would not fund Y’s instrumental lessons as they were not included in Section F of her EHC Plan. The LSA provision was only relevant, it said, if Y were to attend educational placement. The Council rejected Mr X’s suggestion it should hold a separate Personal budget policy for children and young people with EOTAS and that its communication with Mr X was inadequate.
27. In the third week of October 2024 Mr X contacted a counselling service (the Service) about the possibility to deliver provision to Y. By the end of November 2024 an initial meeting took place and Mr X received from the Service costs for counselling sessions for Y and Y’s family.
28. In the second week of December the SEND Officer told Mr X about the Council’s difficulties with finding the right LSA for Y. The SEND Officer suggested Mr X getting involved in finding the right provider, which the Council would either fund directly or via a Personal budget. The SEND Officer suggested a few local groups which Y could consider for support.
29. In mid-December 2024 the Council identified an organisation (the Agency) which could offer a LSA for Y and started making arrangements.
30. In mid-January 2025 a LSA found by the Council held the first meeting with Y. She started delivering her sessions a week later. The sessions lasted until mid-March 2025 and stopped due to Mr X’s concerns about the LSA.
31. Several times during January 2025 Mr X contacted the Council asking for its stage two response to his complaint. At the beginning of February 2025 Mr X complained to us.
32. In the second week of March 2025 Mr X sent the quote received from the Service for counselling sessions to the SEND Officer. He also confirmed the Agency was trying to find an alternative LSA for Y.
33. In mid-March 2025 the Council sent its stage two response to Mr X.
34. The Council held a meeting to review Y’s EHC Plan in mid-May 2025. Its notes suggested the EOTAS was going well with Y achieving some good General Certificate of Secondary Education (GCSE) grades and progressing academically.
35. In July and August 2025 Mr X liaised with the SEND Officer about the funding for counselling sessions.

Analysis

Delivery of special educational provision

36. The Council failed to arrange MDT meetings for Y. There is no evidence the Council tried to organise this provision, which would ensure coordination of Y’s EOTAS package and liaison between professionals involved in supporting Y.
37. The Council also delayed finding LSA for Y. The provision of ten hours of the LSA support was in Y’s EHC Plan from the beginning of 2023 but the Council only started actively looking for this provision in late autumn 2024. The Council found LSA to support Y from mid-January 2025. Due to the circumstances outside the Council’s control this support could not continue beyond mid-March 2025 and the Council was looking for an alternative provider of the LSA services.
38. Y’s EHC Plan issued in September 2024 included counselling sessions to be delivered to Y. Mr X liaised with the Service checking their fees from the end of October 2024. Although there were delays with arranging this provision for Y, the reasons for some of the delays were not directly attributable to the Council. This applies to Mr X’s late notification of the Service’s fees as well as the confusion about whether counselling sessions funded by the Council should include Y’s family.
39. The Council’s failure or delay in arranging delivery of all special educational provision included in Y’s EHC Plan is fault.
40. This fault caused injustice to Y as for many months she was not getting support to develop her independence skills. The lack of counselling sessions meant Y’s mental health difficulties were not fully addressed, which have likely impacted her ability to engage with education. There was no oversight and coordination of the whole EOTAS package through the MDT meetings.
41. The Council’s fault caused also injustice to Mr X as he spent much time contacting the SEND officer about Y’s provision. He was getting increasingly frustrated at the Council’s failure to act.

Annual review

42. As pointed out in paragraph 14 councils have 12 months to review an EHC Plan from its issuing or from the date of the last review. Y’s EHC Plan issued at the end of January 2023 should have been reviewed by the end of January 2024. The Council delayed arranging a meeting to review Y’s EHC Plan by over three months.
43. Following a meeting to review Y’s EHC Plan at the beginning of May 2024 the Council decided to amend Y’s plan. It had 12 weeks to issue a final amended EHC Plan, so should have done it by the end of July 2024. The Council issued Y’s amended EHC Plan in mid-September 2024.
44. The Council’s overall delay of five months in completing a review of Y’s EHC Plan is fault. It caused injustice to Y as if not for the delay the Council is likely to have started arranging Y’s counselling sessions earlier in the year, rather than in late autumn 2024. The Council’s delay in finalising Y’s EHC Plan caused injustice to Mr X as he spent much time asking the Council to review Y’s EHC Plan and then prompting the Council to issue Y’s final EHC Plan.

Personal budget

45. I did not find fault in the way the Council dealt with Mr X’s Personal budget request. During the review of Y’s EHC Plan in May 2024 Mr X asked for a Personal budget for software license and instrumental lessons. Within a few weeks from the review meeting, after receiving from Mr X details of the costs, the Council agreed to allocate a Personal budget for Y’s software. The timescales for agreeing to fund the cost of the software licence through direct payments were acceptable.
46. In our previous investigation we did not find fault with the Council’s process of refusing a Personal budget for Y’s instrumental lessons. We would, therefore, not criticise the Council for not repeating the process again in the circumstances where there were no changes to Y’s EHC Plan which would justify a new request for the same provision.
47. In its complaint response the Council accepted it had failed to include details of Y’s Personal budget in Section J of her EHC Plan. This is fault but it did not cause injustice to Y as she received direct payment for software licence updates despite the lack of details in her EHC Plan. This fault did not cause injustice to Mr X as from the SEND Officer’s correspondence it was clear how much funding the Council would provide for Y’s software updates.
48. There is no requirement for councils to hold a separate policy on Personal budgets for children and young people receiving EOTAS. I did not find fault with the Council for not having such policy.

Communication

49. Majority of the Council’s failings with communication happened when Mr X was asking for a review of Y’s EHC Plan and chasing issuing Y’s final amended EHC Plan. Some of Mr X’s correspondence was left unanswered and the Council was not upholding its commitments. This is fault. It caused injustice to Mr X which was considered as part of his injustice caused by the Council’s failings within the Annual review process.
50. The Council’s stage one complaint response contained misleading statement about the LSA provision. It is clear this provision was agreed for Y as part of her EOTAS package, rather than only if she were to be educated at school. The Council apologised and corrected this statement in its stage two complaint response, which is what we would expect.

Service improvement

51. The Council is aware of the need to improve its SEND services. The Council has the SEND Priority Action Plan and SEND Strategy in place. Improvement of the process, timeliness, quality and oversight of EHC Plans and Annual reviews is identified as one of the areas for priority action. The Scrutiny Committee monitors the Council’s progress in improving its SEND services.

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Action

52. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mr X and Y for the injustice caused to them by the faults identified. 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;
• pay Y £2,800 to recognise the injustice caused to her by non-delivery of the whole EOTAS package included in Section F of her EHC Plan for three terms from the beginning of June 2024 until mid-May 2025;
• pay £150 to Y and £350 to Mr X to recognise their distress caused by the Council’s failings.

The total the Council will pay is £2,950 to Y and £350 to Mr X.

The Council will provide the evidence that this has happened.

53. To remedy the injustice caused by the Council’s failure to arrange Multi-Disciplinary Team meetings for Y, we recommend the Council within four weeks of the final decision provide us with the evidence this provision is in place.

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Decision

54. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman