Summary: Ms X complained the Council delayed completing Y’s annual review and failed to provide a personal budget for Y’s wheelchair which is outlined as specialist provision in their Education, Health and Care (EHC) Plan. The Council was at fault. The Council panel’s decision not to provide a personal budget to maintain Y’s wheelchair was flawed. The Council also delayed amending Y’s EHC Plan following a 2024 annual review by nine months. The Council agreed to apologise and make a payment to Ms X to recognise the injustice caused to her and reimburse her for wheelchair maintenance expenditure. It also agreed to carry out another annual review of Y’s EHC Plan and reconsider how it intends to meet Y’s wheelchair provision going forward.

The complaint

1. Ms X complained about the Council’s handling of her child, Y’s Education, Health and Care (EHC) Plan and personal budget. Specifically, she complained the Council:
1. Significantly delayed issuing Y’s amended EHC Plan following an annual review in July 2024 by nearly one year.
2. Failed to review Y’s personal budget as part of the annual review or communicate the outcome causing a delay in providing funds for music provision.
3. Refused to provide a personal budget for Y’s wheelchair maintenance and repairs.
2. Ms X said the matter has caused her significant stress and uncertainty and financial loss maintaining the wheelchair herself.

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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 Ms X and the Council as well as relevant law, policy and guidance.
7. Ms 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

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.
9. 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 G: Any health provision required because of their learning difficulties or disabilities which results in the child or young person having SEN.
• Section H1: The social care provision which must be made for the child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.
• Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. (Where relevant this includes adult social care provision to meet eligible needs under the Care Act 2014).
• Section I: The name and/or type of educational placement. 
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

10. 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).

SEND Tribunal

11. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.

Annual Reviews

12. 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.

Personal Budget

13. A personal budget is the estimated amount of money which would be needed to cover the cost of making the special educational provision specified in the EHC Plan. Personal budgets are optional. If someone would like the council to identify a personal budget they can make a request for it to do so.
14. Someone can receive part of the personal budget as a direct payment, so that they could commission or arrange provision in the EHC Plan themselves. The direct payment must be enough to cover the cost of arranging the provision.
15. The council can refuse to make a personal budget or make a direct payment. This decision cannot be appealed to the Tribunal but the applicant can ask the council to formally review the decision.
16. The details of any personal budget should be set out in Section J of the EHC Plan. Details should include whether any direct payments are being made and what special educational provision the payments are being used for.
17. The personal budget should be reviewed as part of the annual review. This includes whether the council increases, decreases or ceases the personal budget.

Relevant caselaw

18. Caselaw states that a powered wheelchair was capable of being ‘special educational provision’ for the purposes of an EHC Plan. In this case the Upper Tribunal held that in general terms, the provision specified in Section F of an EHC Plan is predicated on the needs specified in section B of a Plan. The same case held that the maintenance of the wheelchair was special educational provision because without it the child was unable to access the education and training relevant to the development of their independence skills. (East Sussex CC v JC [2018] UKUT 81 (ACC).

What happened

19. Ms X has a child, Y who has disabilities which affect both their upper and lower body mobility. Y requires a wheelchair but also uses prosthetics to move around. Y also suffers from anxiety as a result of their disabilities. Y has an EHC Plan which names School 1, an independent school in section I. Y has attended School 1 since 2023.
20. Section F of Y’s EHC Plan outlines the specialist provision they are entitled to. Much of the provision is based around the support Y needs to access the school environment, the classroom and external areas. It also outlines provision such as one to one emotional literacy support, social/peer group clubs and occupational therapy and physiotherapy support.
21. Section F outlines that Y requires access to their wheelchair throughout the day when they cannot use prosthetics or when the environment is not safe enough to walk, including school trips.
22. At the end of 2023 the SEND tribunal heard an appeal from Ms X about the content of the EHC Plan. When the hearing took place, most of the matters had been agreed. The only matter remaining to be discussed was around Y’s wheelchair. The tribunal records show all parties agreed that the wheelchair was classed as special educational provision as it was outlined in section F.
23. Following the tribunal the Council agreed to provide a personal budget for Y. The personal budget agreement which is dated February 2024 outlines that there was a budget for social activities and for the purchase of a specialised wheelchair. The cost of the wheelchair was in excess of £16,000.
24. Y’s annual review was held at School 1 in July 2024. Records show that during the review process Ms X raised concerns that Y’s personal budget had run out in respect of the wheelchair. She said the wheelchair required ongoing maintenance for repairs and needed an extra battery. Ms X also asked for funds for music lessons which School 1 was at the time invoicing Ms X for directly. Y’s EHC Plan did not specifically include music lessons in section F but Ms X said they linked to Y’s social and emotional needs.
25. Ms X complained to the Council in November 2024. She complained she had not had a response to her personal budget concerns and requests and the Council had still not reviewed Y’s EHC Plan following the annual review meeting. The Council responded in December and said it had not received the annual review paperwork from School 1. It apologised for the delay. It said the Council’s independent Panel would need to consider her personal budget request.
26. Records show the Council received the annual review paperwork from School 1 in December 2024.
27. Ms X was unhappy with the Council’s complaint response and asked it to escalate the matter to stage two of the complaints procedure. The Council declined to provide a further response.
28. Ms X remained unhappy and complained to us.
29. Records show the Council issued Y’s draft EHC Plan in March 2025 and then a final Plan in July 2025, nearly one year after the annual review. The independent Panel discussed Ms X’s personal budget request in July 2025. It agreed to a personal budget for music lessons and other social activities. The Panel refused to provide anymore funding for Y’s wheelchair because it ‘is not education provision'. The Panel suggested funding could be met by the NHS wheelchair services.
30. Ms X told us that she has had to fund maintenance, repairs and new wheelchair equipment herself as without these Y could not safely use it. She said a vital attachment could only be sourced from abroad. She said School 1’s grounds were inaccessible for Y without a wheelchair and they could not participate in school trips without one. She said Y was now outgrowing the original wheelchair and would soon need a new one, however the Council had not engaged in conversation about this or arranged another annual review.

The Council’s response to us

31. The Council accepted it delayed completing the 2024 annual review. It did not receive the paperwork from School 1 until December 2024 and then a mixture of staff illness and vacancies caused the further delay in issuing the final Plan. It said it now has a new dedicated annual review hub to support and respond to reviews quickly.
32. The Council also accepted an oversight in not including Y’s personal budget in section J in either the 2024 or 2025 EHC Plan. It also accepted it failed to review the personal budget as part of the July 2024 annual review.

My findings

Annual reviews and personal budgets

33. Council’s can delegate responsibility for the annual review to schools but it retains overall responsibility to complete the review in line with statutory timescales. The review took place in July 2024 and the Council accepts it delayed chasing the paperwork and ultimately issuing the final Plan, which was over nine months late. That was fault and caused Ms X significant stress and uncertainty.
34. The Council should have ensured Y’s personal budget was reviewed at the July 2024 annual review. Ms X raised concerns about the budget running out and asked for a decision around an increase to fund music lessons. The failure to review the personal budget in July 2024 was fault. It caused significant delays in the Council taking the matter to panel and for decisions which caused Ms X distress and uncertainty. Music lessons are not included as provision in Y’s EHC Plan but it is likely the budget for these would have been approved earlier without the delay taking it to panel.
35. The Council has accepted it should have amended Y’s EHC Plan in 2024 following the tribunal decision to include details of the personal budget. It again failed to do so following the July 2025 Plan. This was fault and contributed to the delay taking it panel and meant the review process became disjointed.

Y’s wheelchair personal budget

36. The tribunal confirmed Y’s wheelchair is special educational provision and section F makes it clear that Y needs the wheelchair to access the school environment. Caselaw confirms this and includes that maintenance of the wheelchair can be special educational provision.
37. The Council’s panel decision about the personal budget was delayed. It then decided not to provide a personal budget for wheelchair costs because ‘it is not education provision’. This goes against the tribunal order, the wording in the EHC Plan and the case law. Therefore, the Panel’s decision is flawed because Y’s wheelchair is special educational provision. The Council’s failure to ensure Y’s wheelchair is maintained and functional therefore is fault. The consequence of this meant Ms X had to fund vital ongoing repairs and maintenance to ensure Y can access school and the provision in the EHC Plan.

Annual review 2025

38. Y’s last annual review was in July 2024 therefore the Council should have ensured a new one was held around July 2025. This is despite the Council only issuing the delayed amended Plan at that time, which was based on information from the 2024 review. The failure to hold the annual review on time was fault. It leaves uncertainty around whether Y’s Plan is fully up to date and has delayed an opportunity for Ms X to discuss the ongoing personal budget issues.

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Action

39. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Ms X and pay her £600 to acknowledge the distress and uncertainty caused by the Council’s delay in amending Y’s EHC Plan, the delay agreeing part of Y’s personal budget and for failing to ensure Y’s wheelchair, as outlined in the EHC Plan, was maintained and kept in working order. 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. Upon production of relevant invoices the Council should reimburse Ms X money she has paid for necessary maintenance and repairs of Y’s wheelchair between February 2024 and September 2025 to ensure it was kept in a useable state for Y to access school.
3. Arrange and hold an annual review of Y’s EHC Plan. The Council should ensure Y’s personal budget is reviewed and agreed and decide how it intends to meet Y’s wheelchair needs going forward and maintain any funded wheelchair which is in place. Any agreed personal budget should be outlined in Section J of the EHC Plan. The review should also make it clear to all officers that Y’s wheelchair and the maintenance of it is special educational provision to prevent further confusion going forward.
4. Remind all relevant officers that personal budgets for EHC Plans must be reviewed and agreed during the annual review process. Any agreed personal budget must also be included and outlined in Section J of the EHC Plan.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. I find fault causing injustice. The Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman