Summary: Ms X complained the Council failed to ensure her child, Y had funding in place for social care provision outlined in their Education, Health and Care (EHC) Plan. The Council was at fault. It failed to provide a personal budget for part of Y’s social care provision and failed to provide any help for Ms X in sourcing a support worker for Y when she struggled to find one herself. It leaves uncertainty around whether more could have been done to ensure the support was in place. The Council agreed to apologise to Ms X and make a payment to acknowledge the injustice caused. It also agreed to review the social care provision to ensure a support worker is in place without further delay.

The complaint

1. Ms X complained the Council failed to ensure her child, Y received social care provision as outlined in their Education, Health and Care (EHC) Plan. Ms X says Y is entitled to funding for a support worker to access the community once a week but the Council has not put this in place or helped her find the worker.
2. Ms X says Y has not received this provision for the last two years which has impacted on their development and caused her distress and uncertainty.

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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. 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.
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 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.

EOTAS (Education Otherwise Than At School)

10. Where it is agreed that a school or college is not appropriate for a child or young person with an EHC Plan the council can arrange for them to receive the specialist provision they require somewhere else. This will be set out in the EHC Plan and the council remains responsible for securing and funding that provision. This is known as EOTAS or EOTIS.

Social care in EHC Plans

11. Where the council decides it is necessary for support to be provided under section 2 of the Chronically Sick and Disabled Persons Act 1970 it must include this in Section H1 of the EHC Plan. Support provided by Early Help or under section 17 of the Children Act 1989 (child in need) should be included in Section H2 of the EHC Plan.
12. If a parent disagrees with the social care support set out in the EHC Plan they can make a complaint to the council. Alternatively, if they are going to appeal to the Tribunal about other parts of the EHC Plan, they can ask the Tribunal to consider any disagreement. If the Tribunal makes a finding on the social care elements, it is non-binding. (It is not a statutory right of appeal).

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 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.
16. The SEND Code of Practice states a council’s duties to secure or arrange the provision specified in EHC Plans are discharged through a direct payment only when the provision has been acquired for, or on behalf of the child’s parent or the young person.

What happened

17. Ms X has a child, Y. Y has special educational needs including a diagnosis of autism and suffers from anxiety. Y has an EHC Plan and following a SEND tribunal order in June 2023 it was amended to outline Y’s education as EOTAS. The tribunal also recommended the Council make changes to section H2 of Y’s EHC Plan. Following the order the amended EHC Plan showed the following in section H:
• Support worker for 52 hours a year to be used flexibly across term and school holidays as and when required by Y
• Support worker for Y to attend one community activity a week (without Ms X).

The Plan said this provision would be provided by Social Care via direct payments.

18. Records show in August 2023 Ms X asked the Council to provide a support worker for Y rather than providing it via direct payments. The Council told Ms X it did not have access to support workers. Direct payments for 52 hours were in place using Company 1 (a direct payments administrator) but the Council told Ms X she would need to identify and employ a support worker herself.
19. Y’s annual review was held in February 2024. The records of this refer to Ms X making a complaint about the funding outlined in section J of the Plan. Records show Ms X formally complained in June 2024 about the funding. She said the Council had put funding in place for the support worker for the 52 hours but she was having major difficulties recruiting anyone. She said no funding was in place for the weekly community activity. Ms X asked the Council for three hours funding per week for the community activity or for it to provide a support worker.
20. Following the annual review the Council issued Y’s amended EHC Plan in May 2024 which outlined the same provision as above in Section H. It named a post-16 provider for Y in Section I which Ms X appealed.
21. The Council responded to Ms X’s complaint at stage one of the complaints procedure in July 2024. It recognised the difficulties Ms X was having sourcing a support worker. It said Company 1 confirmed the direct payments for 52 hours a year remain available should she find one. It said it was not directed by the SEND tribunal to fund community activities.
22. Ms X escalated her complaint to the Council in August 2024. She said she understood the actual community activity was for her to fund however she said funds were not in place for the support worker. Ms X said she needed both the 52 hours funding (which was in place) and the funding for the community activity. Ms X asked again for further funding to make it easier to find a support worker.
23. Record show Company 1contacted the Council at the end of August 2024 stating it was closing Y’s case as Ms X had not managed to find a support worker.
24. The Council did not provide a stage two complaint response until February 2025. It apologised for the delay in responding. The response said the Council acknowledged the challenges Ms X had sourcing a support worker for 52 hours. It said that direct payment was agreed and should be used for Y to access a community activity.
25. Ms X remained unhappy and complained to us. Ms X told us that she recognised funding for the 52 hours was in place but she was unable to recruit anyone at minimum wage for one hour a week. She said the Council refused to provide the additional funding for attending the community activity each week which made it impossible to attract a worker. Ms X said she wanted either the Council to provide a support worker or provide her with a personal budget for extra hours each week to attract a support worker.
26. The Council told us that the direct payment for the provision was still available for Y if Ms X could identify a support worker.
27. The Council issued a further amended EHC Plan in March 2025 just before Y turned 18 years of age. The Plan included the same social care provision in Section H. The Plan notes Y’s next annual will take place in early November 2025

My findings

28. Y’s EHC Plan in Section H shows, on balance, two separate provisions. The Council’s responses on this point have been inconsistent. It told us a direct payment was available but its stage two response said the agreed direct payment (for 52 hours) should be used for Y to access a community activity. Having considered the wording in the Plan, my view is that one is provision for a support worker for 52 hours to be used flexibly the other is for a support worker to take Y to a community activity one day a week. Both have different functions and therefore are different. This means funding should be agreed and in place to pay for both, whether that be the same support worker or two different ones. The Council only provided a personal budget for the 52 hours of support and there is no evidence additional funding for the time to take Y to a community activity has ever been in place. That was fault.
29. Ms X however had not been able to source a support worker since the provision was agreed on the EHC Plan in 2023. The Council was aware in August 2023 that Ms X wanted the Council to help find a support worker rather than paying her a personal budget. A personal budget is optional and at this point the Council should have considered whether it was appropriate to continue having the budget/direct payments in place. Not doing so was fault.
30. The Council was also aware from at least early 2024 and when she complained that Ms X had so far been unable to source a support worker. The provision in section H is agreed social care support and is included in an EHC Plan, therefore it is for the Council to ensure that provision is in place in order to discharge its duty. We would expect the Council to step in and provide help finding a support worker when Ms X raised her concerns. Not doing so was fault.
31. The Council’s complaint handling was poor. Its response about the social care provision was inconsistent and it took eight months to provide a stage two response. That was fault and the delay caused Ms X frustration.
32. Ms X and Y have not been able to use the social care provision for two years due to a lack of support worker in place. Given the difficulty Ms X has had sourcing a support worker I cannot say whether the additional community activity funding or the Council stepping in to help would have made any difference. It does leave uncertainty around whether the extra funding or Council help might have made it easier to recruit someone.

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Action

33. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Ms X and pay her £700 for the distress and uncertainty caused by the Council’s failure to ensure funding was in place for part of Y’s social care provision in their EHC Plan, for failing to provide additional help and support to source a support worker and its poor complaint handling. 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. As Y is now an adult the Council should review the provision in Section H of Y’s EHC Plan as part of the November 2025 annual review. The review should consider how it intends to ensure Y’s social care provision is in place going forward and how it is funded. If, following the annual review the provision for a support worker remains in place the Council should ensure there are sufficient funds to pay for a support worker for both the 52 hours and the community activity each week. If consent is given it should support Y in sourcing a support worker.
3. Remind relevant officers via team meetings or staff briefings that personal budgets in Education, Health and Care (EHC) Plans are optional. Where parents/carers express concerns with the Council that they no longer want a personal budget, then the Council should instead take responsibility to ensure the relevant provision is put in place.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. I found 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