Summary: Ms X uses a personal budget to pay for her child’s special educational needs provision in school. The Council failed to provide Ms X with a right of review when it decided to end her child’s personal budget. The Council also failed to ensure Ms X was sent a direct payment agreement in advance, setting out how the budget should be used. Ms X’s child did not miss out on any provision because of these faults. However the Council’s actions have caused Ms X frustration and uncertainty. To recognise the injustice caused, the Council has agreed to apologise to Ms X and take action to improve its services.

The complaint

1. Ms X complained the Council:
1. failed to properly fund her child, Z’s, special educational needs provision through their personal budget, leaving her to pay the shortfall;
2. wrongly decided to end her child’s personal budget which funded Z’s Applied Behaviour Analysis (ABA) tutors, as well as other provision;
3. replaced the personal budget with a funding system which did not cover the cost of the ABA tutors, leading her child to miss out on this provision; and
4. failed to communicate with her properly about these changes.
2. Ms X said because of the Council’s actions she had to pay for her child’s ABA tuition privately, avoidably incurred solicitors’ fees by appealing to a tribunal and both she and her child have been caused significant distress.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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, or the SEND Tribunal, in this decision statement.
6. The courts have established that if someone has appealed to the 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)
7. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the Tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 
8. When considering complaints, if there is a conflict of evidence, 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.
9. 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(i), as amended)
10. 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

11. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
12. The law also 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)
13. Ms X complained her child’s personal budget has not been sufficient to fund the provision needed since 2022. I have not investigated events this far back because there are no good reasons that Ms X did not bring this complaint to the Ombudsman sooner.
14. Ms X complained about the Council’s decision in September 2024 to end her personal budget. Therefore my investigation begins from this date and ends with the Council’s final complaint response dated 6 January 2025.
15. Ms X has asked us to consider a later complaint she made about events from January 2025 onwards. The Council declined to investigate this later complaint until this Ombudsman investigation had concluded, as the two complaints were linked.
16. Now the final decision has been issued on this case, the Council can investigate Ms X’s later complaint covering events from early January 2025 onwards. Once Ms X has a final complaint response regarding these matters, she can contact the Ombudsman and ask us to consider them as a new complaint.

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How I considered this complaint

17. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
18. I considered all comments made by Ms X and the Council on a draft decision, before making a final decision.

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What I found

Law and guidance

Education, Health and Care Plans (EHC Plans)

19. A young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them.
20. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.
21. 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)  

Annual reviews

22. 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.
23. 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. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

Personal budgets and direct payments

24. A personal budget is a notional amount of money that would be needed to cover the cost of making the provision specified in someone’s EHC Plan. There are four ways in which a child’s parent or the young person can be involved in securing the provision:
• Direct payments – where individuals receive the cash to contract, purchase and manage services themselves
• An arrangement – where the council, school or college holds the funds and commissions the support in the Plan (these are sometimes called notional budgets)
• Third party arrangements – where direct payments are paid to and managed by an individual or organisation on behalf of the child’s parent or young person
• A combination of the above. (9.101, SEND Code of Practice)
25. The final allocation of funding must be sufficient to secure the agreed provision specified in the EHC Plan. This information should be included in Section J of the EHC Plan and councils must also provide written notice of the conditions for receipt of direct payments to the child’s parent or young person. They should then confirm their decision and agreement of the budget. (9.102, 9.103 SEND Code of Practice)
26. A council can stop making direct payments for several reasons. This includes when it becomes aware that the making of direct payments is no longer compatible with the council’s efficient use of its resources. However if a council decides to stop making direct payments, the council must first give notice in writing to the recipient setting out the reasons for its decision. The Council must then reconsider its decision where requested to do so by the recipient. (The Special Educational Needs, Personal Budgets, Regulations 2014)
27. 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 appeal this to the SEND Tribunal. (SEND Code of Practice, Chapter 9, and Special Educational Needs (Personal Budgets) Regulations 2014)

What happened

Background

28. Ms X’s child, Z, has special educational needs and has an EHC Plan. At the school Z attended, they received specialist ABA tutoring as well as some speech and language therapy (SALT) and occupational therapy (OT). This provision was set out in Section F of Z’s EHC Plan. The Council allocated Z a personal budget for this provision and the provision was paid for and arranged by Ms X using direct payments.
29. Section J of Z’s EHC Plan stated the amount the Council would pay for this provision, including the maximum hourly rate for the ABA tutors that the personal budget would cover, which was £25 an hour.
30. The Plan said, in Section F, these tutors should be trained in ABA with input from another qualified specialist. It also set out certain skills they should be trained in. Ms X received just over £42,000 each year in direct payments to cover the cost of Z’s ABA tuition, SALT and OT.
31. For some time before this complaint period began, Ms X had been employing ABA tutors at higher than the hourly rate set out in the personal budget. Ms X said these tutors worked well with Z and wanted them to continue. These same tutors were in place throughout the period I have investigated below.

Key events

32. The Council carried out an annual review of Z’s EHC Plan in 2024 and everyone agreed the provision was going well. The Council issued a decision not to amend Z’s EHC Plan on 20 August 2024 and informed Ms X of her appeal rights if she disagreed. Ms X agreed with the decision and so did not appeal at that time.
33. Later in August, Ms X wrote to the Council asking for an increase in Z’s personal budget. She said due to employing ABA tutors at a higher hourly rate, the personal budget was in overspend and she had been funding the shortfall herself. Ms X said it was not possible to find suitable ABA tutors at the hourly rate the Council had budgeted for.
34. The Council considered her request for an increase in the personal budget of just over £18,000 (bringing the total to £67,812 per year) at its high cost panel on 9 September 2024. The panel decided it could find suitable ABA tutors within the agreed personal budget and so made the decision to end Ms X’s personal budget and transfer the funding to the school to manage instead.
35. The Council decided that teaching assistants could be specially trained in ABA, with input from a qualified specialist and this would deliver the provision for less money than the ABA tutors Ms X had been paying. The Council considered whether doing this would meet the requirements of the Plan and concluded it did. After meeting with the Council, the school agreed to take over the funding and deliver the provision in this way.
36. Ms X disagreed and sent the Council several emails where she raised concerns and asked for the Council to change its decision. Ms X asked the Council to provide her with copies of any agreements she had signed in relation to the personal budget. The Council responded and accepted it had not sent her a direct payment agreement to sign.
37. Initially the Council expected to be able to transfer the funding to the school to manage from October 2024. However the existing personal budget, which was due to last until December 2024 had already been spent. The Council therefore funded Ms X’s preferred ABA tutors to continue in their posts until the end of term in December 2024.
38. After that time, the school told Ms X that teaching assistants who had received specialist training and who would have input from a qualified specialist, would start to deliver Z’s ABA provision from the start of the new term in January 2025.
39. Y did not return to the school in January 2025. Ms X said the loss of the former tutors had caused Z significant anxiety and Z felt unable to return.
40. Ms X had by this time appealed the Council’s August 2024 decision not to amend Z’s Plan, to the SEND Tribunal. Among other changes, she sought to change the named school in Section I and wanted more detail to be included in Section F about the qualification level required by Z’s ABA tutors.
41. Ms X also raised a formal complaint with the Council. She said the Council:
• Wrongly decided to end Z’s personal budget and she did not agree the school would be able to administer it;
• Failed to deal with the shortfall in funding that had been an issue for several years and which had now left her in debt; and
• Said the Council’s communication with her about these issues had been poor.
42. The Council responded at stage one of its complaints process and did not uphold her complaints. It then declined to investigate her complaint at stage two when Ms X requested this. The Council said by then, the SEND Tribunal was considering the issues she had complained of and this was the appropriate body to resolve this disagreement.
43. Ms X was unhappy with the Council’s response and complained to the Ombudsman in February 2025.
44. In July 2025, following Ms X’s appeal, the Council and Ms X came to an agreement, via consent order, that the EHC Plan should be amended. The Council increased the experience and qualification level required by the ABA tutors in Section F of the amended Plan.

My findings

Personal budget (complaints 1a – 1c)

45. Councils are entitled to end a personal budget for several reasons. This includes when a personal budget is no longer compatible with the efficient use of its resources. Due to the overspend in Ms X’s personal budget, the Council decided in September 2024 to change how this provision was funded and delivered.
46. It is not for the Ombudsman to decide what special educational provision best meets a child’s needs. This is a decision for the Council and the SEND Tribunal. However we can look at whether councils have met their duty to ensure children receive the provision in Section F of their EHC Plans.
47. In this case, there was nothing in Z’s EHC Plan which said the provision could not be delivered by specially trained teaching assistants, in the way the Council proposed. The Council obtained the agreement of the school before the changes took place and there was no loss of provision during the period I have investigated (September 2024 to early January 2025). There was no fault in how the Council reached its decision and therefore we cannot question it. The Council was not at fault.
48. However the Council did not follow all relevant guidance and regulations in how it initially agreed the personal budget with Ms X, or in how it communicated with Ms X and reviewed her concerns. I have considered this in more detail below.

Direct payment agreement

49. The Code says if a parent is using a personal budget to arrange special educational needs provision for their child, they must be sent the conditions for the direct payments in writing and they should confirm their agreement. The Council has accepted that it did not send Ms X a direct payment agreement or ensure an agreement was signed. This was fault by the Council. However the personal injustice arising from this fault is difficult to determine.
50. This is because the EHC Plan clearly set out in Section J the hourly rate for ABA tutors allowed for by the personal budget. Email records also show Ms X was aware of the hourly rate. However Ms X still did not employ tutors within the budget. So there is a possibility that even if Ms X had signed a direct payment agreement, she would not have employed professionals within the given budget. Alternatively, it is also possible that the direct payment agreement may have set out more clearly the potential consequences of not adhering to the personal budget and so if not for the fault, Ms X may have taken different decisions. This fault has therefore caused Ms X uncertainty.
51. This fault regarding the lack of a direct payment agreement occurred before September 2024 but I have exercised discretion to investigate this single, earlier issue. This is because of the likelihood of this issue causing injustice to others in future if changes are not made by the Council. I have made a service improvement recommendation to prevent recurrence of the fault.

Review of personal budget decision (complaint 1d)

52. The SEND Regulations are clear that councils must outline in writing the reasons for ending a personal budget and must reconsider the decision where requested to do so.
53. The Council was correct to advise Ms X that if she sought changes to the special educational needs provision that the personal budget related to, this would be a matter for the SEND Tribunal. However the amount of personal budget and whether to end the budget, was a matter Ms X could not appeal to the Tribunal and so her right to a review was important.
54. The Council did not consider Ms X’s requests to change its decision as a review or provide a review response. This was fault. This fault caused avoidable frustration to Ms X, which is evident from her emails to the Council between September and December 2024. These show Ms X was unaware why changes had been made and did not feel she had the opportunity to have her views considered.
55. However I cannot say, if Ms X had been given the opportunity of review, the Council would have changed its decision to end the personal budget and changed how it delivered Z’s ABA tuition. On the one hand, the Council received Ms X’s communications opposing the decision and did not conclude this warranted a change. On the other, after Ms X appealed to the SEND Tribunal and following a consent order between both parties in July 2025, the Council decided it would make changes to the minimum experience and qualification level of the ABA tutors in Section F.
56. As there are too many uncertainties here, I cannot say even on balance what would have happened if not for the fault. Instead the Council’s failure to offer Ms X a right of review of its personal budget decision in September 2024 has caused her avoidable uncertainty and frustration.

Claimed injustice

57. Ms X said because of the Council’s actions in this case, she has been left with arrears because she paid for ABA tuition herself when the personal budget ran out. There is no evidence, within the period I have investigated, that Ms X’s arrears were due to fault by the Council and so I have not recommended a financial remedy in relation to these debts.
58. Ms X also said she incurred avoidable solicitors’ fees by appealing to the SEND Tribunal. The SEND Tribunal has the power to consider whether to award costs and the consent order shows that it decided not to do this. We cannot investigate matters if in doing so we overlap with the role of the tribunal on something which the tribunal could have resolved. I therefore cannot investigate or come to a finding on whether Ms X should have been awarded legal costs.

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Action

59. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X for the uncertainty and frustration she has been caused by the Council’s faults in this case.
60. Within three months of the date of the final decision, the Council has agreed to:
1. Review all current cases where parents, carers or young people have been provided with direct payments to arrange special educational needs provision and ensure they have received direct payment agreements, in line with the requirements of the Code;
2. Demonstrate that it has reminded all relevant staff of the importance of ensuring direct payment agreements are provided to people who arrange special educational needs provision using a personal budget. Remind staff these documents should clearly set out the rules around the use of direct payments and it is not in line with the Code to only include this information in the EHC Plan; and
3. Outline how the Council will ensure in future - through updated letter and form templates if necessary - that it will offer people a right of review of relevant decisions around personal budgets, including decisions to end them.
61. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
62. The Council should provide us with evidence it has complied with the above actions.

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Decision

63. I find fault causing injustice and the Council has agreed to take action to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman