Summary: Miss X complained about the Council’s handling of her education and special educational needs. We do not find the Council at fault regarding reimbursement of equipment. We do find the Council at fault for delay completing Miss X’s annual review, failing to act when it became aware she was out of education, failing to consider special educational provision, and failing to arrange advocacy support. These faults caused avoidable uncertainty and distress. The Council should apologise and make a payment to Miss X.

The complaint

1. Miss X complained about the Council’s handling of her education and special educational needs. In particular, she said the Council:
1. did not provide appropriate support when she stopped attending a course in 2024;
2. failed to reimburse her for the cost of equipment;
3. delayed completing her annual review;
4. failed to review her personal budget since 2019; and
5. failed to arrange an advocate for her.
2. She says because of this she has missed out on a year of education.

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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. 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.
5. 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)
6. 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

7. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. Regarding complaint matter d) Miss X has been aware since 2020 that the Council had not reviewed her Occupational Therapy (OT) personal budget and has raised several complaints with the Council and the Ombudsman since then. I have considered those earlier complaints and, as there are no good reasons why this issue was not brought to us sooner, my investigation into this matter covers events from July 2024 onwards when the Council agreed to complete an early annual review to look at the personal budget.
9. For all other matters, my investigation starts in February 2024.

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How I considered this complaint

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

EHC Plan

12. 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. 

Maintaining the EHC Plan

13. 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)  
14. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Personal Budgets

15. 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.

Reviewing EHC Plans

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

Post-16 in year transfer 

17. For young people moving between post-16 institutions, the council should normally complete the review process by 31 March where a young person is expected to transfer to a new institution in the new academic year. However, transfers between post-16 institutions may take place at different times of the year and the EHC Plan review process should take account of this. In all cases, where a young person is planning to transfer between one post-16 institution and another within the following 12 months, the council must review and amend, where necessary, the young person’s EHC Plan. This must be at least five months before the transfer takes place.  

Appeal rights

18. There is a right of appeal to the Tribunal against:

• the 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; and
• a decision to cease to maintain an EHC Plan.

19. 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)
20. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

What happened

21. Miss X is a young person with an EHC Plan.
22. In February 2024, the Council held Miss X’s annual review. During the meeting:
• Miss X confirmed she did not want to attend college in September and had instead enrolled on an online course starting that month.
• She and her family accepted the EHC Plan did not support online learning but felt she was too old to return to college.
• Miss X later decided she wanted to apply to college, and the Council agreed to send a consultation.
23. Later that month, Miss X applied to college. The college asked her to request that the Council send it a copy of her EHC Plan so it could consider the application.
24. Also in February, the Council agreed to fund Miss X’s online course and reimburse the cost of a laptop for the purpose of the course.
25. In March, the Council issued a final amended EHC Plan naming a type of placement.
26. In April, Miss X’s advocate asked why the OT personal budget had not been reviewed during the annual review and was missing from the EHC Plan.
27. In May, the Council amended the EHC Plan to include the OT personal budget and apologised.
28. In June, Miss X told the Council her advocate could no longer support her and that she had stopped attending the online course.
29. Later that month, the Council referred her for a new advocate.
30. In July, the Council acknowledged the OT personal budget should have been reviewed during the February annual review. It said it would arrange an early review in the first term of the 2024/25 academic year.
31. In August, the Council:
• Continued trying to arrange advocacy.
• Contacted the online course provider, which said it needed Miss X’s consent before responding.
• Asked Miss X for consent but she did not provide it.
• Was again informed Miss X was no longer attending the course.
• Received a request of consultation from the college, which it then sent.
32. In September, the college told the Council the course was full, and it could not meet Miss X’s needs.
33. Later that month, Miss X chased the early annual review, and review of her personal budget, reminding the Council she was not in education, and said she still had no advocate.
34. In October, Miss X complained about delays in the annual review, lack of support after she left the online course, and lack of response about her personal budget. The Council replied that her review was not due until February 2025, it was still seeking advocacy, and the college could not meet her needs.
35. Later that month, Miss X again chased the annual review and personal budget review. She also said she wanted to start a new course which required specialist equipment, and she asked the Council to fund it. After receiving no reply for three days, she purchased the equipment herself and requested reimbursement. Her former advocate also contacted the Council seeking an update and asking for new advocacy support.
36. The Council said it had no record of agreeing to reimburse the equipment and asked for more information. It then contacted Miss X to arrange an early annual review, chased her for consent to contact the online course provider, asked how she was using her personal budget, and confirmed it was still trying to secure an advocate.
37. In November:
• Miss X gave her availability for the review, again asked about advocacy, and reminded the Council she was not in education and that her personal budget required review.
• She later explained she had assumed the Council had approved the equipment request because it did not reply.
• The Council shared the college’s reasons for refusing the placement, arranged the annual review, asked if Miss X wanted the college to attend to reconsider its decision and said it would approach another advocacy agency.
• Miss X confirmed her parents would support her at the annual review.
• The Council postponed the annual review because it was still waiting for Miss X’s consent for the online course provider.
38. In February 2025, the Council contacted Miss X to rearrange the postponed review.
39. In March, the Council responded to Miss X’s October complaint. It accepted it should not have postponed the December review simply because consent for the online provider was outstanding. It said it would consider reimbursing the equipment at the 2025 review, said it believed August was the first time it became aware Miss X was out of education, and confirmed the personal budget would be reviewed at the next annual review.
40. Miss X escalated her complaint, saying she had told the Council much earlier that she was no longer attending the online course, and that the Council had never refused the equipment request.
41. In April, the Council held the annual review. Miss X said she wanted to start a new college course and intended to do so without an EHC Plan. The Council decided to cease the EHC Plan. Miss X appealed this decision to the Tribunal.
42. In May, the Council issued its stage 2 complaint response. It apologised for the delay in complaint handling and offered £200, confirmed it would not reimburse the equipment because Miss X was not enrolled on a course requiring it, and said the personal budget had not been reviewed earlier because no OT provision was listed in Section F of the EHC Plan.
43. In response to enquiries, the Council acknowledged the February 2024 review was not as thorough as it should have been as much of the information specified dated back to 2015, and that it did not review OT provision in April 2025 because it was not included in Section F and the Council had already decided to cease the Plan.

My findings

February 2024 annual review

44. The Council accepts the February 2024 review was not thorough and relied on outdated reports. This was fault. The review also failed to properly address Miss X’s wish to transfer to college in September and the Council failed to consult the college at that time. This too was fault. The Council should have updated the EHC Plan with up-to-date information and consulted the college at least five months before the intended transfer.
45. I cannot determine, even on the balance of probabilities, how the EHC Plan would have been amended had the review been completed properly, or whether the college might have reached a different decision. This leaves Miss X with uncertainty about the potential outcome.

Support when Miss X stopped attending her course

46. The Council first became aware in June 2024 that Miss X was no longer attending the online course. At this point it should have brought forward an early review to consider alternatives. It did not act until August. This was fault.
47. On balance, even if the Council had consulted the college earlier, it is likely the college would still have concluded it could not meet Miss X’s needs. Earlier consultation, however, may have prevented the course from becoming full and could have allowed Miss X to explore alternative options. I cannot say what the outcome of this would have been, and the delay therefore leaves Miss X with some uncertainty.
48. The February 2024 annual review had already established that the online course could not deliver the special educational provision in Section F. Miss X had nevertheless chosen to enrol. Because she would not have received that special educational provision even if she had remained on the course, the injustice arising from missed provision between June and September is limited.
49. After September, the Council did not consider how to ensure Miss X’s special educational provision would be delivered. However, the required provision could only be delivered in an education setting, so the impact of this specific omission is limited.

Reimbursement for equipment

50. Miss X has confirmed the Council never agreed to reimburse the cost of the equipment. The Council later considered her request and decided not to reimburse because she was not enrolled on any course requiring it. That decision was made fairly and without fault.

Delay completing the annual review

51. The Council has acknowledged it should not have postponed the annual review scheduled for December 2024. Instead, the review took place in April 2025. This delay was fault.
52. On the balance of probabilities, the Council would likely have reached the same decision, to cease the EHC Plan, had the review taken place in December. The injustice to Miss X is therefore limited to the distress and time spent chasing the review, and a delayed opportunity to appeal (which she has since exercised).

OT personal budget

53. The Council accepted that the OT personal budget should have been reviewed at the February 2024 annual review and that its omission from Section F of the EHC Plan was an error. In July 2024, it specifically agreed to arrange an early annual review to consider the OT personal budget. That review was delayed.
54. When the annual review eventually took place, the Council did not review the OT personal budget and relied instead on the absence of OT provision in Section F of the EHC Plan. This was not a valid justification. The absence of OT provision was the result of an earlier acknowledged error, and the Council should have corrected this before, or as part of, the review it had agreed to hold for that very purpose. Its failure to do so was fault.
55. However, once the Council decided to cease the EHC Plan, it was no longer required to review the OT personal budget. On balance, even if the agreed early review had taken place sooner and had included consideration of the OT personal budget, the Council would still have reached the same decision to cease the Plan. The resulting injustice is therefore limited.

Delay arranging advocacy

56. The Council initially took prompt steps to source a new advocate. However, it did not respond to an advocacy provider’s request for information in June until August, which was fault. After August, the Council has provided no evidence of further attempts to secure advocacy support, despite repeatedly telling Miss X it was working on this. This was also fault.
57. Miss X wished to have an advocate because of the communication difficulties she experienced with the Council. Evidence shows the Council had previously been slow to respond even to her advocates, so it is unlikely advocacy would have significantly improved the Council’s communication. Miss X was able to express her views and was supported by her family at the annual review. She did not miss out on services because of the lack of an advocate, but the repeated chasing caused avoidable frustration.

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Action

58. To remedy the injustice caused by the above faults, within four weeks of the date of our final decision, the Council has agreed to: 
• apologise to Miss X in line with our guidance on Making an effective apology; and
• pay Miss X £500, to recognise the uncertainty and avoidable distress caused by the failures in the February 2024 annual review, lack of action when stopped attending online course in June 2024, delay completing early annual review and failure to arrange an advocate.
59. I have not made any further recommendations in relation to delays within the Council’s SEND team. This is because, since the period covered by this complaint, the Council has already provided relevant training and guidance to staff and is keeping the Ombudsman updated on the actions it is taking to strengthen staffing and improve its service.
60. The Council should provide us with evidence it has complied with the above actions.

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Decision

61. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman