Summary: Mrs X complained about the Council’s failure to deliver therapies included in her daughter’s (Y) Education Health and Care Plan, to agree a Personal budget for Y and to review Y’s plan. Mrs X also complained about the way the Council carried out Y’s Education Health and Care needs assessment. We found fault with the Council. This fault caused injustice to Y and Mrs X. The Council has offered a suitable financial remedy. The Council has also agreed to ensure Y receives therapies in the new school year and improve its Personal budget process.

The complaint

1. Mrs X complains the Council failed to:
• secure Speech and Language therapy (SLT) and Occupational therapy (OT) included in Y’s EHC Plan from October 2024;
• agree a Personal budget for Y;
• provide acceptable communication;
• adequately respond to her complaint;
• comply with the statutory timescales for Y’s EHC needs assessment and issuing of her EHC Plan;
• consult with schools in a timely manner during the EHC Plan process;
• carry out a social care assessment for Y as part of her EHC needs assessment.
2. Mrs X says the Council’s failings meant Y missed provision, which is necessary for her to make progress with her education. They also caused significant distress, anxiety and frustration to Mrs X, as she spent much time contacting the Council and complaining. Mrs X says the Council’s failings impacted Y’s parents’ work and home life. They incurred extra costs of seeking advice and professional help.

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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. We consider whether there was fault in the way an organisation made its decision. 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. 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)
6. 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)
7. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended).
8. 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)
9. 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

10. I have not investigated what happened during Y’s EHC needs assessment and before the Council issued her final EHC Plan in August 2023. This is because these events took place more than 12 months before Mrs X came to us and there are no good reasons to exercise our discretion. Mrs X explained she did not complain sooner as she understood from the information on our website that we do not look at anything that carries a right of appeal. The Council’s failure to follow the right EHC Plan process cannot be appealed, so this limit to our jurisdiction does not apply.
11. I have decided to investigate the Council’s failure to carry out an Annual Review of Y’s EHC Plan although Mrs X did not mention it in her first complaint to the Council and when she came to us. This is because in June 2025 the Council responded to Mrs X’s complaint about the Council’s failure to review Y’s EHC Plan and referred to it when responding to our enquiries. This part of Mrs X’s complaint is not, therefore, premature as the Council had an opportunity to investigate and respond.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. Mrs 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

Legal and administrative background

Delivery of special educational provision

14. 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 S.42 (2))
15. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

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 consider each request for a personal budget on its individual merits. It can refuse a personal budget if the sum is part of a larger amount and disaggregation of the funds for the personal budget would have an adverse impact on services provided or arranged by the council for other EHC Plan holders, or it would not be an efficient use of the council’s resources.
18. A council must consider a request for a direct payment if a child’s parent made it at any time during the period in which the draft EHC Plan is being prepared or reviewed. (Special Educational Needs (Personal Budgets) Regulations 2014 regulation 4)
19. When refusing direct payments the Council must:
• set out its reasons in writing;
• inform the child’s parent or the young person of their right to ask for a formal review;
• consider parental or young person’s representations and respond to them in writing giving the reasons for the council’s decision.

Annual review

20. 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. (Children and Families Act S.44 (1) and SEN Code paragraph 9.169) 

What happened

21. This section is not a full account of everything that happened but an outline of events which are relevant to this decision.
22. The Council issued Y’s first EHC Plan in mid-August 2023. Mrs X appealed the content of this plan. The appeal ended in the second week of October 2024.
23. The Council issued Y’s post-Tribunal EHC Plan at the end of October. Section J of the plan stated that Y’s parents asked for a Personal budget but the Council refused it. The Plan included provision for:
• weekly direct OT delivered by an OT with extra post-graduate training;
• half-termly direct SLT;
• regular reviews of the OT and SLT programmes which would be implemented daily by specific members of the school staff.
24. Throughout November and December 2024 Mrs X kept contacting the Council asking it either to arrange therapies or to approve a Personal budget for her. Mrs X explained she found suitably trained OT and SLT who could deliver the relevant content of Section F. At the beginning of December the Council said Y’s provision would be discussed at a Panel meeting. At the end of the month Mrs X complained to the Council.
25. At the beginning of January 2025 the Council agreed to increase funding for Y’s school to secure the OT equipment included in her plan.
26. At the same time the Council responded to Mrs X’s complaint. Mrs X considered the Council’s response inadequate. She said the Council had failed to mention SLT provision and the Personal budget issue. The Council, she said, continued to breach its duty to secure therapies for Y.
27. Two weeks later Mrs X’s solicitors sent a pre-action protocol letter to the Council. They confirmed the OT and SLT who provided professional advice during the appeal, were available to deliver provision included in Y’s EHC Plan. Mrs X was happy to arrange therapy if the Council agreed a Personal budget.
28. At the beginning of February 2025 the Council responded to Mrs X’s pre-action protocol letter, stating that Y’s OT would start after half-term. The Council accepted it had failed to deliver therapy included in Y’s EHC Plan and offered £1000 to remedy the injustice caused by this failure.
29. As Mrs X unsuccessfully tried to contact the Council directly, her solicitors sent another letter referring to their earlier pre-action protocol correspondence.
30. In mid-February 2025 Mrs X received a telephone call from a SLT assigned by the Council. The SLT arranged to assess Y at school in the second week of March.
31. After the exchange of correspondence, the Council held a remote meeting with Mrs X at the end of February 2025. The Council said its commissioned therapy provider (the Agency) would subcontract the SLT who prepared private advice for Y to deliver therapy.
32. The Agency commissioned the private SLT to deliver three sessions during March and April 2025. In response to Mrs X’s query the Council told her the SLT was commissioned only for a term due to internal funding arrangements. At the end of April the Council stopped funding the private SLT, because a specialist SLT working for the Agency became available. After a handover meeting between the private SLT and a new SLT, the new SLT visited Y at school in mid-May 2025. Two further SLT sessions were booked for July 2025.
33. Although the Agency identified an OT with qualifications and training needed to deliver therapy to Y, this person was not available until June 2025. In the second week of March 2025 a different OT found by the Agency visited Y’s school to assess her. There was no follow up from this visit. Another OT without required training and qualifications visited Y at school twice in May 2025. The Council told us Y received three OT therapy sessions in June with further three sessions booked for July 2025.
34. At the beginning of May 2025 Mrs X received correspondence from Y’s school about an Annual review of her EHC Plan. The school was planning a review but suggested it could be difficult as the provision from Section F was not in place and the school staff had not received training which they needed to support Y.
35. At the end of May Mrs X complained to the Council about its failure to review Y’s EHC Plan since it had been issued in August 2023. After some further correspondence, the Council responded at the end of June 2025. The Council recognised:
• delays when responding to Mrs X’s communication;
• failure to review Y’s EHC Plan;
• lack of therapy provision.
36. To address its failings the Council said it would respond to Mrs X’s communication within five working days or ten working days if it was a formal complaint. The Council undertook to arrange an Annual review of Y’s EHC Plan in September 2025. It also confirmed all therapy provision for Y were in place.
37. In mid-July 2025 the Council offered Mrs X £1,000 for two terms of the missed therapy provision, £1,000 for the distress caused to the family and £500 for poor communication. Mrs X did not accept this offer as, she said, it did not consider the full extent of her injustice caused by the Council’s failings.
38. At the beginning of September 2025 Mrs X told us the OT who was to deliver therapy provision to Y would not be available until the early 2026. She also said she had no confidence the SLT provision would be delivered to Y in the year 2025/2026 as she received no dates of the SLT involvement in the new school year. Besides she was told Y’s SLT would be delivered by a different therapist to the one, who started supporting her before summer holidays.

Analysis

Delivery of special educational provision

39. Councils have a duty to ensure delivery of all special educational provision included in the child’s EHC Plan.
40. The Council should have arranged Y’s therapy provision at the final stages of the appeal but definitely no later than when the Tribunal issued its decision at the beginning of October 2024. The Council significantly delayed contacting its commissioned therapy provider, the Agency, and making the arrangements. Until the second half of the summer term 2025 there was no consistency in SLT and OT for Y.
41. The Council’s failure to ensure Y received therapy provision specified in her EHC Plan from the end of October 2024 is fault. It caused injustice to Y as she missed two terms of the provision which was necessary for her to fully access education. Y’s teaching staff did not receive appropriate training which would allow them to support her adequately on a daily basis. The Council’s fault also caused injustice to Mrs X as she spent much time contacting the Council and seeking external help to ensure Y had provision she needed.

Personal budget

42. The Council’s website says: “If a parent/carer or young person has requested a personal budget but this has not been agreed by the local authority, or if a decision has been made to withdraw the personal budget, the reason for the decision must be provided to the parent/carer or young person in writing. In giving its decision, the local authority will advise the parent/carer or young person that they have the right to request a formal review of the decision.  The timescales and arrangements for considering a review of the decision will be set out in the letter.”
43. Mrs X asked for a Personal budget for OT equipment and Y’s therapy provision. When responding to our enquiries the Council said it had refused Mrs X’s request for direct payments for the OT equipment as it had decided to increase school funding for Y instead. The Council failed to refer to Mrs X’s request for direct payments to arrange OT and SLT for Y.
44. As explained in paragraph four we cannot look at the merits of councils’ decisions but review the process they have followed in reaching these decisions.
45. The Council failed to follow the right process after Mrs X had asked for a Personal budget for Y’s therapies and the OT equipment. The Council failed to respond in writing to Mrs X’s Personal budget requests, to explain its reasons for the refusal and to advise she could ask for a review of this decision. This is fault.
46. The Council’s failure to respond formally to Mrs X about the OT equipment for Y did not cause her injustice because the Council agreed to increase funding for Y’s school to buy it.
47. The Council’s failure to respond to Mrs X’s request for a Personal budget for SLT and OT caused her injustice. The Council’s failure to explain in writing its reasons for refusing Mrs X’s Personal budget request and to tell her about her right to ask for a review of this decision meant Mrs X was getting increasingly frustrated. She spent much time corresponding with the Council and sought external help. By not following the right process the Council denied Mrs X an opportunity to challenge the Council’s decision.

Annual review

48. The Council has accepted its failure to review Y’s EHC Plan within 12 months from its issuing in August 2023. It said it would review it in September 2025.
49. The Council’s failure to review Y’s EHC Plan in 2024 is fault. It did not cause, however, injustice to Y and Mrs X as in 2024 the SEND Tribunal reviewed special educational needs and provision included in Y’s EHC Plan. After it had considered all relevant professional advice, in its decision in October 2024 the Tribunal set up what Y needed to access education. Although educational outcomes cannot be appealed, the case law allows the Tribunal to suggest amendments to Section E which are consequential to changes in Sections B and F. Therefore any injustice caused by the lack of Y’s EHC Plan review in 2024, if any, would be minimal.

Communication and complaint handling

50. Following our guidance notes ‘Principles of Good Administrative Practice’ when providing their services councils should be citizen focused as well as open and accountable. Councils achieve this by:
• informing people who use services what they can expect and what the council expects of them;
• keeping to commitments;
• dealing with people helpfully, promptly and sensitively, taking account of their individual circumstances;
• ensuring information and any advice provided is clear, accurate and complete;
• stating the criteria for decision making and giving reasons for decisions.
51. When communicating with Mrs X the Council failed to uphold the standard we would expect. Specifically:
• some of Mrs X’s correspondence remained unanswered or the Council delayed its responses;
• the Council failed to address all the issues raised by Mrs X in her correspondence and complaint;
• information provided to Mrs X was at times vague or inaccurate;
• the Council failed to keep its commitments.
52. The Council’s failure to provide satisfactory communication to Mrs X is fault. It caused her injustice as Mrs X spent much time sending letters and meeting with the Council to get resolution to the issues she was raising. Mrs X struggled to combine communication with the Council with her work and home duties. She was distressed by the Council’s delays and misleading information about Y’s therapeutic support.

Remedies offered by the Council

53. The Council apologised to Mrs X and, after we started investigating Mrs X’s complaint, offered her a financial remedy of £2,500 in total. This is sufficient symbolic payment to remedy Y’s injustice caused by the Council’s failure to secure OT and SLT and Mrs X’s distress caused by all the Council’s failings identified during this investigation. This is more than we would normally recommend in such circumstances.

Service improvements

54. The Council told us it has an Annual Review improvement plan in place, which includes ensuring there is effective communication with schools about the Annual reviews dates. The Council has introduced an Annual Review Coordination Oversight Group which is facilitated by one of the Assistant Directors. Annual reviews data is shared monthly with the SEND Performance Board.

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Action

55. To remedy the injustice caused by the faults identified, we recommend the Council complete within two weeks of the final decision the following:
• pay Mrs X £2,500 the Council offered in its correspondence of 16 July 2025;
• either ensure specific SLT and OT are commissioned to provide therapy for Y in accordance with her EHC Plan for the whole school year 2025/2026 or re-consider Mrs X’s request for a Personal budget for Y’s therapies. The Council will provide us with the evidence it has completed one of these actions.
56. We also recommend the Council within three months of the final decision complete the following:
• review its Personal budget process to make it compliant with its policy. The Council will ensure that when refusing a Personal budget request for a child with an EHC Plan it sends its response in writing giving the reasons and advising of the right to ask for a review;
• remind all the SEND front-line staff of the Council’s duties in relation to Personal budgets for children with EHC Plan. For this purpose the Council might use our Focus report “Parent Power: personal budgets in EHC plans”.

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Investigator's decision on behalf of the Ombudsman