Summary: Ms Y complains about the Council’s failure to deliver some of the provision outlined in her child’s Education Health and Care (EHC) Plan. Some of the provision Ms Y wanted is connected to an ongoing appeal and so we have not investigated this part of the complaint. In other parts of the complaint, we find the Council delayed in issuing the final EHC plan and then failed to maintain regular contact with Ms Y as agreed. This caused injustice which the Council will remedy with an apology and symbolic payment.

The complaint

1. Ms Y complains the Council has failed to provide all parts of the agreed personal budget needed to deliver the provision outlined in Section F of her child’s EHC plan.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended).
4. 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)
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)

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What I have and have not investigated

6. Part of Ms Y’s complaint is regarding the Council’s refusal to include certain provision in her child’s (D) EHC plan, including specialist therapy and emotional support for D’s social, emotional and mental health (SEMH) needs. Ms Y also complained about the Council’s refusal to fund certain physical activities for D.
7. The records show the above points featured in Ms Y’s application to the SEND Tribunal to appeal Sections B and F of D’s EHC plan. As a result, we cannot investigate the alleged failure by the Council to consider requests made for that provision to be included in the EOTAS package as the matters are subject to an ongoing appeal due to be heard in January 2026.
8. Instead, this investigation has focussed on the procedure followed by the Council in ensuring the delivery of the agreed provision and personal budget as per its duties under Section 42 of the Children and Families Act (2014).
9. I have investigated what happened between February 2024 when the Council started planning for D’s transition to post-16 education and February 2025 when Ms Y approached the LGSCO. I have not investigated what happened after February 2025 because the LGSCO’s Investigation Manual suggests that, where there are on-going issues, we should specify an end date beyond which we will not investigate. This should be no later than the date when the complaint was submitted to us and may well be earlier.

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How I considered this complaint

10. I considered evidence provided by Ms Y and the Council as well as relevant law, policy and guidance.
11. Ms Y and the Council have an opportunity to comment on my draft decision. I will consider any comments before making a final decision.
12. 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 found

EHC plans and personal budgets

13. A child or young person with special educational needs may have an 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. 
14. 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.
15. The final allocation of a personal budget must be sufficient to secure the agreed provision specified in the EHC plan and must be set out as part of that provision.
16. While there is no right of appeal against a council’s decision to refuse a personal budget, there is a right of appeal to the Tribunal against the following:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue an EHC Plan following an assessment;
• 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 in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

17. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, 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).
18. 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.
19. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started, and support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened.

What happened

20. Ms Y has a child who I will call D. They have special educational needs and receive provision outlined in their EHC plan. D left their specialist secondary school placement in summer 2024 in readiness to transition to post-16 education from September 2024.
21. In early 2024 the Council consulted with some providers of post-16 education for D. The provider which Ms Y initially expressed a preference for was later found to be unsuitable because it did not offer the courses which D wanted to study.
22. Around this time Ms Y asked for a package of education to include a part-time day placement combined with home tutoring.
23. The Council consulted with a provider of specialist education. It agreed to offer a placement for D, either on a full-time or part-time basis for three days each week.
24. Following the consultations, the Council issued a draft EHC plan on 7 February 2024. Ms Y contacted the Council the following day to provide an update about D’s needs. Ms Y also requested a package of ‘Education Other Than at School’ (EOTAS). The Council said it would need to consider the request at panel.
25. Ms Y submitted some proposed costings to the Council for an EOTAS package. The Council scheduled a panel meeting on 23 April 2024, but this did not go ahead. D’s caseworker emailed Ms Y in early May to say that consultations with education providers were ongoing.
26. The panel went ahead on 15 July 2024. D’s caseworker emailed Ms Y with an update on 29 July and to confirm the panel’s decision. The email explained the Council had agreed in principle to fund a package of EOTAS to include tutoring, exam costs and re-take costs if needed. The Council confirmed it did not agree to Ms Y’s request for, gym membership, personal training and 1:1 karate lessons.
27. The Council issued a final EHC plan on 19 September 2024. The EHC plan included a blank Section I. Section F confirmed that D: “… will have access to a bespoke timetable of provision that is through Education Other than at School (EOTAS). This includes tutoring for GCSE Business Studies and GCSE Mandarin and Mentoring”.
28. Ms Y asked the Council in late September for funded therapy sessions to help with D’s anxiety. The Council refused the request and provided details of how to access therapy through the NHS. However, the Council agreed to put D’s case back to panel to discuss Ms Y’s continued requests for gym membership and karate lessons.
29. The panel met on 7 October 2024. It decided that further information was needed to establish how the request for gym and martial arts funding would support D’s outcomes and aspirations as per their EHC plan.
30. Dissatisfied with the lack of action, Mrs Y issued a pre-action protocol on 12 November 2024 outlining her intention to commence judicial review proceedings against the Council. The Council responded on 27 November 2024 with the following proposals.
• Bi-weekly telephone conversations until the situation is resolved, starting from tomorrow.
• Arranging an annual review to determine the support needed for D.
• Introducing Ms Y to their new SEND provision lead
• Providing support for whole family during this time.
31. The annual review took plane on 20 December 2024. The Council concluded “there are still aspects of the EOTAS package that [Ms Y] feels are missing, for example mentoring, which is being reviewed as part of this annual review”. Later that day the Council emailed Ms Y with a personal budget agreement form relating to D’s exam fees for Ms Y to sign and return.
32. On 29 January 2025 the Council wrote to Ms Y to confirm: “the panel feel that [D’s] current package meets [their] needs and all of the provision in section F. Due to this, the therapy and horse riding have not been agreed and at this stage will not be seen again by panel. This can be requested again at the next annual review, for the next academic year”.
33. Ms Y submitted an appeal to the SEND Tribunal to challenge parts of Section B and F of D’s EHC Plan. The papers show that Ms Y has appealed for gym membership, other physical activities and therapy for D’s SEMH.
34. During the period I am investigating, the records provided by the Council show the following direct payments made to Ms Y to fulfil the personal budget for D’s agreed EOTAS:
• 2 September 2024 - £14,040 for tutoring
• 24 December 2023 - £610 for exam costs
• 6 January 2025 - £11,232 for tutoring

Was there fault in the Council’s actions causing injustice to Ms Y and D?

35. I find fault with the Council for the following reasons:
• When Ms Y submitted her pre-application protocol letter, she expressed her dissatisfaction with the Council’s communication. The Council made a commitment to maintain regular communication with Ms Y about the progress of D’s EOTAS. In response to our enquiries, the Council confirms it has no record of maintaining the contact as promised. This is fault which has caused injustice to Ms Y in the form of raised expectations and frustration.
• The Council issued the draft version of D’s amended EHC plan on 7 February 2024 and the final version on 19 September 2024. The law says where a child or young person is moving from secondary school to a post-16 institution, the Council must review and amend the EHC plan by 31 March in the calendar year of the transfer. The Council’s delay here was significant and amounted to five and a half months. While D continued to have access to education during that period of delay, the final plan was contested by Ms Y and so the delay significantly frustrated her right of appeal. The delay also likely created anxiety for D as they were unsure about where they would transition to for September.
36. I have not found fault with the delivery of the agreed Section F provision and the timeliness of the personal budget payments. For the period I am investigating, the Council made two large payments: one at the beginning of the Autumn term and the second at the start of the Spring term. It is my understanding that those two payments represented two thirds of the agreed tutoring for D’s EOTAS in accordance with the EHC plan in place at the time.
37. I understand that, around this time, Ms Y wanted additional funding for extra provision, however that is subject to an ongoing appeal and is therefore outside of our jurisdiction. For the matters within our jurisdiction, and during the period February 2024 to February 2025, there is no fault in the provision made available for D.

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Action

38. Within four weeks of my final decision, the Council has agreed to:
• Apologise to Ms Y for the injustice identified in this statement. 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 in my findings.
• Pay £500 to Ms Y. This is a symbolic payment in recognition of the frustrated appeal rights caused by the significant delay in issuing D’s final EHC plan. This payment also recognises the frustration and raised expectations caused by the Council’s failure to maintain contact with her, as agreed in November 2024.
• Pay £250 to D. This is a symbolic payment in recognition of the anxiety caused by the delay in finalising their EHC plan in readiness for transition to post-16.
39. The Council will provide us with evidence it has complied with these actions.

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Decision

40. I find fault causing injustice. The Council will complete the above actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman