Summary: Mrs X complains the Council has failed to provide her daughter Y, with the provision outlined in her Education, Health and Care Plan. Mrs X says the Council failed to reimburse her for provision she has paid for to allow Y to receive education and support or put a personal budget in place. Mrs X says this has caused her and her family distress. We have found fault in the actions of the Council for failing to provide the provision in Section F and for failing to implement a personal budget. The Council has agreed to write to Mrs X to issue an apology and pay her a symbolic payment.

The complaint

1. Mrs X complains the Council has failed to provide her daughter Y, with the provision outlined in her Education, Health and Care Plan. Mrs X says the Council failed to reimburse her for provision she has paid for to allow Y to receive education and support or put a personal budget in place.
2. Mrs X says this has caused her and her family 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 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 cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended
5. 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)
6. 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)
7. 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

8. I have not investigated anything prior to June 2024 as this was subject to a previous Ombudsman investigation.
9. I have considered Mrs X’s complaint between June and August 2024.
10. I have not considered Mrs X’s complaint between August 2024 and July 2025 as Mrs X had appealed to the SEND tribunal about Sections B, F and I of Y’s EHC Plan which was issued in August 2024.Mrs X’s complaints are linked to matters which were appealed.
11. I have investigated Mrs X’s complaint from July 2025 to November 2025 following the completion of the SEND Tribunal matters.

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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 were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

14. A child with special educational needs (SEN) may have an Education Health and Care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them.
15. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date.

Duty to secure EHC Plan provision

16. 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)  

Appeal rights and the SEND Tribunal

17. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
18. Once the Council issues a final EHC Plan, there is a right of appeal to the SEND Tribunal against the:

• description of the child’s SEN;
• SEN provision specified;
• school or placement specified; or
• fact that no school or placement is specified.

19. The courts have established that if someone has appealed to the SEND 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. This means if a family appeals to the tribunal about the SEN provision or school placement/ lack of school placement in a final EHC Plan, we cannot investigate issues in the process that led to that final Plan. That is connected to the issue that has been appealed.
21. 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, where there is support in an EHC Plan that is not being delivered and we decide the cause is not connected to the appeal.

Personal budgets

22. 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.
23. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
24. 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.
25. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

What happened

26. The Council held a meeting in early June 2024 about concerns raised about missing funding information and the absence of an operation provision map in Y’s EHC Plan. The Council sent a case submission sheet in mid-June 2024.
27. Mrs X contacted the Council in mid-July 2024 to ask for changes to the draft EHC Plan including a request for a personal budget. Mrs X also provided evidence from a specialist teacher, Educational Psychologist (EP), Child and Adolescent Mental Health Service (CAMHS) and equine providers.
28. The Council confirmed it had requested approval for the changes Mrs X had asked for in July 2024 and it had submitted a request for a personal budget.
29. The Council contacted Mrs X in mid-August 2024 to confirm the personal budget had been approve for some items but decline to fund a drum kit.
30. The Council issued Y’s EHC Plan in mid-August 2024.
31. Mrs X appealed to the SEND Tribunal initially about the Section I- placement or school named. Mrs X then later expanded the appeal to cover Sections B and F – the description of Y’s SEN needs and the provision specified.
32. The Council issued a Final amended EHC Plan post tribunal in mid-July 2025.
33. In early July 2025 the Council had contacted the equine tutor providing provision to ask if they could provide an extra 5 hours tutoring. The Council chased a response to this in late July 2025.
34. Mrs X emailed the Council in early August 2025 to ask about what provision was in place for September 2025 and said it had not paid the equine tutor.
35. The Council responded to Mrs X in mid-August 2025 and confirmed the suggested provision it had in place. Mrs X responded to ask for a schedule for the personal budget.
36. The Council received an email from the equine tutor suggesting a suitable headset for Y to use during lessons/exams in late August 2025.
37. The Council emailed Mrs X in early September 2025 and confirmed it had agreed to various aspects of provision including yard fees, BHS tuition, a specialist teacher and drumming sessions. The Council asked Mrs X to confirm when would be suitable for the drumming lessons. The Council also advised it needed some further information to set up other aspects of the provision.
38. Mrs X emailed the Council in mid-September 2025 and said provision was not in place and a personal budget was also not in place. Mrs X also confirmed the options given about a drumming lesson were not suitable.
39. The Council were informed in late September 2025 that Y had stopped attending the BHS tuition provision.
40. The Council emailed Mrs X in late September 2025 to say the personal budget was with its finance team, but the costings were based on a yard which Mrs X no longer used. Mrs X asked the Council to change the case worker responsible for Y’s case.
41. The Council emailed Mrs X in early October 2025 to ask about the BHS tuition which had been in place. Mrs X responded to say the Council did not consult her about the tuition, and the provider was not suitably qualified.
42. The Council contacted Mrs X in mid-October 2025 and suggested an annual review due to provision not meeting needs. Mrs X responded to say she did not think the Council should hold an annual review due to the tribunal recently reviewing the matter.
43. The Council sent a further email in mid-October 2025 and said it had changed the case worker and again asked to arrange an annual review. Mrs X’s solicitor responded to say they did not think an annual review was needed.
44. Y suffered a nasty fall and injury which required an extensive recovery in October 2025. This meant the BHS tuition could not go ahead as planned due to Y being unable to ride.
45. Mrs X emailed the Council in late October and provided her comments for the annual review but again said she did not feel this was necessary. Mediation also ran in conjunction with the annual review.
46. The Council emailed the BHS tutor in early November 2025 to see how it could provide provision while Y recovered from her injury. This was mainly theory work which required Y to work through a workbook. The Council then asked Mrs X if she was happy with the tutor’s response. The Council also emailed Mrs X to confirm it had commissioned further provision.
47. The Council asked the tutor to supply the workbooks needed in early November 2025 but received an email from the tutor saying Mrs X would supply them.
48. The Council emailed the BHS tutor towards the end of November 2025 to confirm it had approved theory work while Y recovered from her injury. The BHS tutor responded to say that due to a delay in the Council responding they are now on leave and cannot provide the agreed provision.
49. The Council issued an amended EHC Plan in January 2026.

Analysis

Provision

50. In response to my enquiries the Council said overall, it did not maintain a complete and continuous delivered Section F package throughout the period investigated. The Council said Y’s day-to-day education and regulation support was sustained primarily through equine based and vocational activity arranged and paid for by Mrs X. This is fault and has caused Y to miss out on provision and distress to Mrs X.

Personal budget

51. In response to my enquiries the Council said while a personal budget was in place from September 2024 the evidence shows it was applied episodically and through one-off payments rather than as a fully operational, flexible budget. The Council says it revisited the personal budget, and it was used to address funding gaps but was not a stable commissioning mechanism throughout the period investigated. This is fault and would have caused frustration and confusion to Mrs X.

Reimbursement

52. The Council has shown it considered requests Mrs X put forward for reimbursement and has provided its reasoning for why these requests were not agreed. I have not found fault in the Council actions regarding requests for reimbursement.

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Action

53. Within four weeks of a final decision the Council should:

• Write to Mrs X to apologise for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £2,750 in recognition of the loss of provision over the period considered in this investigation. This is calculated at roughly £2,000 a term.
• Pay Mrs X £250 in recognition of the distress, frustration and inconvenience caused by the personal budget not being used as a stable commissioning mechanism.

54. The Council should provide us with evidence it has complied with the above actions.

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Decision

55. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman