Summary: The Council was at fault. It failed to provide all Miss X’s child, Y’s, Education, Health and Care (EHC) Plan provision, did not put in place a personal budget for Y’s provision and failed to carry out Y’s 2023 and 2024 EHC annual reviews in line with the statutory timescales. The Council will apologise to Y, make a symbolic payment to Miss X to acknowledge the impact of Y’s lost provision and the frustration, uncertainty and confusion it caused her and her delayed appeal rights. It has already put some service improvements in place but will also make a service improvement for putting in place actions agreed in complaint responses.

The complaint

1. Miss X complained the Council:
1. failed to provide suitable full-time education for her child, Y, from May 2023;
2. failed to provide Y’s Education, Health and Care (EHC) Plan provision awarded through a special educational needs and disabilities (SEND) Tribunal order from May 2023; and
3. failed to carry out Y’s EHC annual reviews since March 2022.
2. As a result, Miss X said she suffered avoidable distress and frustration. She said she had to give up work to care for Y and they have missed out on receiving full-time education and did not receive the special educational provision to which they were entitled which has affected their mental health and social relationships.

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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 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)
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 SEND tribunal in this decision statement.
6. 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)
7. 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.
8. 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.
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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

11. Miss X’s complaint, made to us in March 2025 covers Council actions since 2022. It is therefore more than 12 months since she first became aware of her concerns, so part of her complaint is late as explained in paragraph four above. However, there are good reasons for me to use my discretion to investigate events back to September 2023. This is because this was the start of the academic year after Y’s final amended EHC Plan was issued following the Tribunal order. September 2023 was also a year before Miss X complained to the Council.
12. I cannot investigate matters that were, or could have been considered by the Tribunal as explained in paragraph six above.
13. I have ended my investigation in late January 2025 when the Council issued its stage two response.

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How I considered this complaint

14. I considered the information Miss X provided and spoke to her on the telephone, the information the Council provided in response to my enquiries, relevant law and guidance, as set out below and our guidance on remedies, published on our website.
15. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

EHC Plans

16. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document sets out the child or young person’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. Section F sets out the special educational provision needed by the child or young person. Section G sets out the health provision needed by the child or young person and Section J sets out the personal budget.

Appeal rights to the SEND Tribunal

17. There is a right of appeal to the special educational needs and disabilities (SEND) Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a Plan has been made and sent to the parent or a final EHC Plan has been issued.
18. The courts have established that if someone has appealed to the SEND Tribunal or reasonably could have done so, 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).
19. 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.

Maintaining the EHC Plan

20. 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).
21. 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.

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. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
23. Councils can delegate the arrangements for an annual review meeting to a child’s school, but the council retains responsibility for ensuring the review is conducted within the statutory timescales.
24. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
25. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. The council should issue an amended Plan within eight weeks of its notice to the parties that it proposes to amend the Plan.

Personal Budgets

26. 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.

What happened

27. Miss X has a child, Y, who has special educational needs, a physical disability, autism and social communication difficulties.

Background

28. Y first had an Education, Health and Care (EHC) Plan in early 2021. Y had an annual review in March 2022. In mid-July 2023 the Council issued Y’s final amended EHC Plan following a special educational needs and disabilities (SEND) Tribunal order.
29. Y’s final amended EHC Plan included education other than at school (EOTAS) provision. EOTAS is a form of education where the child receives provision wholly outside of a school setting. It can be made up of several different kinds of provision. The key parts of Section F in Y’s July 2023 EHC Plan included the requirement for Y to receive:
• full-time education of 32 and a half hours educational provision per week over 39 weeks a year with one-to-one support and nine and a half hours two-to-one support per week;
• one-hour direct intervention a week over a 39 week period with a qualified highly specialist speech and language therapist (SALT) to develop and implement a bespoke speech and language programme and a meeting with Miss X and staff at the beginning of each half term to review progress and targets;
• access to an occupational therapist (OT), direct and indirect OT input and review;
• fortnightly one hour session of hydrotherapy over 39 weeks;
• fortnightly equine therapy sessions for two hours;
• social interaction with peers; and
• mental health intervention.
30. The relevant part of Section G of Y’s final amended EHC Plan included 40 minutes of play therapy a week.
31. Section J of Y’s EHC Plan included a personal budget and direct payments for Y’s one-to-one and two-to-one tuition and support. Section J also set out the funding for Y’s equine therapy, milage, room hire, alternative provisions, OT, SALT, IT, food and cooking ingredients but it did not state if this was a personal budget or to be paid directly by the Council.

September 2023 onwards

32. In response to my enquiries the Council said between September 2023 and July 2024 Y received a total of 18 hours per week including:
• Provision 1 (horticulture) for one day a week;
• Provision 2 (animal care) for one day a week;
• Maths tuition for three hours per week from mid-November 2023;
• English tuition for three hours per week from January 2024; and
• OT from mid-November 2023, two hours per week.
33. A legal letter issued to the Council on behalf of Miss X in late October 2023 said Y was not being provided with one-to one provision or receiving vital therapy. A second legal letter was issued to the Council in early February 2024. This said Y was not able to access any education because the Council had not paid the professionals working with Y and had ceased Y’s provision.
34. The Council said from September 2024 to December 2024, Y received a total of 20 hours per week, including:
• Provision 1 for one day a week;
• Provision 2 for one day a week;
• Provision 3 (independent learning skills) for one day a week;
• Maths tuition for three hours per week; and
• OT for two hours per week.
35. The Council said in response to my enquiries the provision provided to Y was one-to-one or one-to-two support.
36. The Council said provision not delivered to Y included:
• speech and language therapy (SALT) provision. The Council said it requested provision from a private SALT but it was not progressed because of a lack of capacity at the private SALT;
• play therapy. The Council said it was previously delivered through a private company through a child and adolescent mental health services (CAMHS) referral but that CAMHS stopped using the provider ‘some time ago’; and
• hydrotherapy. This was ordered through the Tribunal but not delivered.
37. In response to my enquiries the Council said it had not monitored Y’s provision and it did not receive any reports from Y’s providers. The Council also accepted it did not keep Miss X updated on Y’s EOTAS provision between September 2023 and January 2025.
38. Miss X said Y did not receive all their 32 and a half hours one-to-one provision a week or all their nine and a half hours of two-to-one provision per week. She said Y received alternative provision for two days a week which equated to eight-nine hours a week with two-to-one support. She said this alternative provision stopped at the end of 2024 and she had to source alternative provision for Y from January 2025. Miss X said Y did receive two hours of OT provision per week which was direct intervention. Miss X said Y did not receive the following provisions including: play therapy, SALT, hydrotherapy, equine therapy, social opportunities with peers or mental health intervention. Miss X said she did not receive a personal budget in the investigation period and she wanted Y’s provision to be commissioned directly by the Council.
39. In early September 2024 Miss X complained to the Council. She said it had not made funding available to the providers delivering Y’s education and the provision set out in Section F of Y’s final amended EHC Plan was not delivered. She said Y’s funding for their play therapy had been withdrawn. She also complained about delays with Y’s annual reviews. She said Y’s mental health was affected.
40. In mid-December 2024 the Council responded to Miss X’s stage one complaint and said:
• it apologised for the delay in responding to Miss X’s complaint which was due to demand on the service and staff changes;
• Y received a bespoke EOTAS curriculum including Maths and English tuition over three and a half days a week and the provision continued to be commissioned by the Council;
• Section J of Y’s EHC Plan outlined the provision in Section F of Y’s Plan which would be delivered by a personal budget as well as direct payments. It said it could not find evidence that a personal budget had been arranged and apologised. The Council said it would be actioned urgently;
• it was working to increase staff capacity and that Y would be allocated a case worker;
• it apologised for Y’s annual review delays with the last one taking place in March 2022; and
• suggested who Miss X could contact about Y’s mental health.
41. In early January 2025 Miss X was unhappy with the stage one response and escalated her complaint to stage two.
42. In late January 2025 the Council sent Miss X a stage two response and said:
• Y’s alternative provision was commissioned by the Council but this stopped in December 2024 leaving Y without an education in January 2025. It said the personal budget agreement to secure elements of Y’s Section F provision, specified in the stage one response had not been issued and it upheld this part of Miss X’s complaint and apologised for the disruption to Y’s education. To remedy this the Council said it would hold a virtual meeting at the end of January 2025;
• it upheld Miss X’s complaint about Y’s overdue annual reviews that were not held annually and apologised. It said it would assign Y an EHC case officer and arrange Y’s annual review. It said to ensure annual reviews took place annually financial resources had been secured to increase staffing capacity and it had put in place staff training;
• it was working with the Government and reporting to the Department for Education on how it was improving its SEN service; and
• it gave Miss X the Ombudsman’s contact details if she remained unhappy.
43. Miss X remained unhappy and complained to us.

Enquiries

44. In response to my enquiries the Council said it could not explain why it had not carried out Y’s annual reviews in 2023 or 2024 and it acknowledged it failed to meet its statutory duty. It said its SEN service did not have ways to reliably monitor whether it had carried out annual reviews. It had improved how it worked and was now able to track, plan and manage annual reviews.
45. The Council said it had increased staff and money within its SEN team as part of its improvement plan with Government. It believes these improvements will prevent the same problems happening again. The Council said Y’s case was overseen by a SEN Team manager.

My findings

46. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.

Annual Review

47. The Regulations state councils must arrange for EHC Plans to be reviewed at least once a year. This process is only complete when the council issues a decision about the review. Y’s first annual review was held in March 2022 and Y did not have an annual review in 2023 or 2024. The Council did not keep Miss X updated. The Council cannot explain why Y’s annual reviews did not take place in 2023 or 2024 and acknowledged it failed in its statutory duty. The Council was at fault and caused Miss X frustration and uncertainty and also delayed Miss X’s appeal rights to the SEND Tribunal. The Council has already apologised, and made improvements to avoid this happening again and assigned a manager to Y’s case. It has also agreed to make a symbolic payment to Miss X.

Missed provision

48. Y’s July 2023 EHC Plan included EOTAS provision for Y. Not all of this started in September 2023 with some starting in November 2023 and January 2024. The Council and Miss X’s statements about provision in the investigation period differ considerably. What is clear is that Y did not receive any provision in January 2025 and the legal letters record there were periods in Autumn 2023 and early 2024 when Y did not receive their provision.
49. Given the Council’s poor or absent record keeping, on balance this indicates Y’s provision was inconsistent. Y did not receive all the 32 and a half hours one-to-one and nine and half hours two-to-one education per week set out in their Plan which was fault. In addition, Y did not receive SALT, play therapy, hydrotherapy, equine therapy, social opportunities with peers or mental health intervention which was also fault. The Council did not monitor Y’s provision and did not update Miss X on Y’s EOTAS package. This was further fault. It meant Y did not get provision to which they were entitled.

Personal Budget

50. Miss X and the Council said a personal budget was not put in place for Y’s provision in the investigation period and the Council said in its stage one response it would action it urgently and apologised for the disruption to Y’s education. The Council did not put in place Y’s personal budget by the time it issued the stage two response. The continued delay in putting in place a personal budget was fault and caused Y to miss education to which they were entitled and caused Miss X frustration and confusion.

Service Improvements

51. The Council has already put in place some service improvements as explained in paragraphs 44 and 45 above. The Ombudsman will monitor the steps taken through our case work. In addition, the Ombudsman has already made service recommendations to this Council on similar cases including reminding staff of the duty to secure the provision in EHC Plans, its responsibilities around annual reviews including producing an action plan and arranging training for staff on its revised alternative education policy. These service improvements were made during and since the events in this investigation. Because of this I have not made recommendations in relation to these areas.

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Action

52. Within one month of the final decision the Council will:
1. pay Miss X a symbolic payment of £400 to acknowledge her frustration, uncertainty and delayed rights of appeal to the SEND Tribunal when Y’s annual reviews were not held in 2023 and 2024 or communicate with Miss X about this and the frustration and confusion over not actioning Y’s direct payments;
2. apologise to Y to acknowledge the impact of their lost provision between September 2023 and late January 2025;
3. pay Miss X £6,375 to acknowledge the impact of Y’s lost provision between September 2023 and late January 2025. This remedy was calculated at £1,500 per term for four full terms and quarter of a term for January 2025 in line with the Ombudsman’s guidance on remedies.
53. Within two months of the final decision the Council will:
1. put a system in place to ensure agreed actions from complaint responses are complied with.
54. The Council will provide us with evidence it has complied with the above actions.

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Decision

55. I have completed my investigation finding fault causing personal injustice. The Council has agreed to take action to remedy the injustice caused and prevent recurrence of the faults. The Council has already put in place actions to improve its service around annual reviews and provision, it will also put in place a new service improvement.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman