Summary: There was fault by the Council. The Council delayed carrying out an annual review of an Education, Health and Care Plan. The Council also delayed making a decision on whether or not to make direct payments. This meant that two children received no educational provision from Section F of their Education, Health and Care Plan for one term and limited provision for two further terms. An apology, symbolic payment and review of procedures remedies the injustice to the family.

The complaint

1. The complainant, Mrs X, has two children, Y and Z. She complains the Council did not carry out an annual review of the children’s Education, Health and Care (EHC) Plans in July 2024.
2. Mrs X complains the Council discontinued direct payments for the 2024/2025 academic year with no notice and without explaining why. This meant the Council did not provide the provision in Section F of the children’s EHC Plans from September 2024 until July 2025. Mrs X is represented by her husband, Mr X, who explains the impact of the stress affected her health and the children missed out on 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. 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)
5. 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

6. 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) Mrs X complained about the delay in finalising the children’s EHC Plans in 2022 and that an annual review was not held in July 2023. Mr X explained they tried to make a complaint in 2023 but did not pursue it at that point. I do not intend to exercise discretion to investigate prior to July 2024, as up to this point they had been receiving direct payments for the children’s education and it would have been reasonable for them to complain at the time when the 2023 annual review was missed.
7. I have investigated matters from July 2024 onwards.

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How I considered this complaint

8. I considered evidence provided by Mrs X, Mr X and the Council as well as relevant law, policy and guidance.
9. Mrs 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

10. Mrs X has two children, Y and Z. The children have EHC Plans and have an Education Other Than At School (EOTAS) package.

Annual reviews

11. 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. 
12. 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 cease to maintain 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) 
13. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
14. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
15. The Council said that first annual review of the EHC Plan was carried out in November 2023
16. The Council asked an Educational Psychologist to give advice to update the children’s plans. The Council said that in a meeting on 12 January 2024, Mrs X said that everything was going well and no changes to the EHC Plan were needed. There is no evidence of an annual review being carried out within 12 months of either the November 2023 review or January 2024 meeting. This was fault.
17. An annual review of the EHC Plan was completed in June 2025, with letters sent to the parents giving them the right of appeal. There was a delay of about 6 months. I have not proposed a separate remedy for this, it is considered as part of the loss of education.

Section F provision

18. 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)  
19. 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. 

20. 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.
21. Mrs X received a direct payment to provide her children’s educational provision.
22. Mrs X emailed the Council on 4 July 2024, with her budget request for the 2024-2025 academic year.
23. After some correspondence, querying the provision over the last year, the Council sent a letter to Mrs X on 19 November 2024 saying that it was stopping the direct payments for Y and Z’s education. The Council said it was stopping the payments as it was of the view that Mrs X was not using the direct payment to secure the agreed provision. The letter explained that Mrs X could request a reconsideration of the decision and in the short term, the Council would directly commission educational provision for Y and Z.
24. Mr X explained they did not appeal the decision as they did not want to continue delivering all the educational provision.
25. Y and Z received no educational provision for the autumn term in 2024.
26. Mr X said a tutor was commissioned and started at the end of January 2025 until 19 March 2025. And some educational resources were provided after Easter 2025, but provision only really started in September 2025, which is going well. Mr X said he hopes the children will transition to a school place in September 2026.
27. Mr X complains about the decision made by the Council to remove the direct payments. He says that they were not given information on why this decision was made. Mr X could have appealed if he wanted to challenge the decision or to find out more information but he did not. I understand his concerns but I have seen the information from the Council and legal advice, and I cannot find fault in the decision making process itself. However, I do find fault with the time it took to make the decision, from July 2025 until November 2025. And there was service failure, as the Council did not ensure that the provisions in Section F of the EHC Plan were put in place from September 2025 temporarily while it decided whether or not to continue with the direct payments.
28. To remedy the injustice to Y and Z, from the loss of educational provision, our guidance on remedies says ‘where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the harm caused by that loss. The figure should  be based on the impact on the child and take account of factors such as:

• The severity of the child’s SEN as set out in their EHC Plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.

The symbolic payment of £900 - £2,400 per term is intended to remedy injustice caused to the child from missing provision, as well as the normal range of consequential injustice also caused to the family due to  this fault, for example; where there is significant additional caring responsibilities that occur from a child being out of education, and avoidable disruption to daily routine’.

29. In response to my enquiries, the Council has said ‘due to issues identified with the direct payments not being used to secure the agreed provision, it would not be appropriate to make a symbolic payment for loss of education in this instance.’
30. In my view, the injustice from the loss of education to Y and Z (and the impact of this on their parents) is separate from the use of the direct payments the previous year and so a symbolic payment is appropriate. If the Council believes that the direct payments were not properly spent according to the agreement the parents signed then any action on this is separate to the provision of Section F in the EHC Plan from September 2024 when there was no direct payment agreement in place.
31. Y and Z received no educational provision in the Autumn term from September 2024 until December 2024. So, I consider a payment of £2400 each is appropriate for this time. For the spring and summer terms in 2025, some provision was made so I propose a payment at the lower rate, of £900 each.

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Action

32. Within one month of the date of the decision on this complaint, the Council should:
• Apologise to Mr and Mrs X. 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 Mr and Mrs X £4200 for Y (25 000 276)
• Pay Mr and Mrs X £4200 for Z (25 008 907)
33. Within two months of the date of the decision on this complaint, the Council should:
• Provide details of the measures it has put in place to prevent delays in the annual review and direct payment decision process in the future.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. 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