Summary: The Council delayed carrying out Ms X’s child, Y’s, annual review and then delayed issuing the amended Education, Health and Care plan. The delay totalled two years. It caused Y to miss six terms of the provision in their Plan and Ms X significant distress, frustration and time and trouble. The Council has since put Y’s provision in place. It has agreed to apologise and make a payment to Ms X to recognise the impact of the delay and missed education.

The complaint

1. Ms X complained the Council delayed carrying out the annual review of her child, Y’s, Education, Health and Care (EHC) Plan and then delayed issuing the agreed amended EHC Plan following the review. She also complained the Council failed to communicate with her during the process. She says this has resulted in Y missing out on an Education other than at School (EOTAS) package, impacting his development and educational progress. She also says this has caused her a prolonged period of distress and time and trouble chasing the Council for a response. She wants the Council to implement Y’s EOTAS package, repay her for provision she has funded, and compensate her for the impact of its failings.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
3. 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)
4. 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

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. Part of Ms X’s complaint is late because it concerns council actions that happened more than 12 months before she complained to us. However, during this time the Council assured Ms X it was taking steps to resolve the delays with Y’s EHC Plan. Because of this I do not consider it was reasonable for Ms X to complain to us sooner. I have decided to investigate events from April 2023, when Ms X first asked for a review of Y’s EHC Plan.

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How I considered this complaint

7. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
8. Ms X and the Council have 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

The Law

Education, Health and Care (EHC) Plans

9. A child or young person with special educational needs may have an Education, Health and Care (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. 

Maintaining the EHC Plan

10. 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)  
11. 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. 

Reviewing EHC Plans

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 discontinue 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.

Personal Budgets

15. 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.
16. 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.
17. 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.
18. 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.
19. The council’s (and health commissioning body’s where relevant) duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.

Elective Home Education

20. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

Background

21. The Council issued an EHC Plan for Ms X’s child, Y, in July 2021. The Council carried out an annual review of Y’s EHC Plan in May 2022. Ms X said Y was unable to attend school by this time and she decided to electively home educate Y.

What happened

22. In April 2023 Ms X asked the Council when Y’s annual review would take place. She said due to a change in her personal circumstances she could no longer electively home educate Y and fund the provision in their EHC Plan. Ms X chased the Council for an update on the review in July and August 2023. The Council assured her it would arrange the review.
23. In December 2023 Ms X complained to the Council about the delay in arranging the review. In its response the Council accepted it had failed to respond to Ms X’s request and Y’s annual review was overdue. It apologised and said it would be in touch in January to arrange the review.
24. Y’s annual review meeting took place on 8 May 2024. Ms X requested an Education other than at School (EOTAS) package for Y. Following the meeting Ms X submitted further paperwork and chased the Council for an outcome. The Council did not respond to Ms X and she complained again in July 2024. She said the Council had still not completed Y’s annual review and she could not continue to electively home educate Y.
25. In August 2024 the Council said it was making changes to Y’s EHC Plan. It then responded to Ms X’s complaint. It said the annual review was delayed as it had not submitted the required paperwork until July 2023 and the paperwork was not looked at by its SEND staff until 23 July 2024. It again apologised for failing to meet the annual review timescales.
26. The Council issued EHC Plan amendment notices on 8 October and 21 October 2024. In November 2024 it said it needed the input of an Educational Psychologist (EP) to inform the content of the amended EHC Plan. The EP visited Y on 29 November 2024 and sent the Council their report on 16 January 2025.
27. On 19 February 2025 the Council issued a further amendment notice. It agreed to EOTAS provision for Y and asked Ms X to submit a proposed EOTAS timetable. Ms submitted the information on 23 February 2025. The Council made no further contact with Ms X and she complained to the Ombudsman in April 2025.
28. On 9 June 2025 the Council’s SEND Panel considered the personal budget for Y’s EOTAS provision. The Panel approved the request; however, it incorrectly stated Y’s horse-riding cost £20 a week when it should have been £40 a week. On 24 June 2025 the Council issued an EOTAS direct payment agreement with an increased personal budget. Ms X asked for clarification over what the budget covered. On 1 July 2025 the Council said it had referred the correct amount for horse riding lessons back to its SEND panel.
29. The Council issued Y’s final EHC Plan on 3 July 2025, 14 months after the annual review. The Plan said Y’s placement was a local mainstream school, but their parents had decided to electively home educate. It said Y would receive EOTAS provision from September 2025. Ms X contacted the Council asking it to correct the error.
30. The Council sent Ms X an updated direct payment form at the end of July but still did not clarify what the budget covered. Ms X again sought clarification but received no reply. She returned the form on 4 August 2024 but mistakenly signed the form in the wrong place.
31. On 4 September 2025 the Council issued an amended final EHC Plan removing references to elective home education. Ms X complained to the Council again about delays in the funding for Y’s EOTAS provision and transport costs to Y’s provision. She said Y had missed out on a swimming place because of the payment delay. The Council responded a few days later. It said the delays were because Ms X had not completed the forms correctly, which it would resolve immediately. It accepted it should have noticed the error sooner. It also accepted it had failed to communicate effectively over Y’s transport costs but had now done so. Ms X returned correct direct payment forms on the same day.
32. In response to our enquiries the Council accepted delays in the review process and said Y’s funding package was now in place, including travel costs. It said it was currently restructuring its SEND team and implementing an improvement plan to address the issues Ms X had faced.

My findings

33. Y’s annual review was due in May 2023. The Council did not carry out the annual review until May 2024, a delay of 12 months. This was fault. Following the annual review the Council should have issued an amendment notice within four weeks and a final EHC Plan within another eight weeks. The Council took 22 weeks to issue the amendment notice and then a further 38 weeks to issue Y’s final EHC Plan. This was fault, with a delay of nearly another 12 months. This caused Ms X severe distress, uncertainty and time and trouble.
34. The Council issued Y’s amended EHC Plan on 3 July 2025, nearly two years after it should have done. Ms X made it clear in April 2023 she could no longer electively home educate Y and was struggling to afford to pay for Y’s provision. While the Plan issued in July 2025 specified mainstream school until September 2025, the content was EOTAS focused, the Council had not consulted with any schools, it’s SEND panel had approved an EOTAS budget and the EP had recommended EOTAS. I therefore do not consider it reasonable for Ms X to have appealed the July 2025 EHC Plan as all indications were the Council intended to specify EOTAS in the plan and the naming of a mainstream school was an administrative error.
35. Direct payments for the EOTAS provision specified in Y’s EHC Plan, and Ms X’s travel costs, are now in place. These should have been in place by the start of the Autumn term 2023 at the latest. The Council provided no education or provision during this time. Y has missed out on six terms of EOTAS provision because of fault by the Council. We typically recommend between £900 and £2400 per term in recognition of lost provision. The figure can be lower when considering any educational provision made during the period and whether additional provision can remedy some or all of the loss.
36. Considering Y’s age and the provision in their EHC Plan, I have recommended £1200 a term for the missed special educational provision, in line with our Guidance on Remedies.
37. The Council has explained the efforts it is making to resolve the delays in its annual review process. Because the Council is already taking suitable steps to address the delays, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Action

38. Within one month of the final decision the Council has agreed to:
1. Apologise to Ms X for the impact of the two year delay carrying out Y’s annual review and amending their EHC Plan. 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.
2. Pay Ms X £7,200 to recognise the impact of two years missed provision on Y. This is £1,200 a term for six terms of missed provision.
3. Pay Ms X an additional £500 to recognise the distress, frustration and time and trouble she has faced in pursuing the matter for over two years.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman