Summary: The Council delayed issuing Mrs X’s child, Y’s, Education, Health and Care (EHC) Plan following an annual review, failed to ensure Y received all the provision in their EHC Plan and failed to clearly explain payments made into Y’s personal budget. The Council has agreed to apologise to Mrs X and make payments to acknowledge the missed provision and frustration she was caused by the delays and budget issues. It has also agreed to write to Mrs X clearly setting out the payments made and how they relate to Y’s personal budget as set out in their Plan.

The complaint

1. Mrs X complained the Council:
• delayed finalising her child, Y’s, Education, Health and Care (EHC) Plan after an annual review.
• failed to ensure they received all the provision set out in their Plan. Specifically, it did not provide the full five hours of provision set out in Y’s Plan for physical education and social/communication skills throughout the 2024/25 school year.
• failed to clearly set out and provide the funding for Y’s EHC Plan. It has made irregular payments into the account without explaining what they were for.
2. Mrs X says this has caused her significant frustration and the lack of provision has impacted Y’s health.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), 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. 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.
7. 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)
8. 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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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance and considered our guidance on remedies published on our website.
10. I gave Mrs X and the Council an opportunity to comment on a draft of my decision. I considered any comments before I reached a final decision.

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What I found

Relevant law and guidance

EHC Plans

11. 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 which include section F: the special educational provision needed by the child or young person, section I: the name or type of educational establishment and section J: details of any personal budget required to fund the provision in the EHC Plan.
12. 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. 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.
13. 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)  
14. Case law (Derbyshire CC v EM and DM (SEN) [2019] UKUT 240 (AAC) sets out that where a child or young person requires full time ‘education otherwise than in school’ (EOTIS, sometimes known as EOTAS) at home, the special educational provision and EOTIS package should be set out in section F. Section I should be left blank, as there is no setting to be attended.

Annual reviews

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. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews.
16. 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.

What happened

17. Y has a physical health condition which affects their lungs, attention deficit hyperactivity disorder (ADHD) and autism spectrum disorder (ASD). Y has an Education, Health and Care (EHC) Plan. Y received a personal budget for a package of education otherwise than in school (EOTIS). Y’s personal budget was set out in detail in the Plan. This included 12 hours of tuition and ‘5 hours per week support for physical education and social/communication skills’ both of which were to be sourced and paid for directly by the Council. The personal budget to be paid to the parent as a direct payment for the rest of Y’s support totalled around £11,000. This included payment for two hours a week for 39 weeks at a fitness provider sourced by Y’s mother, Mrs X. Mrs X says the Council paid around £11,000 into the EOTIS account in April 2024.
18. The following is a summary of the key events relevant to this complaint.
19. The Council arranged an annual review of Y’s EHC Plan in June 2024.
20. In July 2024 Y’s Physical Education (PE) tutor left. Mrs X emailed the Council in July 2024 requesting an update following the annual review and was told the Plan would be amended. Mrs X emailed again in August 2024 requesting an update of when funding would be arranged for the additional items agreed at the annual review. In late August 2024 the Council sent Mrs X a draft amended Plan.
21. In September 2024 the Council paid £6,097.98 into Y’s EOTIS account. In October 2024 the Council paid another £1,016.33 into the EOTIS account. Mrs X contacted the Council to request an explanation of the funds provided and requested the final EHC Plan.
22. In mid-October 2024 the Council told Mrs X the funding paid in September 2024 was to cover the period from 1 April 2024 onwards. It said she would then receive £1,016.33 per month.
23. Mrs X complained to the Council in early February 2025. She complained about the Council’s failure to ensure Y received the PE provision set out in their Plan, the delay in issuing Y’s final EHC Plan following the annual review and that she had been sent two random payments as part of Y’s direct payments without any explanation of what they were for. She said the funding provided made no sense whatsoever.
24. The Council responded later that month. It said it reconfigured its special educational needs team in September 2024, and Y transferred to the EOTIS team. It accepted it had delayed finalising Y’s EHC Plan and said it had sent the final EHC Plan on 12 February 2025. It said there was some confusion regarding the direct payment/personal budget. It said it had set up two different invoice payment plans with £1,530.40 to be paid each month until June 2025. It agreed to explore the rationale around the other amounts and would update Mrs X. It said it was awaiting a tutor to provide the five hours PE provision. It said it had arranged a tutor providing two hours from early January 2025 with a second due to start providing three hours a week from later that month. It did not uphold her complaint.
25. Mrs X remained unhappy. She said the Council provided none of the five hours PE provision between September and December 2024 and she did not understand how it did not uphold her complaint about the delay in issuing the final EHC Plan. The Council considered her complaint at the second stage of its complaints’ procedure in April 2025.
26. It apologised the stage one response did not address all her concerns and for the delay in issuing Y’s final EHC Plan. It said it was now providing four hours of PE provision per week for Y. In addition, it said Y received funding for two hours additional provision per week at a fitness provider. It therefore considered Y was receiving five hours of provision per week. It explained the Council had made a payment to the direct payment account for the period April to October 2024. It said Y’s personal budget was £12,196.01. It was looking into why this was lower than that set out in the final EHC Plan (which was £12,879.95). However, it understood there was a surplus in the previous year’s budget so there was adequate funding for payment of Y’s provision.
27. It said it would remind all complaint investigating managers to ensure the findings reflected the statement of complaint given and that the stage one complaint response should address each point raised within the complaint. It said the SEN team would contact Mrs X to confirm whether any changes were required to the direct payment.
28. Mrs X remained unhappy and complained to us.

Findings

29. The Council delayed finalising Y’s EHC Plan following the annual review in June 2024. It issued the Plan 34 weeks after the annual review. It should have been issued within 12 weeks of the annual review meeting. This delay was fault.
30. During this period the Council did provide Mrs X with additional funding. However, the delay caused Mrs X frustration and uncertainty over what payments had been agreed. It also delayed Mrs X’s right of appeal had she disagreed with the provision in the Plan.
31. The Council failed to ensure Y received the five hours of PE provision set out in their Plan between September and December 2024. This was fault. From January 2025 it provided between three and four hours through the rest of the 2024/25 school year. In the complaint response it stated that as Y also received two hours a week at a fitness provider it had met the requirement for five hours of provision per week. This is fault. Y’s EHC Plan specifically included five hours per week support for physical education and social/communication skills and two hours a week at a fitness provider. Y was therefore meant to receive seven hours of such provision in total.
32. Mrs X believes the lack of provision has affected Y’s lungs due to their physical health condition. Even on balance I could not conclude what, if any, impact, this lack of provision directly had on Y’s health. However, the Council’s fault meant Y missed out on provision they were meant to receive, particularly given Y’s physical health condition, and which was set out in their EHC Plan.
33. The Council has paid money into Y’s EOTIS account which does not clearly correlate to the direct payment amount set out in their EHC Plan. The complaint responses refer to different totals and monthly payments. This lack of clarity is fault which has caused Mrs X confusion and frustration over whether the personal budget is right or the Council has overpaid.
34. In March 2025, as a result of a separate complaint made to us, the Council provided us with an action plan detailing the action it is taking to reduce the delays in drafting and issuing final amended EHC Plans following annual review meetings. I have therefore not made a recommendation for a service improvement. However, we will continue to monitor the Council’s performance through our casework.

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Agreed Action

35. Within one month of the final decision the Council has agreed to:
1. Apologise to Mrs X for the frustration she was caused by the Council’s faults. 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 Mrs X £800 to acknowledge the missed PE/social and communication provision set out in Y’s EHC Plan.
3. Pay Mrs X £200 to acknowledge the frustration she was caused by the delay in issuing Y’s final EHC Plan and the Council’s failure to clearly explain its payments into the personal budget.
4. Write to Mrs X setting out the payments it has made to her since April 2024 and how these relate to Y’s direct payment personal budget set out in their EHC Plan.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I found fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman