Summary: Miss X complained the Council did not provide the provision outlined in her child’s Education Health and Care Plan. She says this impacted her child’s education and emotional wellbeing. We find fault with the Council which caused injustice. The Council will secure the provision and apologise to Miss X to remedy the injustice.

The complaint

1. Miss X complains about the Council’s handling of her child’s Education Health and Care (EHC) Plan. Specifically, she complains the Council:
1. Did not issue the EHC Plan in line with the statutory timescale;
2. Did not properly consider her personal budget request;
3. Did not provide her child with the provision in the EHC Plan and
4. Did not consider all relevant information in its annual review of the Plan.
2. Miss X says this impacted her child’s education and their emotional wellbeing. She says it also caused her avoidable and unnecessary stress and financial strain.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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)
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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. 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)
9. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.

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What I have and have not investigated

11. Miss X complains about matters which began in January 2024. Miss X complained to the Ombudsman in May 2025. As I have said above, we cannot investigate matters which began more than 12 months before someone brings their complaint to us unless there is good reason. I consider Miss X could have brought her complaint to us sooner, and therefore I will not exercise discretion. I have investigated matters from May 2024, as this is 12 months before Miss X brought her complaint to us.
12. Miss X complains the Council did not properly consider all relevant information when reviewing Y’s EHC Plan. She says this meant the EHC Plan did not accurately reflect Y’s needs. This is appealable to the Tribunal. I consider it is reasonable for Miss X to use her right to appeal. Therefore, I have not investigated part d of the complaint.
13. I have investigated parts a, b and c of the complaint from May 2024.

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How I considered this complaint

14. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
15. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
16. 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 found

What should have happened

Statutory timescale (part a of complaint)

17. 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. 
18. 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) 
19. 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 budget (part b of the complaint)

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. 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.
22. 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.

Provision (part c of the complaint)

23. 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)  
24. 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. 

What happened

25. Y moved to Dorset Council ‘the Council’ with an EHC Plan completed by their previous council, ‘Council B’. Council B issued the Plan in early January 2024 and sent a copy to the Council in late January. The Plan said Y should be educated in a residential specialist school for 52 weeks per year. It said Y should receive an Education Other Than At School (EOTAS) package whilst the Council arranged a suitable residential placement. It detailed 15 hours of tutoring per week and ten hours of personal assistant support per week. It also detailed Y should receive weekly Speech and Language Therapy and weekly Occupational Therapy which would be reviewed and reduced if Y did not engage.
26. Prior to May 2024, the Council discussed an offer from an alternative provision provider with Miss X. She told the Council it did not meet Y’s needs and declined the provision.
27. By May 2024, the Council had not successfully consulted a residential placement. Y was not accessing any education.
28. In late May, the Council discussed an offer from another alternative provision provider with Miss X. She told the Council it was did not meet Y’s needs and declined the provision.
29. In June, the Council issued a finalised reviewed EHC Plan. The Plan detailed the same placement and provision as the Plan completed by Council B. It initiated a second national search for a suitable residential special school placement for Y. The Council made the full Occupational Therapy provision available to Y.
30. In July, the Council arranged an EOTAS package for Y. It approved the personal budget request for 15 hours tutoring and 10 hours personal assistant support with Miss X’s chosen professional. It agreed the personal budget until December 2024 when it would be reviewed. It showed consideration to exploring other educational options for Y because the full time residential special school consultation had not been successful so far. The Council made the full tutoring and personal assistant provision available to Y.
31. In October, the Council approved a backdated payment for the tutoring and personal assistant invoices for July and August. The Council noted Y had not engaged with Occupational Therapy and Miss X declined the Council’s offer to consult for a term time residential special school placement. The Council told Miss X it was going to contact her preferred Speech and Language Therapist. She told the Council she did not want it to contact the Speech and Language Therapist until the finalised Plan was issued. She withdrew her consent. The Council did not contact the Speech and Language Therapist.
32. In mid-February 2025, the Council held an annual review meeting.
33. Miss X gave the Council her consent for the Council to contact her preferred Speech and Language Therapist.
34. In March, the Council submitted a personal budget request to its panel to approve funding for the 15 hours tuition and 10 hours personal assistant support. Miss X complained she had not received a draft Plan, and its personal budget request was made without her agreement using outdated information.
35. The Council told Miss X it made the personal budget request to its panel to ensure Y had their tutoring and personal assistance provision without any gaps. It told her it had provided all paperwork from the February 2025 annual review in its request. The panel approved funding all provision until December 2025.
36. In early April, the Council sent Miss X a copy of the draft EHC Plan with the proposed amendments.
37. In late April, the Council responded to her complaint.
38. To date, the Council has not arranged Speech and Language Therapy for Y

Analysis

Statutory timescale (part a of complaint)

39. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Case law says when a council decides to amend an EHC Plan, it should send parents a copy of the proposed changes within four weeks of the review meeting. The review meeting was in mid-February 2025. The Council should have sent Miss X the proposed changes by mid-March. It sent a copy of the proposed changes in early April. I do not consider this delay to be significant enough for a finding of fault.
40. Statutory guidance says councils must arrange for the EHC Plan to be reviewed at least once a year. The Council should have issued its final EHC Plan by June 2025. The Council’s delay is fault which caused Miss X some avoidable uncertainty.

Personal budget (part b of the complaint)

41. Miss X complains the Council processed a personal budget request without her agreement in March 2025 and relied on outdated information in its decision-making. The Council made the request on her behalf to ensure Y continued to have access to the interim EOTAS package using Miss X’s preferred tutor and personal assistant. The Council provided its panel with updated information from the current annual review. I am satisfied the Council considered all relevant information in its decision-making. I find no fault with the Council.

Provision (part c of the complaint)

42. The Council should secure the provision set out in the Plan. The EHC Plan named a 52-week residential special school placement. I am satisfied the Council made consistent efforts to secure a suitable residential special school placement for Y. The results of the Council’s national search identified several potential suitable residential placements which were for term time only, rather than full time. Therefore, the Council was unable to fulfil the provision named in the Plan. I consider this to be service failure, which is fault.
43. Miss X declined to explore term time residential placement options. Miss X also requested the Council fund her preferred tutor and personal assistant in the EOTAS package. The cost per hour of the professional chosen by Miss X meant Y accessed less educational provision than they would have done using the Council’s preferred professionals. For these reasons, I consider the Council’s failure to secure the full-time residential placement did not cause Y injustice.
44. The EHC Plan said the Council should arrange an interim EOTAS package for Y whilst it continued to secure the residential placement. It arranged the alternative provision package for Y at the beginning of July 2024. Y did not have access to education in May and June 2024. The Council offered an alternative provision provider before May 2024, and another in May 2024 and Miss X declined both. The alternative provision options provided by the Council did not offer the full provision outlined in the EHC Plan, however I am satisfied the Council considered both providers would have offered a suitable interim EOTAS package and would have been beneficial to Y and met their needs, age and aptitude. Had Miss X accepted either provider, Y would have had access to some education provision during this time. Therefore, I consider Miss X’s decision to decline both providers contributed to the injustice to Y. I find no fault with the Council.
45. The Council delayed arranging the Occupational Therapy for Y which meant Y did not have access to Occupational Therapy in May 2024. This delay is fault. However, once the Council arranged Occupational Therapy, Y did not engage with the service. Y benefitted from indirect Occupational Therapy, as Miss X and Y’s tutor received guidance and activities to support Y. For this reason, I consider the one-month delay caused some limited injustice to Y.
46. The Council did not arrange Speech and Language Therapy for Y. This is fault. In consideration of Y’s lack of engagement with Occupational Therapy, I consider on balance, it was also unlikely Y would have engaged with Speech and Language Therapy if it had been available. The EHC Plan stated if Y did not engage with the provision, it would have been reduced. In any case, once the Council told Miss X it was going to arrange the provision, she withdrew her consent. For these reasons, I consider fault by the Council did not cause Y to miss out on provision.

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Action

47. Within four weeks of our final decision, the Council has agreed to:
1. consider what action it needs to take, if any, to address any shortfall in provision and missed opportunity to Y caused by its delay issuing the finalised EHC Plan.
2. provide a written apology to Miss X and Y for avoidable uncertainty caused by its delay issuing the final EHC Plan and the impact to Y by not providing the Occupational Therapy set out in their EHC Plan for one month.
48. Within three months of our final decision, the Council will secure the Speech and Language Therapy provision set out in Y’s EHC Plan.
49. 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.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. 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