Summary: The Council delayed issuing an amended Education Health and Care Plan for Mr X’s child, Y. It also failed to make direct payments to Mr X for Y’s Special Educational Needs provision. This meant Mr X had to pay for the provision himself and caused Mr X uncertainty and time and trouble pursuing the matter. The Council has agreed to apologise, make a payment to Mr X and review what went wrong in this instance.

The complaint

1. Mr X complained the Council failed to make direct payments for his son, Y’s, Special Educational Needs (SEN) provision between September and November 2024. Mr X says the Council told him it would honour invoices he paid to continue the provision after the Council stopped the direct payments. He wants the Council to reimburse the money and apologise.

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The Ombudsman’s role and powers

2. 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)
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. 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.
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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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr X and the Council have had an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

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What I found

Education, Health and Care (EHC) Plans

8. 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. 
9. 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)
10. 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.
11. 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.
12. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan. This includes amendment to these elements of an EHC Plan.
13. 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

14. Mr X’s son, Y, had an EHC Plan issued in October 2023. The provision in the Plan included:
• 6 x 1 hour of Occupational Therapy (OT)
• 10 x 1.5 hours of Speech and Language Therapy (SaLT)
15. The Council agreed to pay Mr X direct payments for the provision and issued a direct payment agreement in December 2023. The Council then carried out an annual review of Y’s EHC Plan on 11 December 2023 but did not issue an amendment notice or decision letter immediately following the review.
16. During the spring and summer terms in 2024 Mr X used the direct payments to commission OT and SaLT for Y. Mr X contacted the Council in September 2024 enquiring about Y’s final EHC Plan. He chased the Council again in October 2024. He said the Council had not made any direct payments for Y’s OT or SaLT since June 2024. He added that Y’s next annual review was due. The Council replied immediately and set up a call to discuss the situation. On the call the Council said it would be issuing the amended EHC Plan within the next few days and follow up about the stopped direct payments.
17. The Council sent Mr X an email on 9 October 2024. It confirmed it would issue the EHC Plan later that week. It said it usually needed to confirm personal budgets every year, but it would honour the payments for September, October and November. It said it would then need to review the personal budget and seek approval for further payments.
18. The Council issued a notice to amend Y’s EHC Plan along with a draft EHC Plan on 11 October 2024 and issued the final EHC Plan on 25 October 2024. The new plan no longer contained SaLT provision for Y.
19. In November 2024 the Council carried out a further annual review and issued an amendment notice on 17 December 2024.
20. Mr X emailed the Council in January 2025. He queried why the Council had removed certain provision, including SaLT, and asked if he should continue to pay for private therapies for Y. In its reply the Council said the removed provision was an error and it would be added back into the EHC Plan. It said it would send the new direct payment request to its panel as soon as possible. The Council issued a revised draft EHC Plan and amendment notice the same day, this included Y’s SaLT provision.
21. In February 2025 Mr X complained to the Council. He said it had not secured the provision in section F of Y’s EHC Plan, including Y’s SaLT. He said the Council had not paid the invoices for September to November 2024 as it had promised.
22. The Council responded in March 2025. It said Y’s final EHC Plan from October 2024 did not include SaLT. It said Mr X could have appealed this Plan to the Tribunal. It accepted there had been inconsistent communication with Mr X over changes to the draft EHC Plan since. It said it would honour its commitment to pay the September to November 2024 invoices. Mr X asked the Council to escalate his complaint to stage two of its complaint procedure. He said the January 2025 amendment notice reinstated Y’s SaLT and he did not agree with the changes to the October 2024 EHC Plan.
23. The Council responded in April 2025. It said the October 2024 EHC Plan did not specify SaLT and its omission from the December 2024 amended EHC Plan was not an error. It reiterated it would honour the 2024 invoices and accepted errors in the way it had issued amendments to Y’s EHC Plan that caused confusion. Mr X remained unhappy and complained to the Ombudsman.
24. In response to our enquiries the Council accepted it had failed to pay the 2024 invoices as agreed. It also accepted it delayed issuing Y’s amended EHC Plan following the December 2023 annual review. The Council has since issued a new EHC Plan in which Mr X has appealed to the Tribunal.

My findings

25. The Council reviewed Y’s EHC Plan on 11 December 2023. It decided to amend Y’s EHC Plan and should have issued the amended final EHC Plan within 12 weeks of the review. The Council did not issue the amended final EHC Plan until 25 October 2024, 45 weeks after the review. This was fault, causing Mr X uncertainty over Y’s SEN provision and delaying Mr X’s right of appeal over the content on the new EHC Plan.
26. The Council had a duty to secure the provision in Y’s EHC Plan. In the absence of an amended EHC Plan until October 2024, this included Y’s SaLT and OT provision. The Council stopped direct payments for this provision in June 2024 without warning to Mr X. This was fault. When Mr X chased the Council for the payments it said it would honour the invoices from September to November 2024. It then repeated this assurance in its complaint responses. Despite this the Council accepted it has not yet paid Mr X for these invoices. This was fault. This meant Mr X had to pay for Y’s provision himself to ensure Y continued to receive the provision in the EHC Plan. While Y continued to receive the provision in the EHC Plan, the ending of the direct payments and delay paying Mr X caused Mr X uncertainty and time and trouble in pursuing the matter with the Council.
27. Following the issuing of the amended EHC Plan, Mr X told the Council he disagreed with the removal of Y’s SaLT provision. On balance, I am satisfied Mr X was aware of his right to appeal these changes to the Tribunal when the Council issued the amended EHC Plan in October 2024.
28. Following further amendments in December 2024, the Council accepts its communication over changes to Y’s Plan was confused. It referred to errors removing and reinstating provision which it later clarified in its complaint response. This was fault and caused Mr X further uncertainty over what SEN provision Y was entitled to.

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Action

29. Within one month of the final decision the Council has agreed to:
1. Apologise to Mr X for the impact of the delay amending Y’s EHC Plan and the uncertainty and time and trouble caused by its delay paying the 2024 invoices. 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. Ensure it pays the outstanding invoices from September to November 2024.
3. Pay Mr X £250 to recognise the impact of the delay amending Y’s EHC Plan and the uncertainty and time and trouble caused by its delay paying the 2024 invoices.
30. Within three months of the final decision the Council has agreed to:
1. Review the reasons behind the issues with the way it communicated the amendments to Y’s EHC Plan and make changes to its procedures to prevent a recurrence, ensuring it is clear which EHC Plans are draft plans and which are final.
2. Create an action plan to identify the reasons behind delays issuing amended EHC Plans. This should set out what steps the Council will take to address the delays and ensure amended EHC Plans are issued within the statutory timescales.
31. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman