Summary: Mrs X on behalf of Mx Y complained the Council failed to provide the provision in Mx Y’s, Education, Health and Care (EHC) Plan following a Tribunal order. The Council was a fault for a delay totalling three terms in securing the required provision, requiring Mrs X to administer a personal budget to arrange the required provision and delaying an annual review. The Council agreed to apologise and makes a payment to recognise the injustice caused to Mx Y and Mrs X. It has also agreed to makes changes to its service to prevent the same fault from happening.

The complaint

1. Mrs X on behalf of Mx Y complained the Council has failed to deliver provision in line with their EHC Plan after a Tribunal (SEND) Order.
2. She says this has caused Mx Y to miss out on necessary provision to meet their needs causing distress, frustration and uncertainty.
3. She says that she had to agree to a pre-pay card to arrange provision for Mx Y herself. She says this has caused her distress, frustration, uncertainty, time and trouble. She wants the Council to take back the responsibility for the administration of Mx Y’s provision.

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The Ombudsman’s role and powers

4. 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)
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 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 relevant available 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, Mx Y and the Council as well as relevant law, policy and guidance.
10. Mrs X, Mx Y 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

Relevant law and guidance

Special educational provision

11. A child or young person with Special Educational Needs (SEN) 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.
12. 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 (Children and Families Act 2014, section 42).

SEND tribunal

The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs and EHC Plans. We refer to it as the Tribunal in this decision statement.

13. Parents and young people can appeal the contents of an EHC Plan to the Tribunal. Where a council has been ordered by the Tribunal to amend the special educational provision specified in the EHC plan, the council must issue the amended EHC plan within five weeks of the order being made. (Regulation 44 of the Special Educational Needs and Disability Regulations 2014)
14. Case law has established councils have a legal duty to secure the special educational provision in an EHC Plan by the time the amended final EHC Plan is issued following an appeal to the Tribunal. (BA, R (on the application of) v Nottinghamshire County Council [2021] EWHC 1348 (Admin)).

Education Other than in School or College (EOTISC)

15. A council may arrange for any special educational provision that it has decided is necessary for a child or young for whom it is responsible to be made otherwise than in a school of college. A council can only do so if it is satisfied that it would be inappropriate for the provision to be made in a school or college. (Children’s and Families Act 2014, section 61)

Personal budgets

16. 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.
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. The council’s 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. Code of practice 9.97
19. A council must stop making direct payments if the recipient has notified it in writing that they no longer consent to receive the direct payments (Children’s and Families Act 2014, section 49 and SEND Code of Practice 9.97).

What happened

20. Mx Y is a young adult of college age with SEN. At the beginning of October 2024, the Tribunal ordered the Council to amend Mx Y’s EHC Plan.
21. Following the tribunal order the Council issued Mx Y’s amended final EHC Plan in early November 2024. Section F, in line with the Tribunals order, required the Council to:
• identify a named keyworker with experience of coordinating educational provision to coordinate delivery of Mx Y’s special educational provision other than in school or college (EOTISC);
• source a suitably qualified professional (speech and language therapist (SaLT)) to provide 60 minutes per week of social, communication and interaction support;
• provide an educational psychologist (EP) to advise in the use of technology, planning and recording of longer pieces of work and provision of the relevant assistive technology in accordance with this advice;
• ensure the provision of study and self-organisation skills;
• ensure the provision of accredited GCSE English and Math as well as a course of Mx Y’s own choosing, such as British Sign Language. To start in September 2024 at one hour per week of each subject.
• ensure the provision of A-level psychology for one hour per week from summer term 2025;
• ensure the provision of 90 minutes of sensory integration therapy, daily, hourly deep pressure activities and weekly 60 minutes of a structures exercise activity;
• ensure the provision of seven session of 1:1 nutritional education;
• ensure the provision of occupational therapy (OT), twice a year for a total of six hours;
• produce a reintroduction plan back into education including commencing GCSE History and GCSE Science from September 2025; and
• ensure the provision of weekly sessions by an appropriate therapist for support in body awareness and emotional regulation.
22. In early November 2024, the Council contacted Mrs X, it said:
• she needed to set up direct payments to keep the tutors that were already working with Mx Y;
• it was looking for a Speech and Language Therapist and an A-level psychology tutor for Mx Y; and
• The Council would be facilitating the professionals as part of the EOTISC package. Mrs X should send any invoices for sessions and materials to ensure reimbursement.
23. In December 2024 the Council provided an update to Mrs X regarding Mx Y’s EOTISC package and asked for her comments. It was established:
• GCSE English and maths were in place and part of a personal budget agreed by Mrs X;
• bodily awareness and counselling had been organised but were waiting to be set up on the payment system;
• nutritional education sessions had not started as they required payment; and
• Occupational therapy, EP led assistive technology/methods and A-level psychology remained outstanding.
24. At the beginning of January 2025, Mrs X contacted the Council and said she had arranged to meet with the A-level psychology teacher the Council had identified. She also provided the Council with details of assistive technology, occupational therapy and Speech and Language Therapy providers she had found herself.
25. At the end of January 2025, the Council contacted Mrs X and said it wanted to arrange a meeting to go through the providers she had suggested and ensure a robust personal budget was in place ahead of the annual review.
26. In March 2025, Mrs X contacted the Council and asked for an update. She said the Council sourced A-level psychology tutor did not have capacity and therefore this provision remained outstanding.
27. The Council advised it did not have any further responses from other A-level psychology tutors and was not sure what else it could do to put this provision in place. It made internal enquiries to try and resolve this and said:
• Mrs X had made it clear at Tribunal that she wanted the Council to commission Mx Y’s provision and did not want a personal budget. Mrs X had said if it was easier she would have a pre-payment card so that she could try and set up providers herself;
• It had been unable to find tutors for Mx Y due to procurement rules, and this had caused delays; and
• Mrs X had complained tutors were not in place for Mx Y and although not possible, had offered to teach Mx Y’s A-level psychology herself.
28. In March 2025, Mrs X complained to the Council, she said the Tribunal Order stated the Council was responsible for providing Mx Y’s education in accordance with the terms of the EHC Plan and the following provision was still outstanding:
• Mx Y did not have an allocated key worker to coordinate their EOTISC package;
• she had informed the Council that the A-level psychology tutor it had sourced was not able to provide Mx Y’s provision but had received no reply;
• there had been no action regarding another tutor for a subject of Mx Y’s choosing;
• the Council had advised it was struggling to source SaLT provision, and she had not received any update on this;
• she had not received an update on an educational psychologist to support with assistive technologies since January; and
• she had needed to source the occupational therapist (OT) to support Mx Y with their sensory needs.
29. In its response the Council apologised for the missed provision and said:
• it was struggling to find suitable providers, particularly an A-level psychology tutor as this was not something the Council had previously commissioned. If Mrs X wanted to teach this herself, it would need to be done through elective home education (EHE);
• a key worker had been allocated, who was working to ensure the EOTISC package was in place;
• it understood Mx Y had chosen History as their other subject and this was not yet in place;
• SaLT, an EP to work on assistive technologies and OT remained outstanding; and
• Mrs X had agreed with the key worker to use a prepay card to pay providers as this was easier and quicker.
30. At the start of April 2025, Mrs X escalated her complaint as the provision in Mx Y’s EOTISC package she had previously identified remained outstanding.
31. At the beginning of May 2025, a tutor was commissioned and Mx Y began studying A-level psychology.
32. In mid-May 2025 Mx Y began studying their subject of choice, History.
33. At the end of May 2025, Mrs X requested an update from the Council for an educational psychologist to provide an assessment in the use of assistive technologies for Mx Y. She provided the Council with the details of other providers if the organisation she had proposed at the beginning of April was unable to help.
34. In mid-June the Council made enquires with the potential assistive technology provider, who’s details Mrs X had shared with it at the beginning of April. On the same day it contacted Mrs X to provide an update, it said it was awaiting a response from the provider.
35. At the end of June 2025, the Council asked Mrs X to pay for Mx Y’s assistive technology assessment on the prepay card as it was unable to raise an invoice due to procurement rules. It also asked for a meeting with Mrs X to ensure that no provision remained outstanding as per the Tribunal Order.
36. During our investigation Mrs X said:
• she had not received a response from the Council to her stage two complaint;
• she had given up on SaLT being provided for Mx Y;
• she was still responsible for paying for Mx Y’s provision through a pre-pay card. She had made it clear, and the Tribunal had acknowledged, that she did not want a personal budget. However, she was continuing to agree to it as she was worried Mx Y’s provision would stop if she did not;
• she wanted the Council to take responsibility for the administration of Mx Y’s education; and
• an annual review of Mx Y’s EHC Plan had taken place in March 2026 with a final amended plan yet to be issued.

Analysis

37. Following the tribunal order in October 2024 the Council issued Mx Y’s amended final EHC Plan in November 2024, which was within the statutory five-week timescale.
38. The Council should have ensured the provision outlined in section F was in place from the point it issued Mx Y’s final EHC Plan in November 2024. In April 2025, it acknowledged that areas of Mx Y’s provision remained outstanding. The cumulative delay to August 2025 was 38 weeks or three terms, with SaLT still not secured at the time of Mrs X’s complaint to us. Mx Y missed out on the following provision:
• Subject of their choosing for one and a half terms;
• Educational Psychologist support with assistive technology for two and a half terms; and
• Occupational Therapy for one and half terms; and
• SaLT for three terms (one academic year).
39. The delays in securing Mx Y’s provision as outlined in section F of their EHC Plan is fault. The fault caused a loss of provision and Mx Y and Mrs X distress, frustration and uncertainty.
40. Mx Y’s annual review should have taken place by November 2025. The Council did not start the review until March 2026 which was a delay of four months. This was fault, frustrating Mrs X’s appeal rights. At the time of investigation, a final plan for Mx Y had not been issued.
41. It is clear from the Tribunal Order, Mrs X’s correspondence with the Council and her complaint that she wanted the Council to commission Mx Y’s provision directly. Mrs X did not want the responsibility of managing a personal budget and sourcing the provision herself. Whilst it is acknowledged that Mrs X agreed to the use of the prepay card to arrange and pay providers this was only due to her concerns around provision stopping if she did not. Mrs X made it clear from March 2025 that despite agreeing to the personal budget, she wanted the Council to administer Mx Y’s EOTISC package. I have not seen any evidence to show the Council considered this request. This is fault causing unnecessary distress and frustration and meant Mrs X has been required to continue managing the personal budget
42. Mrs X did not receive a reply to her stage two complaint. This was fault causing uncertainty and frustration.

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Action

43. To remedy the injustice caused, within one month of the final decision the Council agreed to take the following action:
1. apologise to Mrs X and Mx Y for the injustice caused to them by the failings identified during this investigation. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. pay Mrs X £2,250 to recognise Mx Y’s loss of educational provision as set out in their EHC Plan between November 2024 and August 2025. This payment takes into account the provision Mx Y received across the academic year. It also recognises the distress, frustration, uncertainty, time and trouble caused to Mrs X and Mx Y by the Councils actions regarding Mrs X request for it to administer Mx Y’s provision, her delayed appeal rights and its poor complaint handling.
3. reconsider Mrs X’s request for the Council to manage the personal budget for Mx Y’s provision.
44. Within three months of our final decision, the Council agreed to take the following action:
1. Produce an action plan to include:
1. relevant Council staff are reminded, through training or a staff briefing, of the legal duty to ensure the child or young person’s special educational provision in their EHC Plan is in place from the point it issues an amended EHC Plan following a tribunal order.
2. a review of its commissioning arrangements of educational psychologists, occupational therapists and speech and language therapists to ensure it has sufficient capacity to provide EOTISC provision without delay.
3. a review of its policy relating to the use and monitoring of personal budgets to ensure:
1. practices are clear to ensure those in receipt of a personal budget understand the administration responsibilities before giving consent; and
2. personal budgets are only used where agreed and there is a clear process when a recipient no longer wishes to receive one.
45. The Council will provide us with evidence it has complied with the above actions.

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Decision

46. I found fault causing injustice

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Investigator's decision on behalf of the Ombudsman