Summary: Mrs X complained about the way the Council carried out the Education Health and Care Plan process for her daughter (Y). She also complained about the Council’s delays in arranging education and special educational provision for Y and the Council’s actions in response to her Personal budget request. We found fault with the Council for the delay in arranging special educational provision for Y, as well as for the delays and failings with the Annual Review and the Personal budget process. The Council’s fault caused injustice to Y and Mrs X. The Council has agreed to apologise and make payments to Mrs X to recognise her and Y’s injustice. The Council has also agreed to review its record keeping.

The complaint

1. Mrs X complains about the Council’s:
• delays in her daughter’s (Y) Education, Health and Care (EHC) needs assessment and EHC Plan process;
• delays in arranging special educational provision for Y;
• failure to arrange suitable education for Y;
• withdrawing therapeutic support from Y in February 2025;
• unlawfully refusing a Personal budget for Y.
2. Mrs X says the Council’s failings impacted Y’s mental health. They also caused, she says, financial strain to the family and affected other aspects of the family life.

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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. 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)
5. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended)
6. 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)
7. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
8. 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)
9. 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

10. I have not investigated the way the Council carried out Y’s EHC needs assessment and issued her EHC Plan. This is because the Council issued Y’s first EHC Plan in December 2022, so two and a half years before Mrs X came to us. As pointed out in paragraph six of this decision we would normally investigate events which happened within 12 months from when the complainant came to us. There are no sufficient reasons to justify such a long delay in complaining.
11. I have decided to extend my investigation about educational provision for Y to November 2023, when the Council reviewed Y’s EHC Plan. This is because it would be difficult to determine the extent of the Council’s failings and any injustice caused by them without looking at what happened at the review.
12. I did not investigate anything that happened after the Council provided its final response to Mrs X’s complaint at the beginning of May 2025. This is because, as pointed out in paragraph seven, the Council should have an opportunity to respond to any issues before we can look at them. If Mrs X is unhappy with anything that happened after the beginning of May 2025, she would need to raise it with the Council first.

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How I considered this complaint

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

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What I found

Law and guidance

EOTAS

15. A council may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school. (Children and Families Act 2014 section 61(1))

Delivery of special educational provision

16. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
17. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Personal budget

18. A personal budget is money identified by a council to deliver provision set out in an EHC Plan where the parent or young person is involved in securing the provision.
19. Councils must provide parents and young children with information on:
• the provision for which a personal budget may be available;
• details of organisations that provide advice and assistance on personal budgets; and
• the conditions which must be met before direct payments may be made;

(Special Educational Needs (Personal Budgets) Regulations 2014 regulation 3)

20. A council must consider a request for a direct payment if a child’s parent made it at any time during the period in which the draft EHC Plan is being prepared or reviewed. (Special Educational Needs (Personal Budgets) Regulations 2014 regulation 4)
21. Councils may only make direct payments for special educational provision specified in an EHC Plan and not for funding a place at a school or post-16 institution. (Special Educational Needs (Personal Budgets) Regulations 2014 regulation 6(2))
22. Where a council refuses to make direct payment it must:
• inform the child’s parents in writing of its decision, providing the reasons and informing of the right to request a review;
• carry out a review of its decision, if requested to do so, considering any representations made by the child’s parent;
• inform the child’s parent in writing of the outcome of the review, giving reasons.

(Special Educational Needs (Personal Budgets) Regulations 2014 regulation 7)

Annual Review

23. 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) 
24. 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

Background

25. Y is autistic and has complex special educational and medical needs, including Obsessive Compulsive Disorder and anxiety.
26. In December 2022 the Council issued an EHC Plan for Y with Section I left blank. The Council decided Y needed her special educational provision to be delivered out of school.
27. From February 2023 Y has started two hours twice a week of online provision. Because of Y’s non-engagement this was reduced to two hours per week.
28. At the beginning of August 2023 the Special Educational Needs and Disabilities (SEND) Inclusion officer from the Council reviewed Y’s support. They noted:
• Y’s presentation varied considerably due her mental health difficulties;
• Y could not engage directly with tutoring sessions delivered virtually. Y’s tutor communicated with Mrs X;
• some days Y could complete tasks but other days it was not possible.
29. During this review Mrs X repeated her request for specific online provision addressing Y’s emotional and mental health needs.

From November 2023 to July 2024

30. At the beginning of November 2023 the Council arranged a meeting to review Y’s EHC Plan. Mrs X asked for Y’s therapy to be delivered by an animal therapy provider (the Provider). The Provider was not on the Council’s list of the Individual Packages of Education Support. Mrs X also asked for a Personal budget for Y. The review recommendation was to amend Y’s EHC Plan and consider Mrs X’s Personal budget request.
31. In mid-November the Council agreed for the animal-based learning to be added to Y’s package of support but would consider various providers. The decision-making panel (SEND Panel) did not refer to Mrs X’s request for a Personal budget.
32. At the beginning of December the SEND Panel refused Mrs X’s request for a Personal budget for Y. In the email correspondence to Mrs X the Council did not include any reasons for the Council’s decision and said it would send a formal letter soon.
33. A few days later the Council told Mrs Y it would amend Y’s EHC Plan and sent her its proposed amendments. The Council issued a final amended EHC Plan for Y at the end of February 2024. The plan included:
• up to 15 hours per week of online tuition. This will need to be built up slowly and may need to vary on a daily/weekly basis;
• therapeutic provision for one day per week with access to the animal-based therapy sessions;
• tutors and learning mentors working with other professionals involved in supporting Y and her parents;
• direct teaching in weekly sessions to develop strategies for managing anxiety;
• a short daily programme focusing on fine motor skills.
34. From May 2024 Y started attending the Provider in addition to the continuing two hours of online tutoring.
35. Mrs X contacted the Council at the end of June 2024. She said she had never received reasons for the Council’s refusal of her Personal budget request presented at the Annual review meeting in November 2023. She also asked about the timescales for increasing hours from the Provider.
36. The Council’s officer told Mrs X the Personal budget letter was sent to her with the final EHC Plan at the end of February 2024. The officer re-sent this letter.
37. At the beginning of July 2024 the SEND Panel agreed to increase the Provider’s hours up to 15 hours per week.

From September 2024 to mid-March 2025

38. From September 2024 Y’s attendance at the Provider’s increased to 15 hours a week.
39. In December 2024 Y’s online tutor asked the Council about the possibility of arranging face-to-face sessions in the library to try to improve Y’s engagement. The Council failed to respond.
40. In February 2025 the Council did not agree for the online tutor to arrange face-to-face sessions for Y due to extra travelling time for tutor which would be needed. The tutor lived in the area of a different council.
41. The Council also ended commissioning services from the Provider due to safeguarding concerns. This happened without any notice and caused significant disruption to Y. The Council offered alternative providers to Mrs X but she did not consider them suitable.

From mid-March to the end of April 2025

42. In mid-March 2025 the Council held a meeting to review Y’s EHC Plan. Discussions took place about the possibility of securing face-to-face tutoring sessions with her current tutor. Mrs X argued Y’s engagement with online tutoring had been poor. Besides it was not an option to find a new tutor for Y, as it had taken her a long time to accept the one she had had for the last 18 months. The Council refused Mrs X’s request for the face-to-face tutoring. Mrs X explained that because of Y’s mental health difficulties increased by the abrupt end of her attendance at the Provider’s, she could not at the time consider a different therapeutic provision. Mrs X also asked for a Personal budget for Y. She provided details of this request at the end of August 2025.
43. In the second week of April 2025 Mrs X raised her complaint. The Council responded three weeks later, apologising for the delay in reviewing Y’s EHC Plan.
44. Mrs X came to us in the second week of June 2025.
45. Following the Annual Review meeting held in March 2025, the Council issued Y’s final amended EHC Plan at the beginning of August 2025. The Council agreed that Y needed “a bespoke education programme of tuition for up to 15 hours per week provided by consistent and trusted tutors. Additionally she will attend a therapeutic learning environment for up to ten hours per week focused on enabling pupil engagement, building self-esteem and communication as well as working towards qualifications that can lead to further education or training”.

Analysis

Delivery of education and special educational provision

46. The Council arranged online tutoring for Y. Because of her difficulties with engagement, this provision was reduced from four hours per week to two hours per week. In the report filed at the Annual Review of Y’s EHC Plan in 2023 Y’s difficulties with engagement were described. Following this review Y’s plan still included provision for online tutoring up to 15 hours per week.
47. As explained in paragraph 16 of this decision the Council has a duty to deliver the content of Section F of child’s EHC Plan. Until the beginning of August 2025 online tutoring was specified as part of Y’s EOTAS package. If Mrs X was unhappy with the online provision for Y she could have appealed to the SEND Tribunal.
48. At this stage I have no evidence Y could have accessed more education. Due to her special educational needs profile Y found it difficult to engage with education. Because of the specific wording in Y’s EHC Plan referring to online tuition, we would not criticise the Council for not agreeing to replace online tuition with face-to-face sessions.
49. In Y’s final amended EHC Plan from the end of February 2024 the Council included provision for weekly animal therapy. It took the Council over two months to arrange it. The delay in putting this provision in place is fault. Because the Council agreed Y needed this therapy in mid-November 2023, it had over three months to arrange it before Y’s final amended EHC Plan was issued.
50. The Council’s fault caused injustice to Y as this provision was intended to address her social, emotional and mental health needs which were prominent among her special educational needs and determined whether she could access education. It also caused injustice to Mrs X as she had identified the Provider as a suitable setting and was distressed at the delay.
51. When commissioning support for children the Council has a safeguarding duty. The Council explained it stopped using the Provider’s services in February 2025 due to its safeguarding concerns about the Provider. We would not criticise the Council for taking such decision, although its impact on Y is regrettable. This disruption to Y’s support happened due to the circumstances outside the Council’s control. The Council offered alternative options, which was what we would expect. Mrs X did not consider it would be suitable for Y, but we cannot hold the Council responsible for that.

Annual Review

52. The Council should review children’s EHC Plan annually. The Council has 12 weeks to issue a final EHC Plan following a review if it has decided the plan needs to be amended.
53. An Annual Review meeting for Y’s EHC Plan should have taken place in November 2024 but was arranged in mid-March 2025 instead. The final EHC Plan was issued at the beginning of August 2025. The delay of four months in holding a review is fault and a further delay of nearly two months in issuing a final EHC Plan is fault.
54. This fault caused injustice to Y as during the review the Council agreed to amend some of Y’s provision, including the removal of the requirement for Y’s tuition to be virtual and specification that Y should be educated by consistent and trusted tutors. It also caused injustice to Mrs X as she was increasingly distressed by the difficulties in ensuring continuity of support for Y.

Personal budget

55. When refusing to make direct payment the Council should tell parents of its decision in writing, provide its reasons and inform them of the right to request a review.
56. In December 2023 the Council refused Mrs X’s request for a Personal budget. The Council did not provide its reasons and did not tell Mrs X that she could ask for a review of the Council’s decision. In response to my enquiries the Council said it had sent a Personal budget decision letter to Mrs X in February 2024 but could not provide a copy of this letter. Having received a reminder from Mrs X, the Council re-sent a letter in June 2024.
57. The Council’s significant delay in providing reasons for its refusal of direct payments for Y is fault. It caused injustice to Mrs X as she could not challenge the Council’s decision.
58. In our guide ‘Principles of good administrative Practice’ we explain that to provide their services at the expected standard councils should be open and accountable. This can only be achieved when councils keep complete and accurate records.
59. The Council’s failure to keep proper records for Y is fault. It caused injustice to Mrs X as the incompleteness of records made scrutiny of the way the Council provided its services impossible. This caused Mrs X’s further distress.

Service improvements

60. In a recent complaint, where we also found fault in the way the Council carried out reviews of the child’s EHC Plan, the Council told us it had introduced an Annual Review improvement plan. The plan includes ensuring that there is effective communication with schools on when Annual Reviews should be held and includes identification of Annual Reviews which have not taken place within the statutory timeframe, with a view of making improvements in this area. The Council has in place an Annual Review Coordination Oversight Group (COG), facilitated by one of its quadrants Assistant Directors. Data regarding Annual Reviews is shared on a monthly basis with the SEND Performance Board.
61. In the same decision we have also recommended the Council:
• review its Personal budget process to make it complaint with its policy. The Council will ensure that when refusing a Personal budget request for a child with an EHC Plan it sends its response in writing giving the reasons and advising of the right to ask for a review;
• remind all the SEND front-line staff of the Council’s duties in relation to Personal budgets for children with EHC Plan. For this purpose the Council might use our Focus report "Parent Power: personal budgets in EHC plans".
62. We recognise it will take some time for the Council to address its failings with the reviews of the EHC Plans and with its Personal budget process identified in our recent investigations. We will be monitoring the effectiveness of the Council’s actions following our recommendations through our casework.

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Action

63. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X and Y for the injustice caused to them by the faults identified. 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;
• pay Mrs X £400 to recognise Y’s loss of education and support caused by the Council’s delay in arranging animal therapy;
• pay Mrs X £750 to recognise the distress caused to her by the Council’s failings within the Annual Review and Personal budget process.

The Council will provide the evidence that this has happened.

64. We also recommend the Council within three months of the final decision review the way it keeps records for children with EHC Plans. The Council should ensure that all key correspondence is properly filed and available. The Council should provide us with evidence of the actions taken to complete this recommendation.

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Decision

65. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman