Summary: There was delay in completing a secondary transfer review for a child with an Education, Health and Care Plan. This delayed the right of appeal. There was also fault in the way requests for personal budgets to support education were handled, which casts doubt on whether the outcome of the requests might have been different. The Council has agreed to apologise, make a symbolic payment to acknowledge the injustice and carry out service improvements.

The complaint

1. Ms X complains the Council has not listened to her or other professionals and have caused emotional harm to her and her child. Ms X says:
• A Council officer has not taken her child’s best interests into account.
• The Council failed to respond to a request for a personal education budget as part of her child’s Education, Health and Care (EHC) Plan.
• The Council upheld her complaint but did not provide a remedy.
• The Council failed to communicate with her.
• The Council advised her child should go to a mainstream school.
2. Ms X says the Council’s actions have resulted in the need to appeal to Tribunal and her child has been out of school during the period waiting for the appeal to be heard.
3. Ms X says the Council’s conduct has affected her mental health.
4. Ms X says her child has become aggressive and depressed. Ms X says she could not send them to a school she considered unsafe. Ms X considers the Council could have avoided this by naming a suitable school.
5. Ms X told us the outcome she was seeking from her complaint is:
• To reinstate funding attached to the EHC Plan to its previous level.
• Agree to her preference of school.
• Provide her with a new key worker due to the breakdown in the relationship with an officer.
• Provide transport to her choice of school.
• Agree the personal education budget she requested.
• An apology.

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The Ombudsman’s role and powers

6. 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)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
• We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
• We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• further investigation would not lead to a different outcome; or
• we cannot achieve the outcome someone wants; or
• there is no worthwhile outcome achievable by our investigation.
  (Local Government Act 1974, section 24A(6), as amended, section 34(B))

9. 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.
10. 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)

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How I considered this complaint

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

Relevant law and guidance

EHC Plans and process

14. 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. 
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. Where the council proposes to amend an EHC Plan after a review meeting, 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.
16. The council must review and amend an EHC Plan in enough time before a child or young person moves between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases, for example between primary and secondary school.  

Appealing an EHC Plan

17. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s special educational needs, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
18. The law says that if someone has appealed to the Tribunal, we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
19. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or when the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
20. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started.
21. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
22. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  

Personal budgets and direct payments (Education)

23. A Personal Budget is the amount of money the council has identified it needs to pay to secure the special educational 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.
24. 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.
25. If the council refuses a request for a direct payment for education in an EHC Plan, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

Social care

26. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
27. The Children Act 1989 (Schedule 2 paragraph 96)(1)(c)) and Breaks for Carers of Disabled Children Regulations 2011 requires councils to provide a range of services designed to assist family carers of disabled children to continue to provide care, or to do so more effectively, by giving them breaks from caring. These services must include a range of daytime care, overnight care and leisure activities. This range of services must be set out in a ‘short breaks statement’ and include details of any eligibility criteria.
28. Parents/carers of disabled children can ask for a direct payment to meet the social care needs of the child.

Elective home education (EHE)

29. Parents have a right to educate their children at home (Section 7, Education Act 1996). Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
30. Councils have a power, but not a duty, to provide support, for example funding or therapy at home, for children with special educational needs (SEN) who are EHE. The SEN Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.

Factual background

31. The Council held an annual review of the EHC Plan in Autumn 2024. Ms X says in October 2024 she submitted a form about secondary school for Autumn 2025, but there was then little communication from the Council about what school her child would attend, or about a personal education budget she says she requested. Ms X says they had four caseworkers within one year.
32. The Council issued a draft plan in mid-March 2025. It started to consult schools in March.
33. In late Spring Ms X made a formal complaint about the Council’s handling of the secondary transfer. Ms X said she was aware three schools had refused entry, but the Council was not keeping her informed and she was concerned no school place would be found by the end of the school year. Ms X said her child had been out of school without alternative provision for seven months the previous year and she was concerned the same thing would happen again. Ms X said her child needed a specialist placement.
34. The Council’s stage one complaint listed the consultations made and said the Council would name a mainstream secondary school in the EHC Plan. The Council said it had no record of a request for a personal budget but did uphold there had been poor communication.
35. The Council issued a final EHC Plan in May naming the mainstream secondary. Ms X did not agree with this decision and said the school also did not agree with it. Ms X appealed to the Tribunal. Ms X said she would not send her child to the school as she did not consider they would be safe.
36. Ms X asked for her complaint to go to stage two. Ms X said the amount of funding the Council proposed to provide to the secondary school was £6,000 lower than provided currently, with no explanation for this. Ms X referred the Council to emails when she had requested a personal budget. Ms X wanted the Council to name a specialist school on the EHC Plan.
37. The Council said the secondary school had not stated it could not meet needs and the Council considered concerns raised by the school could be addressed through providing funding and it would work with the school about this.
38. The Council acknowledged a request for a personal budget for equipment, sensory friendly uniform, and transport had been missed and it would now be considered. It upheld it had failed to respond to the personal budget request.
39. Ms X told us she had wanted to use a personal budget for some educational activities which would take place in school, but also some leisure activities and counselling. Ms X told us the Council did refer her to social care who have awarded short breaks via direct payments.
40. The Council did not agree a request from Ms X to change the caseworker due to a breakdown in the relationship but said the caseworker would change automatically once her child moved to secondary education.
41. Ms X told us in Autumn 2025 she had not heard anything further about the personal budget request for education and her child was at home with no support. Ms X now wanted a personal budget to support her child’s special educational needs at home.
42. Ms X appealed the decision to name a mainstream school in the EHC Plan. The Tribunal registered the appeal as an extended appeal to include education, health and care matters.
43. Ms X told us the appeal was concluded in December 2025 without a hearing taking place. I have seen the consent order and agreed working document. This states Ms X is currently electively home educating. Ms X says the appeal was resolved on the basis the Council agreed to provide a place at her preference of special school from September 2026, when a place is available.
44. The Council told us its position is that Ms X has been electively home educating since the end of primary school in July 2025. It said there had been discussions with Ms X about this as part of the appeal and working document process and it had agreed to hold a review of the EHC Plan to explore further whether Ms X wanted to continue to home educate until September 2026 or whether alternative provision needed to be made. The Council said it could consider a request for a personal budget as part of any alternative provision during the review.
45. The Council is waiting for the Tribunal to provide the final order, following which an amended final EHC Plan will be issued.

Analysis

What I have and have not investigated

46. I have investigated the period Autumn 2024 to February 2026.
47. I have not investigated the Council’s decision to name a mainstream placement Ms X considers unsafe and unsuitable. Ms X appealed this decision to the Tribunal; it is therefore outside of our jurisdiction to consider it.
48. I have not investigated the decision to reduce the amount of funding attached to the EHC Plan; this was a matter between the Council and the named school. If Ms X considered the provision in the amended final EHC Plan was inadequate this was something she could have raised in her appeal.
49. I have not investigated requests for school transport as Ms X’s child has not been attending a school.
50. The law says where we cannot investigate a decision due to an appeal, we also cannot investigate the consequences of the decision. This means I cannot investigate any loss of education due to Ms X deciding not to send her child to a secondary school the Council named in the EHC Plan for September 2025, but which Ms X considered unsuitable.
51. I cannot consider the Council’s assessment of Ms X’s child’s social care needs, or its short break decision, or Ms X’s request for a budget for leisure activities. Ms X’s appeal was extended to cover social care matters so the law says I cannot now look at this.
52. I cannot consider health needs, for example a request for a budget for counselling, because the appeal was extended to cover health.
53. I have not investigated the request to change the case officer as I understand a different officer is already in place. I cannot achieve any further worthwhile outcome to this part of the complaint.
54. I have investigated:
• the delay before Ms X was provided with an appeal right (October 2024 to May 2025) and,
• the process to consider an education personal budget (where this can be separated from matters appealed).

Fault and injustice

55. The Council has upheld there was a lack of communication with Ms X and apologised for this.
56. The Council should have issued a decision about the outcome of the Autumn 2024 review meeting, together with any amended draft plan, within four weeks of the meeting and any final amended plan within twelve weeks. The Council issued the draft plan five months after the meeting, and the final plan seven months after the meeting. This was excessive delay and was fault.
57. The Council should also have issued the final EHC Plan identifying a school for secondary transfer by 15 February 2025 and should have started consultations before February, not after. The Council was three months late in meeting the deadline to name a secondary school. This was fault and delayed Ms X’s appeal right by three months. The Tribunal does try and expediate transfer appeals and may have been able to hear the case in time for September 2025. This does not mean a place at Ms X’s preferred school would have been available for September 2025, but the opportunity to obtain a place by earlier consultation was missed. This is an injustice.
58. Ms X did request a personal budget / direct payments for some education provision in response to the draft Plan. The Council missed this request; this was fault. The Council accepted this in its own complaint response and said it would respond but failed to provide a written decision. This was a repeat of the previous fault.
59. As Ms X has been electively home educating since July 2025, I am not persuaded there is any injustice in the failure to consider a personal budget for school uniform or activities that would have taken place in school from that date. For the reasons given above I cannot consider Ms X’s request for leisure activities or counselling as these would be social care and health matters which were included in Ms X’s appeal.
60. As Ms X has been electively home educating since July 2025 this means Ms X took on financial responsibility for education including the special educational provision in the EHC Plan from that date. Councils have a power, but not a duty, to provide funding to home educators for the special educational provision in an EHC Plan. As Ms X’s request for a personal budget has been repeatedly missed, Ms X has not had the opportunity to have such a request considered. This does not mean the Council would have offered funding, but the uncertainty whether it may have done is an injustice.
61. The Council has agreed to revisit Ms X’s decision to electively home educate at a forthcoming review and said, if she decides to stop home educating, it will consider alternative provision until her child starts their new school in September and any request for a personal budget will be considered in this context.

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Action

Within four weeks of my final decision:

62. The Council will apologise to Ms X for the delay in issuing an amended EHC Plan, missing the secondary transfer deadline, delaying her appeal rights and failing to properly address the personal budget requests.
63. The Council will pay Ms X a symbolic payment of £500 to acknowledge the impact of the faults and delays, and the distress and uncertainty caused.
64. The Council will arrange the review meeting to consider with Ms X the options and the financial responsibility for education between now and September 2026.
65. The Council will remind officers of the need to:
• respond in writing to requests for education personal budgets and direct payments in line with the Special Educational Needs (Personal Budgets) Regulations 2014;
• consider requests for financial support for elective home educators to provide special educational provision in the EHC Plan and provide a written decision (SEN Code of Practice, 10.30).
66. I have not made any service improvement recommendations about the annual review process as we have done so recently in other cases, and I am aware this is being addressed by the Council’s own improvement plan.
67. The Council will provide us with evidence it has complied with the above actions.

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Decision

68. I find fault causing injustice. The Council has agreed to actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman