Summary: On behalf of Ms X, Mrs B complained the Council failed to secure special educational provision and failed to complete an annual review for Ms X’s child, Y. We find the Council at fault for failing to complete the annual review within the statutory timeframe and for failing to secure special educational provision for Y when she was unable to attend school. This caused Y and Ms X distress and frustration and meant Y did not receive access to suitable education for approximately one school year. The Council has agreed to apologise, make a symbolic payment and make service improvements to remedy the injustice caused.

The complaint

1. On behalf of Ms X, Mrs B complained the Council:
• Failed to issue a draft and final Education, Health and Care Plan within statutory timeframes.
• Failed to secure the provision detailed in section F.
• Failed to respond to a personal budget request.
• Did not communicate adequately or provide necessary support.

Mrs B told us this meant Ms X’s child, Y, has been without educational provision for almost a full academic year, and this is impacting Y’s mental health. Mrs B also told us Ms X’s mental health has been impacted. Ms X would like the Council to secure her preferred tuition provider, issue a final Education, Health and Care Plan with her requested amendments and reconsider the personal budget request.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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. 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. 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

7. Mrs B complained to us in June 2025 about events dating back to July 2023. Anything before June 2024 is a late complaint.
8. I have seen no good reason the complaint could not have been made sooner. I have not exercised discretion to investigate events between July 2023 and June 2024.
9. I have investigated the Council’s actions in completing the annual review which took place in July 2024.
10. I have also investigated the Council’s actions in securing the special educational provision detailed in Y’s Education, Health and Care Plan from September 2024 when she was unable to attend school and the Council’s communication with Ms X during this time.
11. The Council issued a final amended EHC Plan in September 2025 which had a right of appeal. For this reason, I have not investigated beyond this date.

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How I considered this complaint

12. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
13. Mrs B 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

Legal and administrative background

Education, health and care plans

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.
15. Section F of an EHC Plan details the special educational provision needed by the child or young person.

16. 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. 

Maintaining the EHC Plan

17. 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)  

Personal budgets

18. 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.
19. 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.
20. 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.
21. If the council refuses a request for a direct payment, 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.
22. The council’s (and health commissioning body’s where relevant) 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.

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 Council must then issue its decision to amend, maintain or cease to maintain 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

Annual Review and personal budget

25. An annual review meeting was held in mid-July 2024. The Council’s decision following the annual review meeting was to amend Y’s Plan. In accordance with statutory timeframes the Council should have issued the final amended Plan no later than the first week of October 2024.
26. As part of the annual review process, Ms X requested a personal budget to secure mentoring for Y.
27. The Council did not issue a final amended Plan until the end of September 2025. This is a delay of approximately 12 months.
28. The Council agreed Ms X’s personal budget request in September 2025. This is also a delay of approximately 12 months.

Section F provision

29. In September 2024, Y had an active EHC Plan dated April 2023. The Council had a duty to ensure Y received the special educational provision set out in this Plan.
30. Ms X contacted Y’s school and the Council in the first week of September 2024 to explain Y would not be returning due to its impact on her health and wellbeing.
31. At the end of September 2024, the Council attended a professionals meeting with Ms X and the school. The minutes from this meeting show the school, Council and Ms X agreed that ‘Education Other Than at School’ (EOTAS) should be explored. There is no record of the school or Council having the view during this meeting that the school could meet Y’s special educational needs.
32. The Council contacted Ms X in October 2024 and said it was exploring the option of EOTAS for Y. The Council asked Ms X if she was happy for Y to be referred to its tuition provider. The Council did not provide Ms X with any details about the provider or what support would be provided.
33. The Council has not provided any evidence of how or why it considered its tuition provider would meet its section 42 duty to provide Y with the special educational provision detailed in her EHC Plan.
34. Ms X responded to the Council the same day to explain she would prefer to look into tuition providers who would be able to meet Y’s specific needs.
35. The Council has not provided any evidence it responded to Ms X’s email, provided any alternative tuition options or explained how its provider could meet Y’s needs.
36. Ms X contacted the Council again in November 2024 to provide an educational psychology assessment report which detailed Y’s difficulties with attending a school setting. The Council has not provided any evidence it responded to Ms X’s email.
37. Ms X contacted the Council for an update in the first week of February 2025. In this email Ms X also informed the Council Y had been removed from the school roll in November 2024. Ms X asked the Council if it had been aware of this as the school was still named in Y’s EHC Plan. The Council has not provided any evidence it responded to Ms X’s email.
38. Between February 2025 and September 2025 Ms X contacted the Council on multiple occasions to request tuition for Y. Ms X also contacted the Council to request progress updates and information about what actions the Council was taking to provide Y with access to education. The evidence provided by the Council shows its communication with Ms X was not consistent and the Council repeatedly failed to respond to Ms X’s emails.
39. The Council did email Ms X in May 2025 to discuss arranging tuition for Y. The Council sent Ms X a list of providers and asked her to look at its local offer page to explore the options. Ms X responded that her preferred provider had been approved by the Council in March 2025, and she asked the Council to respond to explain when this could begin. I have not seen any evidence the Council responded to Ms X’s email.
40. The Council has not provided evidence it took steps to secure the provision detailed in Y’s active EHC Plan between September 2024 and September 2025.

My findings

41. The Council delayed in completing the review of Y’s EHC Plan and Ms X’s personal budget request by approximately 12 months. This is fault which caused Y and Ms X distress, frustration and uncertainty.
42. Council records show it agreed with Ms X and the school in September 2024 that EOTAS should be explored. Although it is clear the Council was taking steps to explore the option of EOTAS, it still had a duty to secure the special educational provision detailed in Y’s EHC Plan.
43. The Council has not provided evidence it considered or met its section 42 duty to secure the special educational provision detailed in Y’s EHC Plan between September 2024 and September 2025. This is fault which caused Y to miss out on special educational provision for a whole school year. The fault also caused Y and Ms X distress and frustration.
44. In response to our draft decision the Council told us Ms X had refused to engage with the Council’s offer of provision. The evidence shows that although Ms X had a preferred tuition provider, there were multiple occasions between July 2024 and September 2025 where the Council failed to respond to Ms X requests for information, updates and support. This failure to respond to Ms X is fault which caused Ms X distress, frustration and uncertainty.

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Action

45. Within one months of the final decision the Council will:
• Apologise to Y and Ms X for the injustice caused 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 its apology.
• Make a symbolic payment of £6,000 to Ms X in recognition of the injustice caused by the delays in completing the annual review and securing special educational provision. The payment also recognises the injustice caused by the Council’s poor communication. This is calculated at £2,000 per term of missed education in line with our guidance on remedies and is reflective of the fact the Council has not provided any evidence that Y received any access to education during this time.
46. Within three months of the final decision the Council should ensure it has an established process in place for staff to document any section 42 duty considerations it makes when a child or young person with an EHC Plan is unable to attend school.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. 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