Summary: Mrs X complained the Council did not provide her child, Y, with all the provision set out in his Education, Health and Care Plan which included Speech and Language Therapy. Mrs X also complained about the Council’s delays with completing the annual review process of Y’s Plan. There were faults by the Council which caused injustice to Y and Mrs X. The Council has agreed to apologise and make payments to remedy the injustice caused. It will also finalise and publish its Personal Education Budgets Policy.

The complaint

1. Mrs X complained the Council:
1. did not provide her child, Y, with all the special educational needs provision set out in Section F of Y’s Education, Health and Care (EHC) Plan
2. withdrew the personal budget / direct payments for his weekly Speech and Language Therapy and Play Therapy from Y’s current EHC Plan dated 24 June 2025
3. delayed with the annual review process of Y’s EHC Plan following the review meeting held on 13 February 2025.
2. Mrs X said as a result, Y missed out on specialist provision and support, and it affected his health. Mrs X also said the matter caused Y and the family distress, anxiety and frustration.

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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 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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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.
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 investigated matters from January 2025 to June 2025. This covers the period from when Mrs X raised her concerns about the Council’s failure to provide Y with all the provision set out in his EHC Plan to when the Council issued Y’s final EHC Plan.

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How I considered this complaint

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

Education, Health and Care Plans

13. 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.
14. 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 2014). 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)
15. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The review process includes a review meeting, and the subsequent decision, which have appeal rights.
16. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan. Where the decision is to amend the EHC Plan, the council must then issue any final amended Plan within eight weeks of the ‘amendment notice’. Therefore, a final EHC Plan must be issued within 12 weeks of the review meeting.
17. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final plan is issued.
18. The courts have established that if someone has appealed to the tribunal, the law says 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). 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 and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.
19. A Higher-Level Teaching Assistant (HLTA) is a specialised, experienced classroom assistant who takes on greater responsibilities, including planning and delivering lessons to whole classes, covering planned teacher absences, and supporting specialised learning.

Personal Budget

20. 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 payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
21. A child’s parent or the young person has the right to request a personal budget during a statutory review of an existing EHC Plan.
22. 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.
23. 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.

Background

24. Mrs X’s child, Y, has some health conditions and special educational needs (SEN).
25. Y has an Education, Health and Care (EHC) Plan and attends School 1.
26. Some of the provisions in Y’s final EHC Plan which was issued in 2024 included:
1. 35 hours per week of dedicated 1:1 support from a higher-level teaching assistant (HLTA) trained to manage Y’s health condition and to support academic and physical difficulties.
2. 3 hours per day spent in a 1:8 ratio group with a teacher delivering age-appropriate education at least 50% of the school day.
3. Regular sensory breaks as needed throughout the day such as sensory circuits/movement breaks 3 times for 10-15 minutes.
4. 50 minutes per week of play therapy (secured through personal budget/direct payment).
5. 1 hour per week of direct highly specialised Speech and Language Therapy (secured through personal budget/direct payment). The provision should be delivered to Y both in school and at home by an experienced therapist.

Key events

27. In January 2025, Mrs X met with School 1 to discuss her concerns that the school was not providing Y with all the provision set out in his EHC Plan including the 1:1 HLTA support. She explained the impact this had on Y. Mrs X also questioned whether Y’s EHC Plan was still appropriate to meet his needs. School 1 agreed to address the concerns raised and an annual review of Y’s EHC Plan was scheduled for February.
28. On 13 February, an annual review of Y’s EHC Plan was completed. The annual review paperwork stated Y continued to access education within School 1 and that his Plan would be amended to reflect changes in his needs and provision. There was no input or report submitted by Speech and Language Therapy (SALT). Mrs X requested a personal budget via direct payment to fund 1:1 HLTA support for Y. Mrs X’s request was in addition to the already existing personal budgets in Y’s EHC Plan for the delivery of SALT and Play Therapy.
29. In mid-March, School 1 provided a copy of Y’s provision map to the Council to show how it delivered the provision in Y’s EHC Plan to him. Mrs X disputed Y was provided with all the section F provision in his Plan.
30. On 15 May, the Council issued its decision letter following the February annual review meeting. The Council agreed to amend sections A, B, E and F of Y’s EHC Plan.
31. In June, the Council’s multi-agency panel considered and issued its decision. The panel refused Mrs X’s request for an additional personal budget for HLTA support for Y. The panel’s decision letter stated this was because School 1 did not agree with Mrs X receiving a personal budget for an HLTA for Y as the school already had an appointed member of staff who was providing Y with appropriate support.
32. The next day, the Council wrote to Mrs X and informed her of the panel’s decision. The Council did not advise Mrs X of her right to request a formal review of the decision.
33. On 24 June, the Council issued Y’s final EHC Plan. The named educational setting in the Plan remained School 1 and no additional personal budget/direct payment was awarded. The Council also removed the previous agreed personal budgets for the delivery of SALT and Play Therapy.
34. Mrs X subsequently submitted an appeal to the Tribunal against the contents of Y’s final EHC Plan.

Mrs X’s complaints

35. Mrs X made a complaint to the Council that it failed to provide Y with all the provision set out in section F of his EHC Plan. In particular:

• 35 hours per week of dedicated 1:1 HLTA support to manage Y’s health condition and to support academic and physical difficulties.
• 3 hours per day spent in a 1:8 ratio group with a teacher delivering age-appropriate education at least 50% of the school day.
• regular sensory breaks as needed throughout the day such as sensory circuits/movement breaks 3 times for 10-15 minutes.
• that the Council wrongfully withdrew the personal budgets previously agreed in his EHC Plan for delivery of SALT and Play Therapy.

36. Mrs X said she had witnessed instances where Y was not supported by his 1:1 HLTA. She said instead School 1 used Y’s dedicated HLTA to deliver support to other pupils and/or was used as a class teacher for an entire classroom. Mrs X said she would like a personal budget to secure Y’s 1:1 HLTA provision.
37. Mrs X also complained about the Council’s delays with Y’s EHC Plan annual review process and its failure to issue Y’s final Plan.
38. In its responses to Mrs X’s complaint, the Council:

• said it delegated its responsibility under section 42 of the Children and Families Act 2014 to School 1 to provide Y with the provision in his EHC Plan. The Council said School 1 had provided it with a detailed copy of Y’s provision map and it was satisfied that Y was receiving all his provision.
• acknowledged that SALT was not provided to Y as the therapist had been ill and absent from work. The Council said it was unsure when the therapist would return to work.
• accepted there were delays with the annual review of Y’s Plan. The Council apologised. It said it was in the process of conducting staff training and reviewing its annual review policy to improve its service.

39. Mrs X remained dissatisfied with the Council’s responses to her complaint and made a complaint to the Ombudsman.
40. In response to our enquiries, the Council:

• said it was in contact with School 1 between January 2025 and March 2025 and it was satisfied School 1 provided Y with the provision in his EHC Plan based on the detailed provision map the school provided to it. The Council confirmed that Y was not provided with SALT due to staff illness/absence.
• was unable to provide any evidence that it monitored and was satisfied that School 1 continued to provide Y with all the provision in his Plan between April 2025 and June 2025.
• said its Personal Education Budgets Policy, Process and Decision Framework was at the draft stage and that it was in the process of finalising the policy.

Analysis

My findings are:

Providing Y with Section F of his EHC Plan

41. The Council said all the provision in section F of Y’s EHC Plan was provided to him except the SALT provision due to staff illness/absence. Mrs X alleged there were other provision which the Council failed to provide to Y including the 35 hours weekly 1:1 HLTA support, the 3-hour daily education delivered within a group of 8 pupils and regular sensory breaks for Y.

Spring Term 2025

42. The provision map sets out how School 1 delivered Y’s SEN provision to him during this period. While I acknowledge Mrs X’s concerns, on balance, I am satisfied apart from SALT, Y received the provision in section F of his EHC Plan from January 2025 to March 2025. The Council’s failure to provide Y with SALT was service failure and was fault.
43. As set out at paragraph 38, the Council said it delegated its responsibility under section 42 of the Children and Families Act 2014 to School 1. It is the Council’s responsibility to discharge its legal duty under section 42 to arrange provision which is owed personally to Y. As case law has confirmed this is non-delegable. This also applies to Y’s SALT provision secured via personal budget/direct payment. The Council remains legally responsible for ensuring the provision was delivered to Y.

Summer Term 2025

44. We recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC Plan all the time. However, we consider that councils should be able to demonstrate due diligence and as a minimum have systems in place to check the provision at least annually via the review process and investigate complaints or concerns that provision is not in place at any time.
45. The Council should have continued to have an oversight of the delivery of Y’s provision during this period particularly at a time it was investigating Mrs X’s complaint.
46. The Council was unable to provide evidence it monitored and was satisfied School 1 continued to provide Y with all the provision in his Plan between April 2025 and June 2025 when Y’s final EHC Plan was issued. This was fault. It caused Mrs X distress and uncertainty.
47. Y continued to attend School 1, received education and some provision set out in his EHC Plan which I find mitigated the injustice caused to Y.

Personal Budgets / Direct Payments

48. It took the panel approximately 4 months to consider Mrs X’s request for an additional personal budget for a HLTA. This was fault and it caused avoidable distress and uncertainty to Mrs X.
49. The panel refused Mrs X’s request because School 1 confirmed it already had a dedicated HLTA who was providing Y support. This is a decision the Council is entitled to make. Councils must seek permission from schools where provision funded by a direct payment is to take place on school premises. This was not fault.
50. But the Council failed to advise Mrs X of her right to request a formal review of its decision. This was fault and not in line with statutory guidance. It meant Mrs X lost the opportunity to challenge the decision.
51. The Council has been unable to show how it reached its decision to withdraw the previous agreed personal budgets for the delivery of SALT and Play Therapy provisions to Y.
52. The Council’s decision letter to amend Y’s EHC Plan did not indicate any changes would be made to section J (personal budget section in Y’s Plan). The panel paperwork confirms there was no evidence to show the previously agreed personal budgets for SALT and Play Therapy were also considered. The Council was at fault. It caused uncertainty to Mrs X.
53. The Council said its personal budget policy and process is currently in draft and it is in the process of finalising it. This is welcome but I will make a service improvement recommendation below for the policy to be finalised and published. This will ensure service users can access clear information about personal budgets.

Annual Review Process

54. The Council issued its decision letter to amend Y’s EHC Plan on 15 May 2025 after it completed an annual review of Y’s EHC Plan on 13 February 2025. This was a delay of approximately 9 weeks
55. The Council should have issued Y’s final EHC Plan on 8 May 2025 (12 weeks after the review meeting). It did not issue Y’s final Plan until 25 June 2025. This was approximately a 7-week delay.
56. These delays were fault. This caused Mrs X distress and delayed her right of appeal to the Tribunal.

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Action

57. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following actions within one month of this final decision:

• apologise in writing to Y and Mrs X to acknowledge the injustice caused to them by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology
• provide Y with additional Speech and Language Therapy sessions to address shortfalls for the period he did not receive the provision between January 2025 and June 2025. The Council agreed to this but also suggested it pay Mrs X £900 as an alternative. This would enable her to arrange the therapy herself. Mrs X has confirmed she prefers that option so the Council will make that payment.
• make Mrs X a payment of £900 in recognition of Y’s loss of specialist provision and support set in his EHC Plan between April 2025 to June 2025. This payment also includes the distress and uncertainty caused to Mrs X by the Council’s failings as identified above.

58. Within three months of the final decision:

• finalise the Council’s Personal Education Budgets Policy, Process and Decision Framework and publish it on the Council’s website. This is to ensure the Council provides its service users with clear information about personal budgets application and formal review processes.

59. The Council should provide us with evidence it has complied with the above actions.

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Decision

60. I find fault by the Council causing injustice to Y and Mrs X. The Council has agreed to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman