Summary: There was delay and fault in implementing provision in an Education, Health and Care Plan. This caused distress and led a child missing out on therapies. The Council has agreed to apologise, reimburse costs, make a symbolic payment for missed provision, and carry out service improvements.

The complaint

1. Ms X complained the Council:
• Failed to issue a final Education, Health and Care (EHC) Plan in line with the statutory timescale after a Tribunal Order; and
• Failed to secure all the special educational provision in the EHC Plan in breach of s.42 Children and Families Act 2014.
2. Ms X says the Council has accepted fault and offered a remedy but this:
• did not cover the cost of provision she paid for privately;
• did not include any remedy for the time, trouble and distress caused; and
• did not reflect the missed provision was continuing.

Back to top

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 provide a free service but must use public money carefully. We do not start or continue an investigation if we decide we could not add to any previous investigation by the organisation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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)

Back to top

How I considered this complaint

6. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Relevant law and guidance

9. 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.
10. 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.
11.  A Council or the Tribunal may determine it is necessary for a pupil with an EHC Plan to receive some, or all, of the special educational provision set out in their Plan otherwise than in a school or post-16 institution (Section 61 of the Children and Families Act 2014). The Council is fully responsible for securing provision under s.61 in the same way as a school placement named in an EHC Plan.
12. 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.
13. 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.
14. 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.
15. The local authority must provide written notice to a recipient of education direct payments specifying:
• the name of the child or young person in respect of whom direct payments are to be made;
• the goods or services which are to be secured by direct payments;
• the proposed amount of direct payments;
• any conditions on how direct payments may be spent;
• the dates for payments into the bank account approved by the local authority. (Regulation 8(2) of The Special Educational Needs and Disabilities (Personal Budget) Regulations 2014)
16. The council has a duty to make sure the child or young person receives the special educational provision set out in 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. (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Back to top

What happened

17. Ms X appealed her child’s EHC Plan to the Tribunal. The Tribunal decision was made in early 2025. The Council was ordered to amend the EHC Plan and provide Ms X’s child with a s.61 EOTAS package.
18. Ms X says she met with the Council in early Spring to discuss how provision was going to be commissioned. My understanding is the following agreement was reached:
• A direct payment for the bulk of education provision;
• A separate payment for one off equipment costs;
• Physiotherapy, speech therapy and mental health support to be commissioned separately.
19. Ms X complained in Spring 2025 the Council was late in issuing the EHC Plan and her child had received none of the education ordered by the Tribunal. Ms X said the equipment she agreed to purchase had not been reimbursed and the Council had not contacted any providers to deliver the physiotherapy, speech therapy and mental health support.
20. In May, Ms X started to commission mental health support privately as her child’s health was deteriorating. Ms X told me she paid £1450.
21. In July, Ms X started to commission physiotherapy as her child’s pain was increasing. Ms X told me six months physiotherapy was missed and she self-funded one month at £196.86.
22. Ms X said she could not afford to commission the amount of provision stated in the Plan and could not afford to commission any speech therapy. Seven months of speech therapy was missed.
23. Ms X told me the therapies were only put in place by the Council in September but since then her child has made good progress.
24. The Council admitted fault in issuing the amended EHC Plan ordered by Tribunal late. It said this was due to staffing issues and it had secured additional funding to build capacity. It said between Ms X meeting the caseworker, and agreeing the package, the team had been restructured and the commissioning request had been missed.
25. The Council offered an apology and a symbolic payment of £400 for the delay in issuing the EHC Plan. Ms X considered this a suitable remedy and accepted the offer for this part of the complaint.
26. The Council acknowledged that physiotherapy, speech therapy and mental health support had been missed from January to July. It offered a symbolic payment of £1000 to acknowledge the loss of provision.
27. Ms X complained to us in Summer 2025. Ms X considered £1000 did not cover the expenses she had paid out, did not reflect the extent of missed provision, or that the situation continued after the offer was made.
28. Ms X told me the main direct payment was paid three months late but was backdated. Ms X said she is still awaiting payment for the current block of termly funding, although the direct payment was due at the start of January 2026.

Back to top

Analysis

What I have and have not investigated

29. The Council has admitted delay in issuing the EHC Plan after the Tribunal decision. Ms X is content with the offer made to remedy this injustice. As I cannot add to the outcome already achieved, I will not investigate this further.
30. I have investigated the delay in commissioning provision and paying direct payments.

Fault and injustice

31. The Council must set out when direct payments will be made into Ms X’s nominated bank account (Regulation 8(2) of The Special Educational Needs and Disabilities (Personal Budget) Regulations 2014) and secure the provision by making the payments on time. The Council has twice been late in making payments. This is fault, creates uncertainty and puts the education provision at risk.
32. The Council failed to secure all the special educational provision in the EHC Plan as it failed to commission mental health support, physiotherapy or speech therapy for seven months. Ms X mitigated some of this loss by commissioning her own provision, however this left her out of pocket by £1646.86, and it did not replicate the level of provision in the EHC Plan.

Back to top

Agreed Action

Within four weeks of my final decision:

33. The Council will apologise to Ms X for repeated delays in making direct payments and for the continuing failure to commission therapy after it upheld her complaint.
34. On provision of receipts by Ms X the Council will reimburse Ms X £1646.86. If the Council has already paid Ms X £1000 it can deduct £1000 from this figure.
35. The Council will pay Ms X, on behalf of her child, £700 to acknowledge the loss of provision Ms X could not mitigate by making private arrangements.
36. The Council will:
• ensure Ms X has a payment schedule for future direct payments;
• ensure all direct payments due to Ms X have been made.

Within two months of my final decision:

37. The Council will ensure it has robust arrangements in place to record and meet payment dates for all s.61 EOTAS packages in compliance with Regulation 8(2) of The Special Educational Needs and Disabilities (Personal Budget) Regulations 2014.
38. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman