Summary: The Council delayed in completing the annual review of Y’s Education, Health and Care (EHC) Plan. The Council’s fault caused Y lost educational provision and their mother, Ms X, frustration. The Council was also at fault in its handling of Ms X’s complaint, causing her confusion. The Council should agree remedies to recognise the injustice caused. The Council failed to send Ms X a copy of its Personal Budget policy, but this did not cause her injustice. The Council was not at fault when it refused to allow Ms X to pay for activities using a prepaid card. I have ended my investigation into Ms X’s complaint that the Council issued a final amended EHC Plan without following the proper process because there is insufficient evidence that any fault by the Council caused injustice to Ms X or Y.

The complaint

1. Ms X complained the Council:
1. Made amendments to her child, Y’s, Education, Health and Care (EHC) Plan without following the correct process. She said the Council sent her a final (amended) EHC Plan in May 2024 without first holding a review meeting, issuing a decision to amend, or giving her chance to comment on an amended draft. She said this meant she was unable to appeal the final (amended) Plan.
2. Delayed in completing Y’s annual review. She said this resulted in them missing vital educational provision between October 2023 and March 2024.
3. Refused her permission to transfer money from Y’s direct payment account onto a prepaid card to enable Y’s Personal Assistants (PAs) to pay for pay-at-point-of-use activities. She said this meant Y was unable to access these activities.
4. Failed to provide her with a copy of the Council’s policy on the use of direct payments for children with EOTAS packages. She said this caused her confusion and frustration as to how she is entitled to spend Y’s Personal Budget.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
3. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide any fault has not caused injustice to the person who complained (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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.
5. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
6. 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)
7. 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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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance. I discussed the complaint with Ms X on the telephone.
9. Ms X and the Council now have an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

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What I found

Law, policy and guidance

EHC Plan 

10. A child or young person with special educational needs (SEN) 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. 

Appeal rights

11. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan, and amendment to these elements of an EHC Plan.

Issuing an EHC Plan

12. When sending the final amended EHC plan, the local authority must notify the child’s parent or the young person of their right to appeal and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services. (Section 14(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.198) 

Personal Budgets

13. 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.
14. 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.
15. 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.
16. 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.
17. 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.

Reviewing EHC Plans

18. 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. Following the review meeting the council must issue a decision to either 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) 
19. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
20. 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.

Our guidance on Personal Budgets and Direct Payments

21. We publish guidance for Councils which includes:
• General Personal Budget duties. Councils must:
1. Provide information on Personal Budgets as part of the Local Offer
2. Hold a policy on Personal Budgets which should include:
1. Description of services across education, health and social care that lend themselves to the use of Personal Budgets
2. The ways of making the funding available
3. Eligibility criteria
4. Decision-making process
• Direct payments for special educational provision. Councils must:
1. Provide written notice of the conditions for receipt of direct payment
2. Satisfy itself the direct payments:
1. Will be used in an appropriate way
2. The recipient will act in the best interest of the child or young person
3. Will not have an adverse impact on other services provided or arranged by the council for children and young people with EHC plans
4. Are an efficient use of the council’s resources
3. Monitor the use of direct payments.

What happened

22. This section sets out the key events in this case and is not intended to be a detailed chronology. I have investigated events from May 2024 to July 2025. Events prior to that are included for background only.
23. The Council issued a final EHC Plan for Y, who has SEN, in mid-October 2023. Ms X lodged an appeal with the Tribunal.
24. The Council reached an agreement with Ms X about the content of the EHC Plan. The version of the EHC Plan agreed by both parties included 12 hours per week of Personal Assistant (PA) support for Y.
25. The Council sent that version of the EHC Plan to the Tribunal in early March 2024 and asked it to issue a consent order. The Tribunal issued a consent order in mid-April, which concluded the appeal.
26. Also in mid-April 2024, Ms X asked the Council if it would agree to increase the PA support it funded for Y from 12 hours of one-to-one support to six hours of two-to-one support and six hours of one-to-one support. The Council agreed her request.
27. The Council issued a final (amended) EHC Plan in mid-May 2024. This included the agreed PA support as set out in paragraph 26. It also included a Personal Budget delivered through direct payments to enable Ms X to commission the provision in the EHC Plan herself. The accompanying decision letter did not include mention of a right of appeal or a requirement to consider mediation before appealing. It did include information about the availability of information, advice and support and disagreement resolution services
28. The Council held an annual review meeting to consider Y’s EHC Plan in late October 2024. The Council issued a decision letter to Ms X in mid-November 2024, proposing to amend the EHC Plan.
29. In late December 2024, Ms X complained to the Council that it had delayed in completing Y’s annual review and the decision letter of mid-November did not say what amendments the Council planned to make to the EHC Plan.
30. The Council responded to Ms X’s complaint in early January 2025. It upheld both aspects of her complaint. It also sent her a copy of the proposed amended EHC Plan.
31. Following consultation, the Council issued a final (amended) EHC Plan in late January 2025. It included increased provision for Y in some areas (including an increase in equine therapy or similar, and an increase in Occupational Therapy) and an increase in PA support (from 18 person-hours per week to 24). The Council issued a further final (amended) EHC Plan in mid-February to reflect its decision to increase Y’s Personal Budget (to reflect inflationary costs).
32. In March 2025, the Council told Ms X that its finance Panel had identified some Personal Budget expenditure that it could not match to the special educational provision or the outcomes identified within Y’s EHC Plan. The Council said it would recoup the cost of any items that had been duplicated. The Panel refused permission for Y’s PAs to withdraw cash for activities such as soft play and trampolining. It directed Ms X to the Personal Budget agreement she had signed, that included:

“You agree to […] pay invoices in respect of services from the Bank Account by cheque or an alternative secure method of payment. You must not transfer money out of the account or withdraw cash (please note that You will never pay for services by cash, however, with the prior permission of the Council, out of pocket expenses may be paid in cash)”.

33. Also in March 2025, Ms X submitted another formal complaint to the Council. It included the complaints set out at paragraph 1. She also lodged an appeal with the Tribunal about the content of Y’s final (amended) EHC Plan that the Council had issued in mid-February 2025.
34. The Council responded to Ms X’s complaint at stage one of its complaints process in early April 2025, saying that:
• Her right to appeal had not been affected. Her appeal had been accepted by the Tribunal and the formal appeals process was ongoing;
• There had been no point when Y’s “[Personal Budget] account had been left without sufficient financial resources to secure the necessary provision”; and
• The Personal Budget policy was waiting to be published on the Council website.
35. Also in early April 2025, Ms X complained at stage two of the Council’s complaints procedure that:
• The Council had changed not just Y’s Personal Budget in the final (amended) EHC Plan it issued in May 2024, but had changed the provision from one-to-one support to two-to-one support, without following the proper review process;
• The delayed annual review process meant that the agreed provision for Y was based on an-out-of-date EHC Plan, the associated Personal Budget had not been paid until early March, and “the money [already] in the account was for previous provision”;
• Y was still not accessing provision because the Council said Ms X must not transfer money onto prepaid cards for their PAs to use; and
• The Council still had not provided her with a copy of its Personal Budget policy.
36. The Council responded to Ms X’s complaint in late April. It said it could not understand how Y’s provision could have been affected when there was money available in their Personal Budget account. On the other issues of complaint, the Council said it was unable to add to what it had already said at stage one.
37. In July 2025, Ms X complained to the Ombudsman as set out at paragraph one.

My findings

38. Ms X complained the Council should not have issued a final (amended) EHC Plan in May 2024 without first holding a review meeting, issuing a decision to amend, or giving her chance to comment on an amended draft. She also complained that the Council did not include her right to appeal the Plan, or to request mediation about it, in an accompanying decision letter. However, the only changes that the Council made to the EHC Plan following the conclusion of the appeal were those requested by Ms X to fund additional PA support for Y. Had the Council declined to make the changes she requested, Ms X would not, on balance, have had a right to appeal the May 2024 final (amended) EHC Plan, because it had been issued following Tribunal. And so, she would not have had the related right to request mediation either. She would have had to wait for the next annual review to request additional PA support for Y, or requested an early annual review (which the Council would not have been obliged to agree to). The Council granted Ms X’s request for additional PA support sooner than would have been the case had it acted correctly. And so, there is insufficient evidence of significant personal injustice because of any fault by the organisation to justify further investigation by the Ombudsman. I have ended my investigation of these aspects of Ms X’s complaint.
39. The Council should have completed Y’s annual review within 12 months of the first EHC Plan. The annual review is not complete until the Council issues a decision to either amend, maintain or cease to maintain the EHC Plan. The final EHC Plan issued in mid-October 2023 was the first EHC Plan that the Council had issued for Y, and so the Council should have issued a review decision by mid-October 2024. It did not do so until mid-November 2024, a delay of one month. The Council then issued a final (amended) Plan in late January 2025, ten weeks after it had issued the review decision. This was two weeks later than the eight-week maximum set out in guidance. The Council was responsible for a cumulative delay of six weeks, which is fault. During this time, Ms X suffered frustration and Y suffered the injustice of being unable to access the increased provision set out in their final (amended) EHC Plan. They were still able to access the existing provision.
40. Ms X was right not to use the funds in Y’s Personal Budget account to pay for increased provision before this was agreed with the Council in late January. Any delay after this, until the Personal Budget associated with the final (amended) EHC Plan was paid into Y’s account in early March 2025, did not cause Y injustice. That was because the increased provision had been agreed and Ms X could have used the funds already in Y’s account to cover the costs of this from then onwards.
41. The Council’s Personal Budget Agreement, that Ms X signed, does not include mention of prepaid cards as a method of payment. However, it does say “you must not transfer money out of the account”. And so, the Council was not at fault in its refusal to allow Ms X to transfer money from Y’s direct payment account onto a prepaid card to enable Y’s PAs to pay for pay-at-point-of-use activities. The refusal did not leave Ms X without a route of payment for these aspects of Y’s provision. She could, for example, ask Y’s PAs to pay for activities themselves, and to invoice her accordingly.
42. The Council was at fault in that it did not provide Ms X with a copy of its policy on Personal Budgets when she requested it. However, this fault did not cause Ms X injustice because the Personal Budget Agreement she had signed included sufficient information about how a Personal Budget and direct payments should be managed.
43. The Council does not hold a separate policy on the use of direct payments for children with EOTAS packages but this is not fault as it is under no duty to do so. The Council’s policies on Personal Budgets for children with EHC Plans and the use of direct payments for children with EHC Plans are now set out on its website. And so, there is no need for me to make a service improvement recommendation.
44. The Council was at fault in its handling of Ms X’s complaint. Ms X’s complaint was about the issuing of the May 2024 EHC Plan, but the Council responded at stage one with reference to her live appeal about the EHC Plan issued in 2025. The Council had an opportunity to correct this at stage two but did not do so. The Council’s fault caused Ms X confusion and frustration.

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Action

45. Within one month of my final decision, the Council has agreed to:
1. Apologise to Ms X for the injustice caused by the faults I have identified through my investigation; and
2. Make Ms X a payment of £200, for Y’s benefit, in recognition of the loss of educational provision caused by the Council’s delays during the 2024 annual review process.
46. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended above.
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 should agree actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman