Summary: The Council was at fault for failing to provide Mrs X with the funds to commission her child, W’s, education for one term. It was also at fault for failing to include necessary information in W’s Education, Health and Care (EHC) Plan. The faults meant W missed out on education and caused Mrs X avoidable frustration. The Council will apologise, make a symbolic payment and amend its policy on EHC Plan personal budgets.

The complaint

1. Mrs X complained the Council failed to send her funds to allow her to commission her child, W’s, education. She also complained the Council did not amend W’s Education, Health and Care Plan to include details of W’s personal budget.
2. Mrs X said this meant W missed out on education and development and caused them both distress.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. 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

Relevant law, policy and guidance

EHC Plans

8. 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 which include:
• Section F: The special educational provision needed by the child or the young person;
• Section I: The name and/or type of educational placement;
• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

Personal budgets

9. 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.
10. Statutory guidance, ‘Special educational needs and disability code of practice: 0 to 25 years’ (the Code) says that where a child or young person has a personal budget, details of it should be included in section J of their EHC Plan. Where a person will receive a direct payment, section J must include the special educational needs and outcomes the payment will meet.
11. The Council has a policy on personal budgets. The policy says “The decision on whether to agree to a personal budget will always rest with the Education Provider” and then references clause 9 of the Special Educational Needs (Personal budgets) Regulations 2014 (the Regulations). Clause 9 says that where the child or young person’s provision is due to be delivered in a school setting, the council cannot agree a direct payment without the school’s agreement.
12. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals from parents and young people against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.

Special educational provision

13. 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) 

What happened

14. The Tribunal issued its decision on Mrs X’s appeal in mid-December 2024. Following the Tribunal, Mrs X sent the Council details of what she wanted the direct payments for and how much the provision would cost.
15. The Council issued W’s EHC Plan in mid-January 2025. In section J, it only said “Bromley Local Authority have agreed to a personal budget to provide the provision in Section F”. The Council had agreed direct payments at the level Mrs X had detailed in December 2024.
16. W’s EHC Plan stated they would have Education Otherwise Than At School (EOTAS). This is a form of education which is delivered entirely outside of a school setting. The special educational provision set out in the Plan included:
• A curriculum designed for W’s needs with significant levels of 1:1 teaching during the day;
• Tutoring for 10 hours per week initially, building up to full-time;
• Direct Speech and Language Therapy for 15 hours per year and indirect for five hours per year;
• 18 hours of direct Occupational Therapy and seven hours of indirect therapy per year;
• One or two hours of forest school per week, when W was able to engage with it;
• Play therapy for one hour per week;
• Social opportunities with peers; and
• Use of IT equipment as well as learning, art and craft and sensory resources and stationary.
17. The Council made the first direct payment in April 2025, ready for the summer term. W began receiving the provision in his EHC Plan and was able to engage with it all.
18. After Mrs X complained, the Council accepted its delay making the payment meant it did not provide the special educational provision in W’s EHC Plan during the spring term. It also said it would not amend W’s EHC Plan because section J cannot be appealed to the Tribunal and so is not under the Tribunal’s jurisdiction.

Findings

W’s EHC Plan and provision

19. Section J of W’s January 2025 EHC Plan does not include the necessary information as set out in the Code (paragraph 10), which was fault. In addition, the Council was at fault for failing to amend the EHC Plan once Mrs X complained that section J was unsuitable. The fact section J cannot be appealed to the Tribunal does not mean the Council is not required to comply with the Code. The faults caused Mrs X avoidable frustration.
20. The Council failed to secure W’s special educational provision in the spring 2025 school term. This was fault and meant W missed out on one term of education they were entitled to. In line with the Ombudsman’s guidance on remedies, I have recommended the Council make a symbolic payment to recognise the impact of the lost provision on W. The amount I have recommended is in line with the Ombudsman’s guidance on remedies, which says we typically recommend between £900 and £2400 to recognise the impact of lost provision. It takes into account W’s age, their stage in education, their needs, the fact they received no education in that period and their ability to engage in the provision once it was available for the summer term.

The Council’s policy on personal budgets

21. The Council’s policy says schools ultimately have responsibility on whether to agree direct payments because of clause 9 of the Regulations. However, the Regulations are clear that the decision on whether to agree direct payments is for the council. While a council could not agree direct payments for delivery in a school without the school’s consent, it could still agree direct payments for delivery in other ways. For example, occupational therapy delivered at a child’s home or as part of EOTAS. The Council’s policy does not allow for this, which is fault.

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Action

22. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise and pay Mrs X £150 for the frustration she felt because section J of W’s EHC Plan did not comply with the Code and because the Council failed to address that issue when she complained about it. 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 the apology.
2. Pay Mrs X £2,100 to recognise the impact of one term’s lost education on W.
3. Highlight to staff that section J of a child’s or young person’s EHC Plan must include the information required by the SEN Code. If the Council becomes aware that section J of a final EHC Plan is not suitable, it must amend the Plan.
23. Within three months of the date of my final decision, the Council will amend its policy on personal budgets and direct payments to reflect the Council is responsible for deciding whether to agree direct payments and to represent the restriction created by clause 9 of the Regulations more accurately.
24. The Council will provide us with evidence it has complied with the above actions.

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Decision

25. I find fault causing injustice. The Council has agreed actions to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman