Summary: There was fault in the management of the annual review process for an Education, Health and Care Plan. This caused uncertainty, unnecessary time and trouble to Ms X and denied her a right of appeal about her child’s educational provision over an extended period. The Council has agreed to apologise, make a symbolic financial payment and make service improvements.

The complaint

1. Ms X complains the Council has mismanaged her child’s Education, Health and Care Plan by missing statutory deadlines and says as a result the Plan does not reflect her child’s needs. Ms X says the Council changed the educational offer for her child as a result.
2. Ms X complains the Council did not agree to direct payments so she could commission the same tutors her child had previously worked with.
3. Ms X complains Educational Psychology (EP) advice was requested in May 2024, agreed by the Council’s panel by January 2025, but not provided until November 2025.
4. Ms X also complained to the Council about:
• A failure to proceed with careers advice offered in 2022;
• A delay in providing a caseworker when her child stopped attending school in October 2023;
• Failure to complete the November 2023 annual review;
• Delay in completing the December 2024 annual review, with the final EHC plan and appeal rights not provided until August 2025;
• Omissions from the 2025 Plan (for example a lack of outcomes, out of date child views, and missing advice) with the Plan written for a school not an Education Otherwise than at School (EOTAS) package.
• Failing to seek her views on changes to EOTAS arrangements in 2024/5;
• Failing to advise her about the need to apply for a personal budget (direct payments) to use providers not approved by the Council;
• Poor communication.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than twelve months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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)
8. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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.
10. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
11. 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)

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What I have and have not investigated

12. I have investigated from Summer 2024 (which is twelve months before Ms X complained to the Council/the Ombudsman) until Summer 2025, when an amended final EHC Plan for EOTAS was issued.
13. I have not investigated events before July 2024; these are too late for us to consider. I consider if Ms X was dissatisfied with her child’s education, or the Council’s management of the EHC Plan, Ms X could have brought a complaint sooner. (Local Government Act 1974, sections 26B and 34D, as amended)
14. I have investigated the complaint issues in paragraphs 1-4 above except the omissions and inadequacies Ms X alleges about the August 2025 EHC Plan.
15. Ms X has appealed the August 2025 Plan 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 Tribunal can consider matters of evidence, child views, needs and provision. The Ombudsman cannot investigate where Ms X has used an alternative remedy to the Tribunal.

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How I considered this complaint

16. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
17. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
18. 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 found

Relevant law and guidance

19. 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 council can do this.

20. A 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).
21. A Personal Budget is the amount of money a 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.
22. A child’s parent or the young person has the right to request a Personal Budget and direct payments when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also make a request a during a statutory review of an existing EHC Plan.
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.
24. Direct payments for special educational provision are voluntary, and councils cannot require parents to use a direct payment.
25. 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 twelve months of the first EHC Plan and within twelve 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 process is only complete when the council issues 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) 
26. Councils can delegate arrangements for the review meeting to schools, but the meeting is just one part of the review process. The duty is on the Council to ensure all the steps in the review process are completed within twelve months of the previous review.
27. If the council decides not to amend an EHC Plan after a review it must inform the child’s parents or the young person of their right to appeal this decision to the tribunal.
28. 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.
29. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s special educational needs (SEN), the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment.

30. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which makes the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have. We refer to this as the s.19 duty.
31. If a child has an Education, Health and Care (EHC) Plan the council also has an ongoing duty to arrange the support guaranteed by the Plan. However, this might not always be possible, such as where the SEN support is designed for the child’s normal classroom setting.
32. A Council may arrange for any special educational provision that it has decided is necessary to be made in an EHC Plan otherwise than in a school (EOTAS) but only if it is satisfied it would be inappropriate for the provision to be made in any school. Before doing so, the Council must consult the child’s parent or the young person. (Section 61 Children and Families Act 2014). EOTAS must be set out in Section F (provision) of an EHC Plan. The Council has the same legal responsibility for delivering the provision as if the pupil attended a school.
33. Education outside a school setting can therefore be provided by councils either under the s.19 duty (which usually happens when the absence is intended to be temporary and the child is expected to reintegrate into school) or councils can decide a school setting is not appropriate for some, or all, of a child’s special educational provision and set out details of a s.61 EOTAS package in the EHC Plan. Where provision is made under s.61 and included in the EHC Plan there will be a right of appeal to the Tribunal if a family disagrees with the type or amount of provision made by the Council, which we would expect them to use.

What happened

34. Ms X’s child started secondary school in September 2022. A first EHC Plan was issued that month.
35. An annual review meeting was held in Spring 2023. The Council’s decision was to maintain the Plan and not amend it. Ms X did not appeal this decision.
36. In late 2023 a further review was held. Ms X’s child was not attending school at this time due to anxiety. The Council’s decision was to amend the Plan.
37. The Council agreed interim alternative provision under s.19 Education Act 1996 in May 2024 pending amendment of the EHC Plan and a possible change in setting.
38. The Council issued a draft Plan in mid-May 2024. Ms X asked the Council to consult a specialist school but, if this consultation was unsuccessful, to consider EOTAS under s.61 of The Children and Families Act 2024 as an alternative to a school setting.
39. The special school declined to offer a place. The Council told Ms X in August 2024 it had agreed EOTAS in principle and would provide more details of the provision. Ms X’s child had already started to attend one alternative provider (I assume under the Council’s s.19 duty) and a second was added in September 2024, with a third (group-based provision) to start once Ms X’s child felt ready.
40. No final Plan was issued between the review meeting in late 2023 and the next review meeting held in December 2024.
41. The December 2024 review noted Ms X’s child now had an EOTAS package, which was going well and Ms X was happy with progress.
42. Also in December 2024, the Council’s panel approved a request for EP advice to inform provision.
43. The Council’s decision after the December 2024 review was to amend the Plan (again). The Council did not make this decision until March 2025.
44. Alongside annual reviews of the EHC Plan, the Council also held reviews of the EOTAS provision for Ms X’s child six weekly. The evidence supported good progress.
45. In Autumn 2024 and Spring 2025 the Council wrote to all families receiving EOTAS packages about a new EOTAS programme the Council was developing. It said this may mean transitioning to new providers and if any elements of a child’s EHC Plan could not be met via the new EOTAS programme then parents could request a personal budget (I assume it meant direct payments) to enable them to put this provision in place. My understanding is the Council had a set list of providers it had quality assured and who had tendered for EOTAS work.
46. In June 2025, the Council wrote to Ms X to explain there may be a change in providers in her child’s programme from September due to its new EOTAS programme.
47. Ms X says she was chasing the Council in Spring / Summer 2025 for the draft Plan that was overdue.
48. In mid-June 2025 the Council confirmed it intended to change Ms X’s child’s providers in September. One provider was to continue, but the current provider delivering academic tuition was to stop. Ms X explained she considered the provision the Council intended to stop was much more effective than the provision it intended to continue. Ms X said there had been frequent changes in staff with the latter provider, and most of its staff were teaching assistants and not qualified teachers. Ms X said her preferred provider had already helped her child pass their maths exam and was working towards an English exam that term. Ms X wanted to continue with the same provider.
49. Ms X says she then received the draft amended EHC Plan but supporting documents, such as advice from providers, were not included. Ms X says when the Council did send this evidence, she disagreed with some of the information that had been recorded in the annual review paperwork.
50. Ms X complained to the Council in June:
• The amendment notice and draft Plan was late, this should have been sent within four weeks of the December 2024 meeting;
• The final amended Plan was late and should have been issued within twelve weeks of the meeting;
• The draft Plan was still written for a school not an EOTAS package.
• There was no date when the final Plan would be issued.
51. Ms X says the Council told her the draft should have been issued in March, not June. The Council counted the timeframe as starting from when its monitoring team received the annual review paperwork, not the date of the meeting. Ms X says the Council agreed to explore obtaining EP advice and to meet her to discuss provision. Ms X says at this meeting she was advised she would need to make a request for a personal budget (direct payments) to continue using her preferred provider.
52. Ms X raised concerns the Council had not used its formal complaint process and said decisions were being made based on out of date and incomplete paperwork.
53. The Council advised Ms X to make a formal complaint, which she did, raising concerns about missed statutory timeframes, the content of the draft Plan (including missing outcomes and child views), poor communication and delay in the EP advice. Ms X also raised concerns dating back to 2022-3. Ms X said the outcomes she wanted from her complaint were for the Council to provide a timeframe to finalise the EHC Plan and for the Council to advise about the level of service and communication she could expect going forward.
54. Ms X requested a personal budget (direct payments) to continue academic tuition with her child’s current teachers. The Council refused this for English and maths but agreed two hours per week for another subject. The Council’s reasons for refusing were because it had recently commissioned providers delivering similar or equivalent provision who were quality assured.
55. The Council replied to the complaint at stage one of its formal process in August 2025. Its response included that:
• The request EP advice had been agreed. The Council said Ms X could have requested a statutory reassessment of need, but this would have meant her child was without the support of their EHC Plan for at least fourteen weeks as its practice was to ‘start the clock’ at the 6 week point of a statutory assessment for an EHC Plan. The Council acknowledged ongoing delay in the EP service. When I made enquiries about this advice the Council confirmed a reassessment gathers new evidence but does not replace the existing plan until an amendment or cease decision is made.
• The Council said there had been delay by the school in sending the paperwork after the December 2024 review and this was not received until March 2025. It said the annual review was a ‘delegated duty’ to schools. The Council did however uphold this part of the complaint and acknowledged delays in the draft and final Plan and that it omitted to send appendices with the draft plan. However, the Council said the information was discussed at the review meeting and her child’s views obtained. The Council said the final Plan would reflect their EOTAS status.
• The Council said its development of an EOTAS programme began before Ms X’s child had EOTAS status which is why she had not been informed about the new programme before. The Council did uphold there had been delay in communicating information about the September timetable and about personal budgets.
• The Council apologised for the parts of the complaint it had upheld, including some communication lapses. It said Ms X would have an allocated EHC Plan officer and it would be finalising the Plan shortly.
56. The final EHC Plan was issued in late August 2025. Ms X has appealed this Plan to the Tribunal.
57. An EOTAS review in October noted Ms X’s child had 100% attendance with the Council’s choice of provider.
58. The EP advice requested in late 2024 and approved in January 2025 was provided in November 2025.

Analysis

59. The scope of this investigation is July 2024 to August 2025 and does not include consideration of the content of the EHC Plan, which Ms X has appealed to the Tribunal.
60. An annual review meeting was held by the school where Ms X’s child remained on roll in late 2023. The Council issued a decision to amend and draft Plan in Spring 2024, but by July / August 2024 the Council had not issued a final Plan to complete the process. This was fault. The Council had approved EOTAS by August 2024 and it should have finalised the existing draft Plan that had been circulating since March 2024 to reflect this change in status. By not doing so it is unclear whether the Council was treating Ms X’s child as a s.61 EOTAS pupil or whether they were receiving alternative provision under s.19 due to being unable to attend their named school.
61. Failure to update the final Plan denied Ms X a right of appeal if she was unhappy with the provision offered from late 2023 to Summer 2025. This was an injustice.
62. The evidence I have seen indicates Ms X was broadly content with the EOTAS provision in place from Summer 2024 to Summer 2025 until the Council sent her a changed timetable for September 2025. This prompted Ms X to make a complaint, including raising concerns about past faults for the first time.
63. There was an excessive delay by the Council obtaining EP advice. This was considered necessary to inform the change from school to EOTAS and to inform the type and amount of provision needed. The absence of advice, as well as the denial of appeal rights, restricted Ms X’s ability to question the provision made.
64. The next review of the EHC Plan was held in December 2024. The EHC Plan in force at that time remained the 2022 Plan still written as though Ms X’s child was in mainstream school although the Council had approved EOTAS from August 2024 and started to hold EOTAS progress reviews. The Council is correct to say it can delegate the meeting arrangements to schools. Here it delegated it to the school named on the Plan in 2022, but which Ms X’s child had not attended since 2023. Had the Council amended the Plan status to EOTAS in Summer 2024, the Council would have been responsible for the review meeting arrangements.
65. Once the meeting was held the Council should have decided whether to amend within four weeks of the meeting, not receipt of the paperwork. It did not decide for three months. This is fault. The Council retained overall responsibility for ensuring the steps after the meeting were completed on time. The Council did acknowledge at local complaint level it was at fault and there had been delay completing the review and amended Plan.
66. The final Plan should have been issued within twelve weeks of the meeting in December 2024 and was not issued until August 2025. This was excessive delay and extended the period Ms X was without appeal rights.
67. The Council decided to develop an in-house run EOTAS programme. It communicated this to EOTAS families in Autumn 2024. It says it did not tell Ms X until Spring / Summer 2025 because her child did not yet have EOTAS status. However, Ms X’s child had been approved for, and received, EOTAS since Summer 2024, and their Plan had not been changed to EOTAS in Spring 2025 when the Council did write to Ms X about the general change in arrangements. Either Ms X’s child was considered by the Council to be receiving s.61 EOTAS from Summer 2024, or they did not become EOTAS until August 2025. Their Plan status did not change in Spring 2025. The Council has acknowledged in its own complaint response it was late informing Ms X about proposed changes for her child and apologised.
68. Ms X’s complaint stemmed from dissatisfaction about the change of providers from September 2025. Ms X has explained the providers have different levels of expertise. It is not for the Ombudsman to decide the type of provision or level of expertise needed for a child; this is a matter for the Council or Tribunal. Ms X did get a right of appeal soon after the Council made changes to her child’s programme of study which she has used.
69. Ms X did request direct payments to use her preferred provider.  The Special Educational Needs (Personal Budgets) Regulations 2014 say a council can refuse direct payments if they would not secure provision in an appropriate way, would have an adverse impact on other services which the council provides or arranges for children and young people with an EHC plan, or if securing the proposed agreed provision by direct payments is not an efficient use of the authority’s resources.
70. The reason the Council gave for refusing some provision was because it had already commissioned its own preferred providers and quality assured them.
71. It may be that providing Ms X with direct payments would have an adverse impact on other services if block contracts have been issued, or would not be an efficient use of resources, but the Council has not explained why this is the case. This is fault. Ms X however has a right to ask for a formal review if she is not satisfied with the explanation given. A Tribunal will specify the type and amount of provision but does not usually specify a particular provider is used, so Ms X would need to use her review right as Tribunals do not adjudicate on direct payment decisions.
72. The Council provided information to parents generally that if any elements of a child’s EHC Plan could not be met via its new EOTAS programme then parents could request a personal budget to enable them to put this provision in place. This was fault. The law requires the Council to secure all the special educational provision in an EHC Plan under s.42 Children and Families Act 2014. It cannot require parents to secure provision themselves; the use of direct payments to secure provision is voluntary and must be requested by parents, not imposed.
73. In summary, I have identified the following fault:
• Failure to complete EHC Plan reviews on time and to provide a final EHC Plan in Summer 2024 that reflected the change in education status.
• Delay in providing EP advice.
• A lack of clarity why the direct payment request was refused. This does not mean I have found the Council made the wrong decision, simply that it needs to explain its decision more clearly with reference to the matters set out in the Regulations.
• Provided incorrect advice about reassessments in its complaint response.
• Wrongly counted the period for completing an annual review from receipt of the school report, not the date of the meeting.
• Confusion about whether Ms X’s child was receiving alternative provision under s.19 Education Act 1996 or s.61 Children and Families Act 2014. This had implications for who was responsible for arranging the annual review meeting and whether Ms X should have been informed about the Council’s EOTAS changes alongside other parents in Autumn 2024. There was good practice in holding regular progress reviews even though it was not clear which legal duty provision was being made under prior to Summer 2025.
• Failing to provide an appeal right between 2023 and 2025.
• Provided incorrect advice to parents about responsibility for securing provision in an EHC Plan where the Council’s EOTAS programme does not meet need.
74. The fault has caused Ms X unnecessary time and trouble chasing a final plan and EP Advice that reflected her child’s current situation, uncertainty whether her direct payment request was properly considered, and denied her an appeal right at a time of significant change in her child’s education. However, I have not found that Ms X’s child was without appropriate education, and I note Ms X was broadly content with the EOTAS provision up to Summer 2025. After that date Ms X had a right of appeal if she was dissatisfied with the education, which she has used.

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Action

75. We have the power to make recommendations to remedy the injustice experienced by complainants and members of the public affected by fault we identify. (Local Government Act 1974 s 31(2B)). I have set out below the actions the Council should take to remedy the injustice to Ms X and those people who are also caused an injustice by the Council’s fault.
76. Within four weeks of my final decision, the Council will:
• Apologise to Ms X for the fault this investigation has identified.
• Pay Ms X a symbolic payment of £1000 to acknowledge the injustice caused.
77. The Council will consider any formal review request of the direct payment decision if Ms X chooses to submit one and explain its rationale with reference to reasons set out in the Regulations.
78. Within two months of my final decision, the Council will:
• Revisit its internal and external advice about its EOTAS programme to ensure it is clear the Council retains the legal duty to secure all the special educational provision even where this falls outside what currently commissioned providers can offer. Information to parents should be clear that direct payments can be requested, but are voluntary, and if a parent does not want a direct payment the Council must commission any bespoke provision required by an EHC Plan itself.
• Ensure that when decisions are made to change a pupil’s status from a school setting to s.61 EOTAS that EHC Plans are updated. This allows parents the right to appeal if they disagree with EOTAS provision made.
79. I have not made recommendations about the timeliness of EHC processes as following a recent OFSTED and Care Quality Commission area report in June 2025, when systemic failings were found, an improvement notice has been issued for the Council to take steps to improve its service. There is no purpose in the Ombudsman duplicating recommendations that are already being actioned.
80. The Council will provide us with evidence it has complied with the above actions.

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Decision

81. 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