Summary: Ms X complained the Council delayed issuing an Education, Health and Care (EHC) Plan for her son, Mr Y, after the annual review in January 2024. She also complained the Council did not provide Mr Y with education for the 2024-2025 academic year. Ms X said this distressed her and Mr Y missed education. There was fault in the way the Council delayed issuing the EHC Plan after the annual review, did not oversee the EHC Plan, delayed considering the personal budget request and delayed implementing provision for Mr Y. This frustrated and distressed Ms X and Mr Y missed provision. The Council has acted to remedy this fault in its complaint process.

The complaint

1. Ms X complained the Council delayed issuing an Education, Health and Care (EHC) Plan for her son, Mr Y, after the annual review in January 2024. She also complained the Council did not provide Mr Y with education for the 2024-2025 academic year. Ms X said this distressed her and Mr Y missed education.

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The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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What I have and have not investigated

6. I have investigated Ms X’s complaint since September 2024, 12 months before she approached the Ombudsman. I reference events prior to this for context in this matter.
7. I have not investigated earlier events as Mrs X could have complained about them earlier. This is a late complaint and there is not enough reason to accept those parts of it for investigation now.

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How I considered this complaint

8. I read Ms X’s complaint and spoke to her about it on the phone.
9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

11. 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. 
12. 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)  
13. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 

14. quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 
15. 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) 
16. 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.
17. 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.

18. 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.
19. 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.
20. 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.
21. 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.
22. Section 19 of the Education Act 1996 says that the council 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 make 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.

What happened

23. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
24. Mr Y has an EHC Plan. The Council reviewed Mr Y’s plan in January 2024. It recommended changes to the EHC Plan.
25. The Council sent the draft plan to Mr Y in June 2024. Ms X asked the Council to make changes and asked for a personal budget.
26. In July 2024, the Council recorded it was supporting Mr Y to apply for an apprenticeship. The Council supported Mr Y with interview skills until November 2024. Mr Y reported he was “taking time to work and sit back and consider next steps further”. The Council told Mr Y he could access support until he turned 25 if he wanted to. The Council ended its employment support.
27. Ms X contacted the Council in March 2025. She said Mr Y had been unsuccessful in his apprenticeship application. She stated he had taken a break for the apprenticeship but would like to access education.
28. Ms X complained to the Council in June 2025. She complained about poor communication about reviewing Mr Y’s EHC Plan, lack of provision and the personal budget request delays.
29. The Council issued its complaint response in July 2025. The Council accepted communication was poor, delays reviewing the EHC Plan, delays considering the person budget request and it had not acted when Ms X asked the Council for provision in March 2025. The Council said this meant Mr Y missed provision from March 2025 until July 2025.
30. The Council offered:
• £250 for poor communication.
• £200 for pursuing the complaint.
• £400 for the delays reviewing the EHC Plan.
• £200 for delays considering the personal budget request.
• £1,300 for missed provision from March 2025 until July 2025.
31. Ms X asked the Council to escalate the complaint the following day. She said she felt they deserved more acknowledgement from the Council.
32. The Council issued its final response in August 2025. The Council repeated its offer from its first complaint response which accepted fault. The Council explained the remedies offered were symbolic and not compensation. The Council reviewed its offer and confirmed it would now offer:
• £450 for the communication issues and pursuing the complaint.
• £1,300 for the missed provision between March and July 2025.
• £400 for the delays in the EHC Plan review process.
• £200 for the delay in considering the personal budget request.
• £500 for the failure to retain oversight of the EHC Plan during the 2024-2025 academic year.
• £300 for the impact on Mr Y.
33. The Council issued an updated EHC Plan for Mr Y in August 2025.
34. Ms X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Ms X would like the Council to make a payment for missed provision and distress.
35. In response to my enquiries the Council stated it was supporting Mr Y to access an apprenticeship. It accepted the fault it detailed in its complaint response and explained its decision making in the remedies it offered. The Council stated Ms X rejected the offer, but it was still willing to make the payment.

My findings

Education and EHC Plan provision

36. Councils have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. However, Mr Y is above statutory school age, so the Council does not have a responsibility to provide Mr Y with education under this act.
37. However, the Council does have to provide the provision detailed in the EHC Plan until it ceases to maintain the plan. The Council explained it was supporting Mr Y to apply for apprenticeships at the start of the 2024-2025 academic year. It evidenced Mr Y saying he was “taking time to work and sit back and consider next steps further”. It also evidence Ms X stating they had taken a break for the apprenticeship but would like to access education again in March 2025. The evidence shows the Council supporting Mr Y when he wanted the support and this stopped while he wanted to take time to work and consider his next steps. However, the Council did not act when Ms X told it Mr Y wanted to access education again. This is fault and Mr Y missed EHC Plan provision from March 2025 until he started a course in September 2025.

Annual review

38. The Council must review the EHC Plan every 12 months. The Council accepted it did not do this during the 2024-2025 academic year. This is fault. Mr Y’s EHC Plan was therefore not up to date with his needs.
39. After the annual review, if the Council intends to amend the EHC Plan, it must issue the final amended EHC Plan within 12 weeks of the annual review meeting, by April 2024. I have only considered this matter from September 2024 for the reasons set out above. The Council did not issue the final plan until August 2025, an 11-month delay. This is fault, frustrating Mr Y’s appeal right to the Tribunal.

Personal budget

40. When the Council receives a personal budget request it should promptly consider the request and respond. The Council accepted it delayed considering the request. This is fault, frustrating Ms X and potentially delaying provision.
41. The Council accepted all fault in its complaint response. It offered a remedy for all points, and included a remedy for having to make the complaint and the impact on Mr Y. All the Council’s offers are in accordance with the Ombudsman’s guidance on remedies and are suitable offers in this case.
42. The Council has remedied any injustice caused through its complaint response. Ms X rejected this offer. The Council has offered to repeat the offer for Ms X and Mr Y to consider.

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Decision

43. I have completed my investigation. I have found fault by the Council, which caused injustice to Ms X and Mr Y, but the Council has taken action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman