Summary: There was fault by the Council. The Council accepted in its official complaint response that it delayed carrying out an annual review of an Education, Health and Care Plan. It also delayed making a Direct Payment so Mrs X could organise the tuition and provision stated in Education, Health and Care Plan. The Council offered a financial remedy during its complaints process, but an increased symbolic payment remedies the injustice to the family.

The complaint

1. The complainant, Mrs X, complains for her young adult, Y. Mrs X says the Council did not carry out annual reviews of an Education, Health and Care (EHC) Plan according to legal timescales.
2. Mrs X says the Council delayed paying her a direct payment which meant that Y did not receive all the provision in Section F of an Education, Health and Care Plan for seven months. Mrs X said that not being able to pay providers caused her stress and inconvenience.

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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 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

8. Y has an EHC Plan that named Education Other Than At School (EOTAS). Mrs X received direct payments so she could pay for the provision in Section F of the EHC Plan.
9. The Council issued a final EHC Plan in March 2024.
10. A review, combined with the review of the EOTAS provision happened on 11 July 2024. But Mrs X received no paperwork from this meeting. The annual review was due in January 2025 but was not completed until July 2025, a delay of 6 months.
11. The Council said in response to my enquiries ‘the direct payment should have been reviewed as part of the annual review process but as the review did not take place within the required timescales, this delayed the necessary scrutiny for payments. This was fault by the Council due to staff shortages which has been addressed by the recruitment of six additional officers’.
12. Mrs X did not receive a direct payment to pay for the provision in September 2024. However, the Council did pay the full amount as a backdated payment in April 2025. This was a seven month delay.
13. The Council has accepted it was at fault. So, my role is to decide what injustice has been caused to Y. While Mrs X did receive the full direct payment, it was delayed and so Mrs X says Y’s provision was reduced as she was not able to pay for it at the time.
14. The Council said it has reviewed Y’s direct payment account to identify any potential shortfall in provision over the full academic year from September 2024 until August 2025. (Y’s EOTAS package can be used in holidays as well as term time as this is specified in their EHC Plan.)
15. The Council has said that it has not received all the invoices from Mrs X, so it cannot use these to assess the provision given. The Council has calculated that Mrs X has used 72% of the EOTAS funding over the year but without invoices it cannot decide what provision was not given in the period when the direct payment was delayed.
16. During its complaints process, the Council offered a symbolic payment to Mrs X of £400 to recognise the loss of educational provision due to the delay. The Council has said that it has not recouped any of the direct payment remaining at the end of the academic year, so given the flexibility in Y’s EHC Plan, Mrs X can use the funding to make up the missed provision.
17. There has been fault by the Council as it delayed an annual review and making a direct payment to Mrs X. While I understand that the full payment has now been made and Mrs X can now make up the lost provision, there has been injustice caused to both Mrs X and Y.
18. Mrs X has been put to considerable stress and inconvenience, trying to organise provision without knowing she would get the funds to pay. Y has suffered disruption to her usual educational routine and it may not be possible to condense the extra sessions into a shorter amount of time. I can also see the Council has tried to remedy the complaint by holding an annual review, paying the personal budget and offering a symbolic payment to the family.
19. In my view, the £400 payment offered by the Council is low compared to our guidance on remedies. I consider the payment of £400 recognises the distress and uncertainty to Mrs X. But does not reflect the loss of consistent educational provision to Y during this period. While I appreciate some of this provision can technically be made up with the backdated payment, I do consider that a payment of £600 for the disruption of Y’s education is warranted.
20. The Council has a current SEND transformation project, aiming to introduce a digital system so that annual reviews are no longer checked manually, to remove delays. Given this, I will not make further service improvement recommendations.

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Action

21. Within one month of the date of the decision on this complaint the Council should:
• Confirm in writing to Mrs X that she can use the remaining money in the direct payment account from the 2024-2025 academic year to make up educational provision.
• Pay Mrs X £1000.
22. The Council should provide us with evidence it has complied with the above actions.

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Decision

23. I have completed my investigation and 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