Summary: Mrs F complained the Council delayed issuing her son’s Education, Health and Care Plan and delayed providing the personal budget she requested to secure his provision. We found fault which caused uncertainty and for Mrs F’s son to miss out on a term of support. The Council has agreed to apologise and pay Mrs F a symbolic payment to remedy this injustice.

The complaint

1. Mrs F complained the Council delayed issuing her son’s Education, Health and Care plan and delayed providing the personal budget she requested to secure his provision.
2. As a result, her son did not receive all the provision in his plan causing him to disengage and deteriorate and causing her significant 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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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.
6. 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)
7. 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)
8. 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

9. I spoke to Mrs F about the complaint and considered the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice ("the Code")
• The Special Educational Needs and Disability Regulations 2014 (“the Regulations”)
10. Mrs F 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

Relevant law and guidance

Special educational needs

11. A child or young person with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the young person's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year. (Children and Families Act 2014, s42)
12. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
13. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Reviewing EHC plans

14. 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. A council can consider holding an early review if there is a change in the child’s circumstances.
15. 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 discontinue the EHC plan. This must happen within four weeks of the meeting. (Special Educational Needs and Disability Regulations 2014, reg 20(10))
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. 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 (i.e. 12 weeks from the review meeting).

EOTAS – Education other than at school

17. A council may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school. (Children and Families Act 2014, s61(1)) The provision is set out in the EHC plan.

Personal budgets

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 council must consider a request for a direct payment if a child’s parent made it at any time during the period in which the draft EHC plan is being prepared or reviewed. (Special Educational Needs (Personal Budgets) Regulations 2014, reg 4) Where a child or young person has a personal budget, details of it should be included in section J of their EHC plan.

What happened

20. Mrs F’s son, Mr J, has autism, mutism and anxiety. He turned 18 years old in 2024. Mr J has an EHC plan and had been receiving EOTAS since 2020. This was funded using a personal budget, including direct payments.
21. The personal budget was set out in an EHC plan issued on 7 June 2024. It said Mr J’s provision was:
• Mentoring with a specialist tutor 6hrs/week for 38 weeks and with a specialist online provider 1hr/week.
• Speech and language therapy (SALT) 1hr 20/week.
• Occupational therapy (OT) 1hr 20/week.
• Psychotherapy 1hr/week for six weeks.
• SEN coordinator support of 1hr/week.
• A budget for resources of £621.
22. The Council paid Mrs F a direct payment of £1,575 per month to fund the mentoring and SEN coordinator and a lump sum for the resources. The Council paid the OT, SALT and psychotherapy on receipt of invoices.
23. Mr J’s next annual review was due in March 2025 but the SEN coordinator requested an early review. This was to ensure Mr J’s provision remained appropriate and consider his move to adulthood. The early review meeting was held on 5 November 2024. This meant any amended final EHC plan, including the agreed personal budget, should have been issued by 28 January 2025.
24. The review recommended changes to Mr J’s provision, including doubling the online mentoring hours, a new specialist tutor for 50 weeks per year, community access, careers guidance and mental health support.
25. On 4 December, the Council advised Mrs F it had agreed to doubling the online mentoring hours and to a new specialist tutor for 38 weeks per year. It said it would fund a SEN coordinator for two hours a month. But the Council asked for more details about community access, careers guidance and the SALT and OT hours. Mrs F replied on 9 December giving more information including about community access and clarifying the OT and SALT hours. She disputed the Council’s refusal to fund therapy on the grounds it was health provision. Mrs F said she could not find a SEN coordinator to oversee Mr J’s provision for less than four hours per month.
26. On 28 January 2025, Mrs F asked the Council if it had decided on the new personal budget. She also said Mr J’s SALT was leaving and asked the Council to approve a change of provider. The Council replied that it required further information in relation to community access, careers guidance, the SALT hours and the mentor’s travel. Mrs F provided more information the next day.
27. Mrs F continued to chase the Council for a decision and a draft EHC plan over the next few months. The Council emailed on 8 April apologising for the delay. It said some budget had been agreed but further clarification was needed. The Council offered to arrange direct payments for the provision it had agreed to.
28. Mrs F sent more information on 22 April. In response to my enquiries the Council said it had now received all the information it required.
29. Mr J’s annual review meeting was held on 1 May. A draft EHC plan should have been issued on 1 June and a final amended EHC plan, including the personal budget, should have been issued by 24 July.
30. The review again recommended the extra provision already requested and in addition 12 hours per week of specialist tutor mentoring, an educational psychology assessment and some IT resources.
31. Mrs F complained to the Council on 18 June about the delay in issuing a draft EHC plan and agreeing the personal budget. She said the SEN coordinator was unable to oversee Mr J’s package due to the lack of agreement to fund four hours per month and the OT could not support due to a lack of budget to access programmes. Mrs F said Mr J’s progress had stagnated as a result. Mrs F continued to chase the Council for a decision and EHC plan.
32. The Council replied to Mrs F’s complaint on 29 July. It said the personal budget had now been agreed. It apologised for the delay in issuing the final EHC plan and offered Mrs F £300 to remedy the distress that caused. The Council said Mr J had not missed out on provision as the direct payment agreed in June 2024 had continued to be paid.
33. A draft EHC plan was issued on 13 August and the final on 2 September, a delay of six weeks. At this point Mrs F had the right to appeal to Tribunal.
34. The final EHC plan did not contain details of the personal budget for OT or SALT but the Section F provision was:
• Mentoring with a specialist tutor 12hrs/week, for a maximum of 600 hours per year.
• SALT 1hr/week, up to 50hrs/year.
• OT 45-50 minutes/week (plus liaison time), up to 50hrs/year.
• SEN coordinator support of 1hr/week.
• Community access, careers guidance and accredited courses support.
• An Educational Psychology assessment.
• A budget for resources and equipment of £2,250.
35. The Council’s final complaint response of 10 September said it was now processing the direct payments and a remedy had already been offered for missed provision. Mrs F came to the Ombudsman in October, she said the new provision had not yet been funded and Mr J was not receiving his SALT provision.

My findings

36. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Following the early review on 5 November 2024, the Council shod have sent a letter saying it had decided to amend the plan on 2 December. I have seen no evidence it did so. It then should have issued an amended final EHC plan, including the personal budget it had agreed, by 28 January 2025. It failed to do so, which is fault.
37. The Council asked Mrs F for more information about the requests for extra provision but by 9 December the Council had already agreed to some of it. My view is it should have issued a final EHC plan setting out the personal budget it had agreed. This would have given Mrs F the right to appeal to the Tribunal about the extra provision.
38. Instead the Council asked for more information on 30 January. Mrs F replied the next day but it took the Council until 8 April to advise her that it required more clarification. This delay is fault.
39. In addition, I have seen no evidence the Council replied to Mrs F’s request for approval of a new SALT provider after January 2025. This is fault.
40. Once it received all the information on 22 April the Council could have issued a draft EHC plan setting out the proposed personal budget. But Mr J’s annual review then took place. This gave the Council a new deadline of issuing the final EHC plan, with agreed personal budget, by 24 July. But it did not issue a final amended plan until 2 September. This is a delay of about six weeks and is fault.

Did the fault cause injustice?

41. When we have evidence of fault, we determine whether it has caused an injustice to the person. We do this by considering what would have happened if nothing had gone wrong.
42. If the final EHC plan had been issued on 28 January it would not have contained all the extra provision Mrs F had requested in November 2024 as this had not been agreed by the Council. The Council failed to confirm whether Mrs F could appoint a new SALT provider so I cannot say it would have agreed to this. It may be that Mrs F would have decided to appeal or go to mediation about the provision. Although SALT ceased at the end of January 2025, I cannot conclude on the balance of probabilities that the Council would have approved the proposed replacement provider or that equivalent SALT provision would have been secured from February 2025. Therefore I find fault causing uncertainty about the provision Mr J may have received between February and July 2025 if there had been no delay in issuing the EHC plan. This uncertainty is an injustice.
43. But I consider Mr J missed out on provision from 24 July to October 2025 (approximately one term). This is because the Council went on to agree to most of the extra provision requested in the May 2025 review and the final EHC plan sets out that provision would be for a maximum of 600 hours per year (50 weeks). So if the plan had been issued on 24 July, provision would have been made over the summer holiday. Mrs F continued to receive the direct payment which funded some mentoring and the SEN coordinator but I find that J likely missed out on OT, SALT, additional mentoring and the additional provision such as community access and careers guidance for one term. This is an injustice.
44. Our guidance on remedies says where fault has caused injustice we will normally consider asking for a moderate, symbolic payment to acknowledge any avoidable uncertainty and distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
45. Where fault has resulted in a loss of educational and SEND provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the harm caused by that loss. Taking into account:
• the severity of Mr J’s SEN,
• that he could have been receiving half of his mentoring provision using the direct payment agreed in 2024,
• that it is likely that additional provision now could remedy some of the loss, and
• Mrs F’s delayed right of appeal to tribunal,

I consider £1,800 to be an appropriate amount.

46. Mrs F says the SALT provision is still not in place. Our policy is that our investigation period ends on the date when the complainant came to us. So I have not recommended a remedy for any loss of provision after October 2025. In addition, Mrs F then had a right of appeal to Tribunal and as set out in paragraph 6, we cannot investigate any dispute about the provision in Section F.

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Action

47. Within a month of my final decision, the Council has agreed to apologise to Mrs F and pay her:
• £500 to remedy the uncertainty about what provision might have been made for Mr J from February to July 2025.
• £1,800 to remedy the loss of SEND and educational provision and appeal rights from July to October 2025.
48. 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 I have recommended.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman