The Ombudsman's final decision
Summary: The Council was at fault for how it handled the annual review process for Ms X’s child, C’s, Education, Health and Care (EHC) Plan. The Council was also at fault for the way it made changes to C’s Education Otherwise Than At School (EOTAS) program and how it processed Ms X’s application for a personal budget. This caused distress to Ms X and delayed her right of appeal. I have recommended the Council apologises and makes a symbolic financial payment.
The complaint
Ms X complained the Council changed the way it provided her child (C’s) Education Otherwise Than At School (EOTAS) program and how the Council processed her application for a personal budget. Ms X said this caused distress to the whole family. She would like the Council to acknowledge the distress that this has caused and reflect on the processes to ensure this doesn’t happen to others.
The Ombudsman’s role and powers
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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)
What I have and have not investigated I have started my investigation in January 2025 when the Council held the annual review.
I have stopped my investigation in August 2025. This was the date the Council issued a final EHC Plan which Ms X appealed to the special educational needs and disabilities (SEND) Tribunal. This was the correct way to challenge the contents of the Plan which the law does not allow me to investigate, as set out in paragraphs 20 and 21 below.
How I considered this complaint
I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
Relevant legislation The Education, Health and Care (EHC) Plan and the Annual Review 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.
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) If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
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.
Education Otherwise Than At School (EOTAS) EOTAS is when a local authority arranges a child’s special educational provision somewhere other than a school or college, for example, at home or through a mix of providers. EOTAS is included as part of a child’s EHC plan.
Personal Budgets 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.
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.
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.
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.
The council’s (and health commissioning body’s where relevant) duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.
Appeal rights 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.
The courts have established that if someone has appealed 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 period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started.
What happened I have summarised below the key events; this is not intended to be a detailed account.
C had an EHC Plan dated January 2024. C attended a mainstream school.
C stopped attending mainstream school in the summer of 2024.
The Council provided Education Otherwise Than At School (EOTAS) for C from September 2024. C’s timetable included over 15 hours of tuition and support from three different providers.
In January 2025, the Council held an annual review meeting. The report from the annual review meeting said C had 100% attendance record with their EOTAS providers. The SEND Officer said the EOTAS package was very successful for C. Ms X said C was ‘a lot happier being on an EOTAS package and loves all the provisions.’ Ms X said C missed art and asked if the Council could include this. She also asked for an increase in maths and science sessions.
In March 2025, the Council updated C’s EOTAS timetable to include an extra two hours tuition, as per Ms X’s request.
In early April 2025, the Council wrote to Ms X and said it was making changes to how it delivered EOTAS and referred to an engagement event in October 2024 where this information was shared. Ms X told me this was the first she heard about the changes to EOTAS and she did not receive notification about the event in October. The April 2025 letter said it would discuss the changes with the family, it said if some of C’s provisions could not be met as part of the EOTAS program, the family could ask for a personal budget.
At the end of June 2025, the Council met with Ms X and told her C’s provisions were to change. It advised Ms X she could apply for a personal budget to pay for alternative providers. The Council told Ms X she must submit the application within the week.
Ms X sent her application for a personal budget within the timeframe.
A week or so later, the Council wrote to Ms X with the outcome of request for personal budget. It had approved one provider and refused the other. It said this was because the provider was not approved through its procurement process. The letter said there was no legal right of appeal.
At the end of August, the Council issued the final EHC Plan.
Ms X appealed to the SEND Tribunal. She said the EHC Plan did not accurately reflect the provision C was receiving and did not include therapeutic provision which C had previously received.
The complaint
Ms X complained to the Council in July 2025 about how it changed C’s provision and how it managed her personal budget application.
The Council responded in the middle of August 2025. The Council did not uphold Ms X’s complaint about the changes to EOTAS provision. It explained it had taken into consideration C’s needs, opinions, the progress they had made and the support needed in preparation for college. It said it was satisfied the timetable accommodated their needs. The Council upheld Ms X’s complaint about how it handled her personal budget application and said it would adjust its procedures and timelines. The Council apologised for distress caused to Ms X and C.
Ms X complained to the Ombudsman in September 2025.
Analysis The Council held an annual review meeting in the middle of January 2025. The Council should have made the decision to maintain, amend or cease the plan within four weeks of the meeting, and if it decided to amend the plan, it should have provided a copy of the amended version with its decision. This should have been the middle of February. The Council should then have provided a copy of the final amended plan within a further eight weeks. This should have been the middle of April 2025. The Council issued the final version of the Plan in late August 2025. This was a delay of just over four months. This was fault. This caused the family uncertainty and distress as they did not know what the new plan was going to contain. Failure to update the final Plan also delayed Ms X a right of appeal if she was unhappy with the provision offered, which she exercised. This was an injustice.
The Council told Ms X it was changing how it provided the EOTAS program in April 2025 and finalised this in August 2025 when it issued the Plan. The Council should have given Ms X and C more warning about the potential changes to the EOTAS system. It should have invited them to the engagement event in October 2024 and discussed the changes with them at the annual review meeting in January 2025. Failure to do so was fault. The changes were unexpected and caused added distress and uncertainty to C and Ms X.
During the conversations about the changes to the EOTAS program, the Council advised Ms X she could apply for a personal budget to pay for alternative providers. The Council told Ms X to submit her application within a week. Whilst I have not seen any reference to the Council’s timescales for processing applications, I do not consider a week to be a reasonable amount of time to complete the form. The application should also have been discussed at the annual review which the Council failed to do; this was also fault. The Council’s decision letter should have advised Ms X what to do if she was not satisfied and provided her with a right for a review as explained in paragraph 19 above. The Council said there was no right of appeal against the decision. This was also fault. This caused Ms X added distress.
Ms X was happy with the EOTAS provision until the end of the academic year in 2025. After this time Ms X had a right of appeal following the Council finalising the EHC Plan in August 2025. Ms X appealed to the Tribunal as she was not happy with the contents of the Plan. As explained in paragraph 7 above I cannot investigate the contents of the Plan and the provision offered. I have not found that C was without education and support during the timeframe of my investigation.
The Ombudsman has previously recommended service improvements to the Council about EOTAS and timeliness of the annual review process. I do not need to recommend any further service improvements.
Action
Within four weeks of the final decision, the Council should apologise and pay Ms X £500 for the uncertainty and distress caused by the delay in the annual review process, the personal budget application and the changes in the EOTAS system. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
Within three months of my final decision the Council should provide evidence it has made the changes to personal budget procedures and timelines, as described in its final complaint response.
The Council should provide us with evidence it has complied with the above actions.
Decision I find fault causing injustice. The Council has agreed actions to remedy injustice.
Investigator's decision on behalf of the Ombudsman