The Ombudsman's final decision
Summary: Miss X complained the Council delayed arranging and funding provision in her son B's Education, Health and Care (EHC) Plan. She also complained about delays in the EHC annual review process. We found the Council at fault for the delays and loss of provision. This caused B significant distress and Miss X avoidable stress, frustration and financial difficulty. The Council has agreed to apologise and make a symbolic payment to remedy the injustice.
The complaint
Miss X complained Somerset Council (the Council) delayed arranging and funding provision in her son B's Education, Health and Care (EHC) Plan. She said the Council gave misleading information about funding and provision, and B did not receive the agreed education otherwise than at school (EOTAS) package. She also complained about delays in the EHC annual review process. Miss X said the delays and loss of provision caused B significant distress and caused her avoidable stress, frustration and financial difficulty.
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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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)
How I considered this complaint
I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I found
EHC Plan 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.
Maintaining the EHC Plan 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) 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 quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
The local authority must take steps to ensure that the special educational provision specified in the EHC Plan is in place from the date the final Plan is issued. (SEND Code paragraph 9.194) Reviewing EHC Plans 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.
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 (SEND) Regulations 2014 and SEND Code paragraph 9.176) 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) SEND Regulations 2014 and SEND 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.
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.
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.
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), because a school or college setting is not right for their needs.
What happened Miss X said she requested EOTAS provision in September 2024 after B was unable to begin a college course because of his health needs. During the following months, she had ongoing contact with the Council about arrangements for the provision.
The Council issued B’s first final EHC Plan in late October 2024. The Plan included EOTAS provision for the 2024/25 academic year and identified a college placement to start in September 2025.
In February 2025, the Council considered and approved an EOTAS package. This included music tuition, a wellbeing activity and transport funding. The Council decided the provision would be funded through a direct payment arrangement administered by a third-party organisation.
The Council sent direct payment paperwork to Miss X in mid-February 2025 and Miss X completed and returned the forms. During March 2025, the Council told Miss X the necessary arrangements had been completed and funding should be available within a few weeks. In light of this reassurance, Miss X said that she arranged some provision for B.
Following this, Miss X repeatedly contacted the Council for updates. In May 2025, the organisation administering the direct payments advised it had no record of B or the funding arrangements. The Council also completed an annual review of B’s EHC Plan in May 2025.
The direct payment funding became available in June 2025. Around the same time, Miss X complained to the Council. She said there had been significant delays in arranging the agreed EOTAS package, she had been given misleading information about the funding process and the EHC Plan annual review process had also been delayed.
The Council responded at stage one of its complaints procedure in late July 2025. It partially upheld Miss X's complaint about delays in the EOTAS funding arrangements but did not uphold all of her concerns. Miss X remained dissatisfied and asked the Council to review the complaint.
In August 2025, the Council issued an amendment notice following the EHC Plan review.
The Council issued its stage two response in September 2025. It upheld all elements of Miss X's complaint. The Council accepted there had been delays in making the direct payment funding available and accepted some of the information previously given to Miss X about the funding arrangements had been incorrect.
The Council also accepted there had been delays following the annual review and in issuing the amendment notice. It apologised and told Miss X it would prioritise completion of B’s EHC Plan. The final EHC Plan was issued in October 2025.
As part of its complaint response, the Council agreed outstanding invoices for music lessons should be paid because of the delays in implementing the funding arrangements. However, Miss X remained dissatisfied and complained to the Ombudsman in November 2025.
Analysis Miss X complained the Council delayed arranging and funding the EOTAS provision in B's EHC Plan that was issued in October 2024. The Council had a duty to secure the special educational provision specified from the date the final Plan was issued. However, the Council only approved funding for B’s EOTAS package via direct payments in February 2025, a delay of around four months. This delay was fault which caused B to miss out on educational provision and caused avoidable uncertainty and frustration for him and Miss X.
The funding for the EOTAS package, in the form of a direct payment, was not provided to Miss X until June 2025. This was a further delay of nearly five months, which was fault that led to B continuing to miss out on educational provision. It also caused further uncertainty and frustration, as well as financial loss for Miss X who had begun to fund some of B's provision herself in the meantime. The Council said this further delay was partly due to an error where the third-party organisation managing the direct payment said it had not received any information about B’s direct payment.
Miss X also complained about delays in the annual review process. The review meeting took place in May 2025. The Council therefore should have issued its decision to amend B’s EHC Plan in June 2025, within four weeks of the review meeting. The final plan should have been issued in August 2025, after a further eight weeks. However, the Council issued an amendment notice in August 2025 and the final Plan in October 2025. This represented a delay of around nine weeks which was fault and caused more avoidable uncertainty and frustration for him and Miss X, and delayed their right of appeal.
The Council accepted at stage two of its complaints procedure that there had been delays in implementing the agreed EOTAS package and that it provided Miss X with incorrect information about the status of the funding arrangements. It also acknowledged there were delays with the EHC Plan annual review process. The Council has apologised to Miss X, backdated the direct payments to February 2025 when they were first agreed, and agreed to fund some additional music lessons for B. These actions were appropriate, but I do not consider them to be sufficient to remedy the injustice caused.
B received none of the EOTAS provision listed in his EHC Plan between October 2024 and the funding approval in February 2025. To recognise the impact of this lost provision and the avoidable uncertainty and frustration caused, I recommend a payment of £1,500.
Further delays meant the funding was not available until June 2025. Although the Council backdated the funding to February 2025 and agreed to pay outstanding music lesson invoices, this did not remedy the uncertainty and frustration that the significant delay caused Miss X and B. I therefore recommend a further payment of £500 to recognise this injustice.
The Council had already recognised these problems through its complaint process and had taken steps to improve its SEND service. The Council implemented an action plan between 2023 and 2026 that included making changes to reduce delays in EHC Plan processes and reviewing its direct payments arrangements. In the circumstances, I do not make any recommendation for service improvements at this time.
Action
In recognition of the injustice caused to Miss X and B, I recommend, within one month of the final decision, the Council will: Apologise to Miss X and B, in accordance with our guidance on making an effective apology.
Pay £2,000 to Miss X on behalf of B, to acknowledge the loss of educational provision and the avoidable uncertainty and frustration caused by the delays.
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