Summary: Mrs C complained the Council failed to comply with the statutory timeframes for completing an annual review and failed to complete the actions recommended in its stage two complaint response. We have found the Council at fault for a delay in issuing a final Education, Health and Care Plan following an annual review. This caused Mrs C distress, frustration and uncertainty and delayed her right to appeal. The Council has agreed to apologise and make a symbolic payment to Mrs C to remedy the injustice caused.

The complaint

1. Mrs C complained the Council failed to comply with the statutory timeframe for issuing a final Education, Health and Care Plan following an annual review and it has not completed the actions recommended in the stage two complaint response. Mrs C said her daughter, X, had no access to suitable, full-time education for almost a whole year. Mrs C would like the Council to provide a higher financial remedy to cover the extended period X did not receive alternative provision, and she would like the Council to accept the parental preference for ‘education other than at school’ which was denied in March 2024.

Back to top

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 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)
3. 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(i), as amended)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

5. I considered evidence provided by Mrs C and the Council as well as relevant law, policy and guidance.
6. Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Legal and administrative background

Education health and Care plan

7. 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.

Annual review process 

8. 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 take place. When the Council decides to amend the Plan, the process is only complete when the council issues the amended final Plan.
9. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
10. 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.

What happened

Annual review

11. X stopped attending school in January 2024. An emergency annual review was held at the beginning of February 2024. In accordance with statutory timeframes the Council should have issued a final amended EHC Plan no later than 2 May 2024.
12. The Council issued X’s amended EHC Plan at the end of February 2025. This is a delay of approximately 9 months.

Access to education

13. Between January 2024 and May 2024 X was unable to access education. During this time the Council did not consider whether it was meeting its section 42 duty.
14. In May 2024 a request for alternative provision was made to the Council’s education governance board panel. The panel considered the request and authorised alternative provision until the end of the academic year.
15. X did not start the alternative provision until December 2024.
16. In response to Mrs C’s complaint, the Council acknowledged X missed an excessive period of education provision between January 2024 and May 2024. The Council offered a symbolic financial remedy of £2,400 in recognition of the impact of the missed education. Mrs C accepted this payment.

Complaint recommendations

17. The Council issued a stage two complaint response at the beginning of June 2024. The Council accepted several faults had occurred and the response set out the following recommendations:
• Within 10 working days the service will provide some form of timescale as to when the final amended EHC Plan will be issued.
• Within one month the service would consider a symbolic financial remedy in recognition of the time and trouble Mrs C had spent pursuing the complaint.
• Within one month the service would consider a symbolic financial remedy to be used for educational purposes in recognition of missed medical alternative provision between January 2024 and May 2024.
• Within one month the service would consider sourcing catch up provision for X.
18. The Council made the recommended symbolic payments in July 2024. The Council failed to provide a timescale for the final Plan and failed to source catch up provision for X within the one month timescale.

My findings

19. The Council failed to process X’s February 2024 annual review. This caused a 9 month delay in issuing a final amended EHC Plan. This is fault which caused X and Mrs C distress, frustration and uncertainty. It also significantly delayed Mrs C’s appeal rights.
20. X did not receive access to education between January 2024 and December 2024. This is fault which caused X and Mrs C distress, frustration and uncertainty. The council has apologised and paid a suitable symbolic financial remedy in recognition of the missed provision between January and May 2024. The Council has not provided any remedy for the missed provision between the end of May 2024 and December 2024.
21. The Council completed the actions recommended in its stage two complaint response. There was a delay in some of the actions being completed. The delay caused X and Mrs C the injustice outlined in other parts of this investigation. Therefore, I have not recommended a separate remedy.

Back to top

Action

22. Within one month of the final decision the Council will:
• Apologise to Mrs C for the faults identified. 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.
• Make a symbolic payment of £900 in recognition of the distress, uncertainty, frustration and delay in appeal rights caused by the Council’s delay in issuing an amended final EHC Plan following the annual review. This is calculated at £100 per month of delay.
• Make a symbolic payment of £2,400 in recognition of the injustice caused by the lack of alternative provision in place between the end of May 2024 and December 2024. This is calculated at approximately £1,200 per term in line with our guidance on remedies.
23. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

24. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman