Summary: Mrs F complained about the Council’s handling of her son’s education, health and care plan. There was fault which caused Mrs F to lose her appeal rights and uncertainty and distress in relation to her son’s SEN provision. The Council has agreed to issues the final plan and make a payment to Mrs F to remedy this injustice.

The complaint

1. Mrs F complained about the Council’s handling of her son’s education, health and care plan. In particular that it failed to:
• Give her at least two weeks’ notice of the annual review of 25 March 2024.
• Send her a notification of the decision to amend the EHC plan including the amendments being proposed, following the review.
• Give her an opportunity to comment on an amended plan before the final plan was issued.
• Inform her of the right of appeal as no cover letter was included with the final plan of 11 April 2024.
• Adequately amend the plan, which contains outdated information and does not name the post 16 placement.
• Meet the statutory deadlines.
• Deal with her complaint properly.
2. As a result, she and her son have been caused unnecessary uncertainty and distress at a key stage in his education and the college is unable to meet his needs.

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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. 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.
5. 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)
6. 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)
7. 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

8. I spoke to Mrs F about her complaint and considered the information she sent, the Council’s response to my enquiries and the Special Educational Needs and Disability Code of Practice: 0 to 25 years (“The Code”).
9. 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

10. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child'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.
11. The council must complete the review within 12 months of the first EHC plan and within 12 months of any later reviews. Councils can ask further education colleges or other post-16 institutions to convene and hold the review meeting on their behalf. The child’s parents, or young person, must be invited and given at least two weeks’ notice of the date of the meeting.
12. Within four weeks of an annual review meeting, the council must issue its decision to amend, maintain or discontinue the EHC plan.
13. Where the council proposes to amend an EHC plan, it must send the child’s parent a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments. 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 after the review meeting).
14. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.
15. Parents have a right of appeal to the 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. The Tribunal requires parents to submit the Council’s covering decision letter, which sets out their appeal rights.
16. 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.

The Council’s complaint procedure

17. The Council’s SEND complaint procedure comprises two stages. The policy says complainants can ask for the complaint to be escalated to stage 2 if they “believe the matter remains unresolved”. The complaints manager can offer alternative resolution at this point.
18. In response to my enquiries, the Council advised that a review of remedy is also offered as alternative stage 2 resolution for complaints which have already been upheld at stage 1 but appear not to have been considered for appropriate remedy or learning; or when the complainant has requested compensation. Remedy is decided by a senior manager. A formal response outlining the senior manager’s consideration, learning being taken forward and any offer of remedy is then provided to the complainant within 15 working days.

What happened

19. Mrs F’s son, J, has special educational needs and an education, health and care plan (EHC plan). He was on roll at a mainstream school but had been out of school since February 2022. He was to sit his GCSEs in 2024.
20. On 14 March 2024, the school emailed Mrs F about an annual review that was to be held on 25 March. Mrs F did not receive the email as it went into her spam folder. She therefore did not attend the annual review. As soon as she became aware of it, she contacted the Council on 27 March. At this point, the Council should have sought her input into the outcome of the review and issued a draft EHC plan for Mrs F to comment on.
21. The Council issued a final EHC plan on 11 April which named J’s existing school. I have seen no evidence this was sent to Mrs F.
22. Mrs F contacted the Council on 20 May. The Council sent her the final EHC plan but there is no evidence that it attached its cover decision letter. This meant that Mrs F was unable to appeal to the Tribunal.
23. Mrs F complained to the Council on 8 June that the Council had failed to:
• Send her the EHC plan cover letter.
• Properly notify her of the annual review.
• Notify her of amendments to the EHC plan four weeks after the review meeting.
• Meet its legal duty to review and amend J’s EHC plan by 31 March in the year of transfer to post-16.
24. Mrs F said the new EHC plan was outdated and her preference was for J to attend College A. He would be leaving his existing school.
25. The Council said it could register a complaint about poor communication. It noted that she had appeal rights and that her preference was for College A to be named in the EHC plan.
26. The Council then issued an amended draft EHC plan on 3 July 2024, which Mrs F commented on. A final EHC plan has not yet been issued.
27. The Council responded to Mrs F’s complaint on 23 July. It apologised for delays. It was consulting with College A.
28. Mrs F asked for her complaint to be escalated to Stage 2 as there was still no final EHC plan or transition support for J to move to post-16. She asked for a timeline for the completion of the plan and for support for J as his mental health had further declined as there had been no transition support. Mrs F also suggested the Council’s SEND team improve its communications with and involvement of parents and ensure SEND staff were trained on the Council’s statutory duties.
29. On 31 July the Council said it would not escalate the complaint to Stage 2 as it could not add anything further in relation to poor communication, but it would review whether a remedy was needed. The Council said the outcomes Mrs F sought were outside the remit of the complaint policy. Once J’s final amended EHC plan was issued, Mrs F could request a review of remedy for this.
30. The Council then offered Mrs F £300 to acknowledge the lack of effective communication during the annual review process. Mrs F remained dissatisfied and came to the Ombudsman. She said there was still no final EHC plan, the provision in the previous plan was outdated and College A was therefore unable to meet J’s needs. She had asked the Council to arrange an emergency review but had received no response. The review was held in February 2025.

My findings

31. It was not fault by the Council that the school’s email to Mrs F went to her spam folder. But once the Council became aware on 27 March 2024 that Mrs F had not been involved in the annual review, it should have sought her views so that they could be considered. I have seen no evidence it did, which is fault.
32. The Council then failed to:
• Issue a notification of the decision to amend the EHC plan including the amendments being proposed within four weeks of the review meeting.
• Give Mrs F an opportunity to comment on an amended EHC plan before the final plan was issued.
• Issue the final amended plan before 31 March 2024.
• Inform Mrs F of the right of appeal to Tribunal as no cover letter was included with the final EHC plan of 11 April 2024 (sent to her on 20 May).
• Issue a final EHC plan within 12 weeks of the review meeting, or within four weeks of the 3 July 2024 draft.
33. These faults have caused Mrs F to lose her opportunity to input into the April 2024 plan and to appeal to the Tribunal.
34. They have also caused distress to her and J as his education was not agreed before he started at College A. This meant there was no transition planning with College A and there is uncertainty about what SEND provision could have been made in September 2024. Mrs F says this contributed to J’s increased anxiety. This is an injustice.
35. I also find there was faut in the Council’s response to Mrs F’s complaint. The Stage 1 response did not deal with the fact that Mrs F had no EHC plan cover letter, so was unable to appeal. The remedy review did not acknowledge that the delay in issuing a final EHC plan meant there was no transition for J into post-16 education. A more detailed complaint investigation could have identified why Mrs F’s views were not sought in the annual review and why a cover letter had not been issued. This fault in complaint handling has caused Mrs F time and trouble, which is an injustice.
36. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance on remedies says that for distress, time and trouble, and uncertainty caused by fault, moderate, symbolic payments up to £500 may be appropriate.
37. Following other Ombudsman cases, the Council has recently agreed to brief staff handling SEND complaints to investigate the causes of individual delay in issuing EHC plans. It has also agreed to provide the Ombudsman with details of its progress on the review of its practice around annual review timescales and monitoring of EHC plan provision. I am also aware that there is a Government improvement notice that requires the Council to take steps to improve its SEND services. I therefore do not recommend any other service improvements.

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Action

38. Within a month of my final decision, the Council has agreed to:
1. Issue J’s final EHC plan.
2. Apologise to Mrs F and pay her:
1. £300 to remedy her lost opportunity to appeal the EHC plan and the time and trouble she has been put to.
2. £200 to remedy the distress and uncertainty caused to her by the failure to issue a final EHC plan within the statutory deadlines.
3. £500 to be used for J’s educational benefit, to remedy the distress and uncertainty caused to him by the failure to issue a final EHC plan within the statutory deadlines.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman