Summary: Mrs X complained the Council failed to complete annual reviews and amend her child Y’s Education, Health and Care (EHC) Plan. She also complained it failed to deliver hydrotherapy provision. The Council was at fault. It failed to amend Y’s EHC Plan after an annual review in early 2024 which mean Y has an outdated Plan. The Council agreed to make a payment to acknowledge the distress caused to Mrs X and the delayed appeal rights and amend Y’s Plan without further delay. The hydrotherapy provision is provided by the Local Integrated Care Board and therefore falls outside of our jurisdiction.

The complaint

1. Mrs X complained the Council has failed to review and update her child, Y’s, Education, Health and Care (EHC) Plan since 2022 despite holding annual review meetings. She also complained the Council failed to ensure Y received hydrotherapy provision for the last 12 months.
2. Mrs X says Y’s needs have gone unmet due to the outdated EHC Plan and loss of provision which has caused distress and uncertainty.

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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. 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)
5. 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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What I have and have not investigated

6. I have not investigated Mrs X’s complaint about her child’s lack of hydrotherapy. This is because the hydrotherapy provision outlined in Y’s EHC Plan is the responsibility of the local integrated care board (ICB). Therefore, any complaints about this should be directed to the ICB and then to the Parliamentary and Health Service Ombudsman (PHSO).
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). Any complaint about a failure to amend Y’s EHC Plan following annual reviews in 2022 and 2023 is late as it was reasonable for Mrs X to have complained about this earlier.
8. I have therefore investigated the Council’s failure to amended Y’s EHC Plan following an annual review in February 2024.

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How I considered this complaint

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

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What I found

EHC Plans

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the young person’s needs and what arrangements should be made to meet them.

Annual reviews

12. 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.
13. Within four weeks of a review meeting, the council must notify the young person’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176).
14. Where the council proposes to amend an EHC Plan, the Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within 4 weeks of the annual review meeting. The council must then issue any final amended plan within 8 weeks of the amendment notice. This means a final plan must be issued within 12 weeks of the review meeting.

What happened

15. Mrs X has a child, Y, who in early 2024 was of secondary school age. Y has a diagnosis of autism and disabilities which affect their social and physical development. Y has an EHC Plan the last of which was issued in October 2022. Y attended a special school, School 1 which was named in the EHC Plan.
16. In February 2024 School 1 held an annual review of Y’s EHC Plan. Records of the annual review noted Y’s EHC Plan was outdated and required amendment and a change of placement. There is no evidence the Council sent Mrs X a decision letter and it did not issue an amended plan. Y remained attending School 1 with an out of date EHC Plan which was written during 2022.
17. Mrs X complained to the Council during 2024, mainly about the lack of hydrotherapy provision. She also asked the Council to carry out another annual review as she believed Y required a change of placement. Mrs X raised concerns that Y’s plan had not been amended following the February annual review.
18. The Council responded to Mrs X in November 2024 and apologised Y’s EHC Plan was not amended which it blamed on some miscommunication and lack of oversight.
19. In February 2025 School 1 held an annual review. Mrs X said the Council agreed to amend Y’s EHC Plan and issued a draft plan in early March 2025. However, Y’s case officer agreed that the content of the draft plan contained out of date information and therefore agreed a new draft should be completed. Mrs X believes the Council intends to name School 1 again and wants the Council to issue the final plan without delay so she can appeal to the SEND tribunal. To meet this deadline the Council should issue the amended EHC Plan on or before 20 May 2025.
20. Mrs X remained unhappy and complained to us.

My findings

21. The Council held Y’s annual review in February 2024. It should have issued the amended decision letter within four weeks of the meeting and then issued the amended plan eight weeks after that, so by mid May 2024. There is no evidence the Council issued a decision letter and to date it has not issued Y’s amended EHC Plan. This means Y has remained at School 1 with an EHC Plan that was written in 2022. All of this is fault and has caused Mrs X distress and frustration. It leaves uncertainty around what provision Y could have had with an amended plan and it has also delayed Mrs X’s right of appeal to the SEND tribunal.
22. Y’s most recent annual review took place in February 2025 and evidence shows the Council has already began working to amend the plan. I have made a recommendation below to ensure the Council meets the statutory timescales following this review. If Mrs X is unhappy with the EHC Plan and the provision within it she can appeal to the SEND tribunal.
23. We have issued recent decisions with service improvements on other complaints around the Council’s oversight and adherence to annual review timescales. Therefore, I have not made further service improvement recommendations, and we will continue to monitor the Council through our casework.

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Action

24. Within one month of the final decision the Council should apologise to Mrs X and pay her £500 to acknowledge the distress and uncertainty caused by the failure to issue Y’s amended EHC Plan following the annual review in February 2024. 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.
25. Within two months of the final decision (or by 20 May 2025) the Council agreed to issue Y’s amended final EHC Plan following the February 2025 annual review.
26. The Council should provide us with evidence it has complied with the above actions.

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Decision

27. I found fault causing injustice. The Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman