Summary: Mrs B complained the Council delayed in issuing a final Education, Health and Care Plan following an annual review and failed to investigate part of her complaint. We find the Council at fault for a delay in issuing the final amended Education, Health and Care Plan following an annual review and for failing to investigate part of Mrs B’s complaint. These faults caused Mrs B and her family uncertainty, distress and frustration. The Council has agreed to apologise to Mrs B, make a symbolic payment and complete service improvements to remedy the injustice caused by the faults identified.

The complaint

1. Mrs B complained:
• Her son, X, has been out of education since September 2023.
• The Council has failed to issue a final Education, Health and Care Plan (EHCP) following an annual review which took place in July 2024.
• The Council has failed to communicate effectively throughout the process.
• The Council failed to investigate issues relating to discrimination as part of its complaints process.
• The Council submitted school consultations without her consent.
2. Mrs B says the situation has impacted her husband’s mental health and her son is not receiving the support he needs to attend school. Mrs B also says she has had to spend significant time and energy chasing the Council for responses. Mrs B would like the Council to apologise and agree a personal budget. Mrs B would also like the Council to compensate her for her son’s missed education and the stress this has caused.

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The Ombudsman’s role and powers

3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. 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

7. I have not investigated the part of Mrs B’s complaint which relates to the school consultations. This is because the Information Commissioner’s Office is better placed to deal with data protection complaints.
8. I have not investigated the Council’s actions relating to X being unable to attend school. This is because this relates to whether the placement named in section I of the EHCP is suitable. Mrs B has appealed this decision to the SEND Tribunal.
9. I have investigated the Council’s actions in completing the annual review in July 2024, its communication with Mrs B and its handling of Mrs B’s complaint.

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How I considered this complaint

10. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
11. Mrs B and the 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

Legal and administrative background

EHC Plans and annual reviews

12. 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. 
13. 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. The process is only complete when the council issues its decision to amend, maintain or discontinue 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) 
14. 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.
15. 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.

Personal Budgets

16. 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.
17. 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.
18. 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.
19. 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.

What happened

EHC Plan and annual review

20. An annual review meeting was held in early 2024. In accordance with statutory timeframes the Council should have issued its decision no later than the first week of June 2024, and a final amended Plan no later than the end of September 2024.
21. The Council issued a decision letter in January 2025 which told Mrs B it intended to amend X’s EHC Plan. The Council issued a final amended Plan in February 2025. This is a delay of approximately 5 months.
22. Mrs B submitted a formal personal budget request at the end of July 2024.
23. At the beginning of August 2024, the Council considered Mrs B’s personal budget request at an Outcome and Resources Group (ORG) panel meeting. The panel did not agree to a personal budget at this time as it felt X’s needs and provision could be provided by the placement named in section I of the EHC Plan. The Council informed Mrs B of the panel decision within 3 working days.
24. The ORG panel reconsidered its decision at the beginning of October 2024. The panel considered the evidence and upheld its previous decision. The panel explained it did not agree a personal budget was needed because a supportive package to re-integrate X into the named setting had not yet been tried but this could be delivered flexibly.

Complaint handling

25. Mrs B submitted a complaint in early 2024. The complaint raised several issues regarding the management of X’s EHC Plan and school consultations. The complaint also raised concerns about the way in which Council staff spoke to Mr B. Mrs B told the Council she believed Mr B was being discriminated against because of his disability.
26. The Council issued a stage one complaint response which failed to acknowledge Mrs B complaint about the Council’s communication with Mr B. Mrs B escalated her complaint and asked the Council to provide a response to this point as part of a stage two complaint response.
27. The Council issued a stage two complaint response but incorrectly told Mrs B she had not raised the Council’s communication with Mr B as part of her initial complaint. The Council said it could not investigate this part of the complaint but invited Mr and Mrs B to submit a new complaint if they would like the matter to be investigated.
28. In response to our enquiries the Council acknowledged Mrs B did raise this issue in her initial complaint and the Council failed to investigate it. To remedy the injustice caused to Mr and Mrs B the Council has offered to:
• Apologise to Mr and Mrs B for the injustice caused by the failure to investigate this part of the complaint.
• Complete an investigation and include a review of the time and trouble caused to Mr and Mrs B for not investigating this matter correctly.
• Complete a review of the handling of Mrs B’s complaint to ensure all opportunities to learn are identified.

Communication

29. Between May 2024 and January 2025, the Council remained in regular contact with Mrs B regarding the annual review and EHC Plan.
30. The Council responded to most of Mrs B’s emails and requests for updates within 5 working days. There were a few occasions where it took longer for the Council to respond, however the Council always responded within 10 working days.
31. There were several occasions when the Council attempted to call Mrs B, but Mrs B was unavailable due to being at work. The Council made arrangements to contact Mrs B at more suitable times.

My findings

32. There was an approximately 5 month delay in the Council issuing the final amended EHC Plan following the annual review in June 2024. This is fault which caused X and Mrs B uncertainty, frustration and distress.
33. There is no fault in the Council’s consideration of Mrs B’s request for a personal budget. The Council sent the request to its appropriate panel and a considered decision was made and communicated to Mrs B. The Council also reconsidered its decision and provided further reasoning for its refusal of the personal budget request.
34. The Council failed to consider Mrs B’s complaint about its communication with Mr B. This is fault which caused Mr and Mrs B frustration, distress and uncertainty. The Council’s proposed actions to remedy the injustice caused to Mr and Mrs B are suitable.
35. I have not seen any evidence of fault in the Council’s communication with Mrs B.

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Action

36. Within one month of the final decision the Council will:
• Apologise to X, Mrs B and Mr B 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 its apology.
• Make a symbolic payment of £500 to X and Mrs B in recognition of the injustice caused by the delay in issuing a final amended EHC Plan.
• Complete an investigation into the Council’s communication with Mr B and include a review of the time and trouble caused to Mr and Mrs B for not investigating this matter correctly. Mrs B may come back to us if she remains unhappy after the Council’s investigation is complete.
37. Within three months of the final decision the Council will:
• Complete a review of the handling of Mrs B’s complaint to ensure all opportunities to learn are identified.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman