Summary: There was fault by the Council. There is no evidence the first Education, Health and Care Plan was sent to the family and no annual review was carried out in 2023. There was also delay sending a final Plan after the 2024 annual review. This caused uncertainty, as Mrs X will never know if Y’s inclusion in the classroom could have been improved. The Council had already apologised and put in place procedures to improve the service before the complaint was considered by the Ombudsman. A symbolic payment remedies the distress caused to Mrs X and her family from the uncertainty.

The complaint

1. The complainant, Mrs X, has a child, Y. Mrs X complains the Council did not carry out an annual review of Y’s Education, Health and Care (EHC) Plan in 2023. Mrs X also says the Council did not send a copy of an EHC Plan to her until 2024.
2. Mrs X says the Council did not respond to complaints that provision in Section F of the EHC Plan was not being carried out by the school. Mrs X has said she feels that her child’s education in school may have been better if the EHC Plan had been reviewed sooner. Mrs X says it has had a severe effect on her mental health and her child’s education.

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What I have investigated

3. 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)
4. I have exercised discretion to investigate further back than 12 months, to 2023. This is because Mrs X first came to us in July 2024 and the Council’s complaints procedure took from October 2024 until April 2025. So, I consider it reasonable to investigate the concerns of 2023.

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The Ombudsman’s role and powers

5. 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)
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(1), as amended)
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
8. 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

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

Law and guidance

11. 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. 
12. 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)  
13. 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. 

14. 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) 
15. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must tell the child’s parents or the young person of their right to appeal the decision to the tribunal.
16. 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.

Key facts

17. Y has an EHC Plan, which was issued in October 2022. Miss X says she did not receive a copy. The Council has a copy of an undated letter to Miss X but does not have an email showing it was sent to her.
18. An Annual Review of the EHC Plan was due in October 2023. This was not carried out. This was fault. The Council has said ‘we have implemented a more rigorous reporting system using our database in order to track annual review dates and to chase all outstanding reviews. This was not in place in 2023’.
19. An Annual review of the EHC Plan was held on 19 April 2024. Y’s attendance over the last year was 95%.
20. There is no evidence of a letter being sent to Mrs X within 4 weeks of the annual review meeting to inform her if the EHC Plan was being ceased, amended or was to stay the same. The final EHC Plan after the annual review should have been sent to Mrs X by 12 July 2024, however, the Council issued the final plan on 20 December 2024. The Council said the 5 month delay was because of staff shortages and recruitment issues.
21. Mrs X put in an official complaint to the Council in October 2024. She complained the school was not following the EHC Plan and that the EHC Plan had not been updated. Mrs X specifically mentioned that her child- was spending a lot of time out of class and that she felt that this could have been addressed earlier if the EHC Plan had been reviewed in 2023.
22. The Council responded to the stage 1 complaint on 13 December 2024. The Council apologised for the delay in the EHC Plan after the annual review and set out a comprehensive list of steps officers had agreed with school staff and Mrs X to support Y.
23. In the stage 2 complaint on 4 April 2025 the Council said, in response to Mrs X’s concerns about the EHC Plan not being implemented by the school, that ‘as this related to the day to day implementation of the EHC Plan within the school setting I recommend you connect with the school direct to discuss these matters’.
24. In response to my enquiries, the Council said ‘the Council identified that the issues raised were better for the school to investigate. We have since held training sessions with schools regarding annual review processes and the requirements for all paperwork. We have also provided complaints training to our officers to indicate that Section F provision delivery is within the remit of a complaint to the Council. In Mrs X’s letter it did state she had held numerous meetings with the school regarding a variety of incidents/concerns. We should have liaised with the school to discuss these meetings further, and for that we do apologise’.
25. It was fault for the Council to tell Mrs X to talk to the school when the Council is legally responsible for ensuring that the provision in Section F is delivered. The Council has apologised and said it will provide training to the officers involved to remedy this.
26. I now have to decide the injustice caused by the Council’s fault. The 2024 annual review showed Y’s school attendance at 95% and that he was working at age related standards in maths and reading, but not in writing. Mrs X specifically complains about an incident in school. She feels that if annual reviews and delays had not occurred, more support could have been in place earlier and the incident may not have happened and Y would have spent more time included in the classroom.
27. The Council has apologised and put systems in place to track annual review dates and provide training to complaints officers. So, I do not intend to make service improvement recommendations.
28. Our guidance on remedies says ‘if even on the balance of probabilities, we cannot say how the outcome might have been different, then we can recommend a payment for distress to reflect that uncertainty. Where we decide it is appropriate, we will normally recommend a remedy payment for distress of up to £500’. I consider that £500 symbolic payment remedies the distress and uncertainty caused to Mrs X and Y.

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Action

29. Within one month of the date of the decision on this complaint, the Council should:
• Pay Mrs X £500.
30. The Council should provide us with evidence it has complied with the above actions.

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Decision

31. I have completed my investigation and I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman