Summary: Mr X complains about the Council’s delay in updating his Son’s Education, Health and Care Plan following his annual review. We find the Council at fault for delay, lack of communication and loss of specialist provison. We have agreed financial remedies for the distress and frustration caused.

The complaint

1. Mr X complains about the Council’s delay in updating his son’s Education, Health and Care Plan after the annual review in January 2024.
2. Mr X sought an early annual review in July because of a change in his son’s needs. The Council did not agree to this as it had not updated the previous Education, Health and Care Plan.
3. Mr X had to give up work to look after his son which has caused him financial and emotional pressure. He would like an apology from the Council and compensation for his loss of earnings.

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The Ombudsman’s role and powers

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

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How I considered this complaint

7. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
8. Mr 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

Legal and administrative background

Education, Health and Care Plan

9. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.
10. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
11. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.

Annual Reviews

12. The Council’s duties on EHC Plan Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:
• Councils must review an EHC Plan at least every 12 months;
• Within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
• Within four weeks of the meeting, the council must decide whether it will keep the EHC Plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay. (SEND Regulations 2014 Section 20(10), and SEND Code paragraph 9.176)
13. The courts said councils must, from March 2022, send the parent or young person the final amended EHC Plan within a maximum of 12 weeks of the Annual Review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent. (R (L, M, and P) v Devon County Council [2022] EWHC 493)

Appeal right

14. There is a right of appeal to the SEND Tribunal against a decision not to assess, reassess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.

Council’s complaints procedure

15. The Council has a two stage complaints procedure:
• Stage one – a response from an appropriate officer within 20 working days.
• Stage two – a response from a manager within 20 working days.

What happened

16. Mr X’s son Y is Autistic, has a rare genetic condition and has an EHC Plan. Y was attending a mainstream school in January 2024.
17. On 1 July 2024 Mr X asked the Council for an early annual review.
18. Y’s EHC Plan was dated 4 August 2022. The Section F provison included an hour a week direct Speech and Language therapy and ten contacts a year with a physiotherapist.
19. An annual review had taken place in January 2024 but the Council had not finalised the EHC Plan and Mr X wanted a change of placement for Y.
20. Mr X told the Council on 8 July that Y was now on a reduced timetable at school until the end of term. The school confirmed this with the Council the next day.
21. The Council declined the change of placement on 9 July as the previous annual review had not been actioned. The Council wanted to action the annual review from 29 January immediately so Mr Y could request a change of placement when he received the Amendment Notice. The Council said it this would be quicker for Mr Y when it told him on 10 July.
22. Mr X made a complaint to the Council on 15 July saying he could not appeal the named placement as he does not yet have the updated EHC Plan from the annual review in January.
23. Between 10 and 25 July the school told the Council the annual review from January was now out of date. Y’s behaviours had declined due to the impact of his rare genetic condition.
24. The Council sent the Amendment Notice on 20 August. The next day Mr X emailed the Council to say he did not agree with the EHC Plan as it did not reflect the changes in Y.
25. On 5 September the school told the Council Y would remain on a part time timetable.
26. The Council responded to Mr X’s stage one complaint on 9 September. It said it sincerely apologised for the delay in processing Y’s EHC Plan after the January annual review.
27. Mr X sent a stage two complaint on 10 September saying the EHC Plan was sent out with the wrong password and no one had returned his calls. Y was attending school two days a week and was not getting any specialist provisions, and the school can no longer meet his needs.
28. In September and October the school and Mr X asked the Council for an early annual review. Mr X also sought the password again to access the Amendment Notice on 8 October.
29. The Council’s stage two response on 21 November said the early annual review request was not agreed in July as the previous annual review had not yet been actioned. The Amendment Notice was shared on the 21 August but Mr X could not access it as he had been given the wrong password. It said it recognised it failed to provide Mr X with the decision following the annual review and therefore denied his right of appeal. There has been significant delay completing this process and the Council sincerely apologises. The Amendment Notice was sent on 15 October. The Council said it will consider the request for a change of placement.
30. The Council offered £200 for the delay and £200 for the time and trouble of bringing a complaint.
31. The Council held the annual review on 21 November. The Council agreed to the change of placement in December and sent the Amendment Notice on 26 February 2025 after consulting with schools.
32. In response to our enquiries the Council said it agreed an independent special school on 16 April 2025 and it would issue an amended EHC Plan to this effect.
33. Y started at the independent special school after the Easter holidays in April 2025.

Analysis

34. The Council should have sent the Amendment Notice to Mr X within four weeks of the January Annual Review (see paragraph 12). It sent the Amendment Notice in August. This delay is fault by the Council, casing distress and frustration to Mr X.
35. Mr X sought a change of placement for Y in July. The Council said it would send the Amendment Notice immediately which would give Mr X the opportunity to make a representation for a change of placement. The Council said this would be quicker however it failed to send it until the end of August. The Council accept the delay. This is fault.
36. The Council knew Y was on a reduced timetable from July. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. However councils should show due diligence in discharging this important legal duty and as a minimum have systems in place to check the special educational provision is in place. 
37. I have not seen evidence the Council made enquiries Y was getting the provision in his EHC Plan. This is fault by the Council.
38. The complaint responses were both late (see paragraph 15). This is fault by the Council causing frustration to Mr X.
39. The Council failed to respond to Mr X’s request for the correct password. There was poor communication throughout which is fault causing distress and frustration to Mr X.
40. There was an early further annual review in November, but the Council did not send the amendment Notice until February. This delay is fault causing distress and frustration to Mr X.
41. Y missed 2.5 terms of specialist provison between July 2024 and April 2025; Speech and Language therapy (SaLT) and physiotherapy. I have recommended a payment for the missed provision.
42. The remedy offered by the Council totalling £400 is low so I have recommended a remedy based on our Guidance on Remedies below.

Remedies

43. I am aware we have made service improvements to this Council on similar cases (23012170, 23012748, 24004481, 23019445, 23014736, 24001526, 23015248, and 24010594) and the Council will provide the Ombudsman with its plan of action. It is clear the Council is experiencing issues which our remedies are addressing. I am satisfied the service improvements agreed on the other complaints also address the issues from this complaint, and the Ombudsman will continue to follow up with the Council on any previously agreed service improvements and we will monitor the impact of these changes through our complaints.
44. I can only recommend a symbolic payment to recognise the injustice caused by the Council’s failings, in line with our guidance on remedies. This says we recommend additional remedies for loss of SEN support such as Occupational Therapy, or other direct therapies and interventions. We consider the level of provision missed and the impact of this on the child.

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Agreed Action

45. Within one month of the final decision the Council should:
• apologise to Mr X for the delays in providing the EHC Plan after the annual reviews, failing to provide the specialist provison, and for poor communication. This caused distress, frustration, and uncertainty. We have published 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;
• pay Mr X £1000 to acknowledge the distress, frustration and uncertainty caused to him and Y by its failure to issue the final EHC Plan in line with statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC plan (26 March 2024) until the date it was issued and Mr X had the correct password to access it (15 October 2024), then again the date it should have been issued after the early annual review (31 December 2024), until the date if was issued (April 2025).
• pay Mr X £150 for the time and trouble of the late complaint response;
• pay Mr X on behalf of Y £1000 (£400 per term x 2.5 terms) for the lost provison (SaLT and physiotherapy).
• pay Mr X £250 for the distress and frustration caused because of the faults above. This is a symbolic amount based on our Guidance on Remedies.
• The total payment to Mr X is £2400.
46. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

I find fault by the Council for delay, poor communication and loss of specialist provison causing injustice to Mr X. I have recommended a financial remedy for the frustration and distress caused to Mr X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman