Summary: Ms X complained the Council delayed in completing a review of her child’s Education, Health, and Care Plan. The Council accepted it was at fault for the delay and apologised. Following our investigation it also agreed to provide a financial remedy to recognise the avoidable distress caused to Ms X by the delay, and issue a reminder to staff about statutory review timescales.

The complaint

1. Ms X complains the Council delayed in reviewing her child D’s Education, Health, and Care (EHC) Plan following a review meeting in mid-2024. Because of this Ms X says she experienced distress, time, and trouble in chasing the Council. She also says this frustrated her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) about D’s final EHC Plan.
2. Ms X wants the Council to apologise and pay her a financial remedy to recognise the time and trouble caused to her in resolving the issues. She also wants the Council to address systemic issues with its Special Educational Needs and Disability Service.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot normally investigate when someone had a right of appeal to a tribunal, even if they did not use it. 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)
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)

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How I considered this complaint

6. I considered evidence provided by Ms X and the Council, and relevant law, policy and guidance.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
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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What I found

Legislation and guidance

Education, Health, and Care (EHC) Plans

9. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
10. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and reviews, and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.

Reviewing EHC Plans

11. 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) 
12. 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.

EHC Plan appeal rights and mediation

13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the Tribunal in this decision statement.
14. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the SEN provision specified, or the school or placement specified in the EHC Plan; and
• amendment to these elements of an EHC Plan.

15. We cannot direct changes to the sections of an EHC Plan about a young person’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
16. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation.
17. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
18. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
19. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started.

What happened

20. In June 2024, D was coming to the end of year 3. D’s school held an EHC Plan annual review meeting.
21. In September 2024, D started year 4. The Council had not yet issued an amended EHC Plan following the recent review meeting, so Ms X complained about the delay. The Council responded to the complaint in October 2024. It accepted it was at fault for the delay, apologised, and said it was working to progress the review.
22. Three weeks later, in late-October 2024, the EHC Plan review had not progressed, so Ms X escalated her complaint to Stage 2. The Council responded in November 2024. It said it would not investigate the complaint further as it considered it had fully addressed this at Stage 1 and had nothing further to add. Ms X then brought her complaint to the Ombudsman.
23. In January 2025, two months after Ms X came to the Ombudsman, the Council issued a final amended EHC Plan for D. In April 2025, Ms X told us she was going through mediation with the Council because she disagreed with the SEN provision set out in the January 2025 EHC Plan. She said she planned to appeal to the SEND Tribunal if the Council did not agree to her proposed changes.

My findings

24. I cannot consider matters Ms X is appealing to the SEND Tribunal, i.e., whether the content of the January 2025 EHC Plan is suitable. However, I can look at delays in the review process before the Council issued the final Plan and the appeal right started.
25. Following the mid-2024 review meeting, the Council should have issued a final amended Plan within twelve weeks. It delayed issuing the Plan by four months, which was fault. In responding to Ms X’s complaint, the Council accepted it was at fault for the delay and apologised. I do not see any value in directing it to make a further apology now. However, I consider it should also provide a financial remedy to recognise the avoidable distress caused to Ms X by the delay, because she spent time chasing the Council and it frustrated her right of appeal to the Tribunal.
26. I considered whether D missed added provision because of these delays. However, I decided changes to the content of the EHC Plan in January 2025 were not significant, so the delay in amending the Plan did not change anything in terms of the provision D received.

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Action

27. Within one month of our final decision the Council will:
1. pay Ms X £200 to recognise the avoidable distress caused by the delay in completing the EHC Plan review and issuing a final amended Plan; and
2. issue a reminder to staff in its Special Educational Needs and Disability Service about the statutory timescales for completing EHC Plan reviews.
28. The Council will provide us with evidence it has complied with the above actions.

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Decision

29. I find fault causing injustice. The Council agreed to my recommendations for actions it should take to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman