Summary: The Council was at fault for failing to adhere to the statutory timescales in reviewing Mr X’s child’s Education, Health and Care Plan. The Council was also at fault for failing to ensure delivery of Mr X’s child’s Education, Health and Care Plan provision. The Council agreed to apologise to Mr X and his child and provide a symbolic payment for the avoidable frustration and distress caused and the missed Education, Health and Care Plan provision.

The complaint

1. Mr X complained the Council failed to provide his child’s Education, Health and Care (EHC) Plan provision as set out in the April 2023 plan.
2. Mr X also complained about the failure of the Council to adhere to the statutory EHC Plan annual review process and timescales.
3. Mr X says the Council’s actions caused his child to miss their EHC Plan provision and caused frustration and distress to the family.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. 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).
6. 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)
7. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as NHS Trusts. (Local Government Act 1974, sections 25 and 34(1), as amended)
8. 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)
9. 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).
10. 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

11. I have investigated Mr X’s complaint about the lack of educational provision available to his child from April 2023. Even though Mr X only complained to the Ombudsman in December 2024, I have exercised discretion to investigate from April 2023 because of the time taken for Mr X’s complaint to be handled by the Council. I have also investigated any delays by the Council surrounding the review of his child’s EHC Plan until March 2025.
12. I have not investigated any educational support available to Mr X’s child before April 2023. This is because the Council only produced the first EHC Plan in April 2023 meaning it was not responsible for delivering any provision before this date.
13. I also cannot investigate matters which a person was aware of but did not bring to our attention for more than 12 months. In the circumstances of Mr X’s complaint this includes the educational provision before April 2023, his complaint about free school meals and the social care complaints. There is no good reason Mr X could not have brought these complaints to us sooner.
14. I have not investigated Mr X’s complaint about failure to deliver the Section G provision in his child’s EHC Plan. This is a matter for the Parliamentary and Health Service Ombudsman after Mr X has exhausted the relevant NHS Trust services complaints procedure.
15. I have also not investigated any matters previously considered by the tribunal. If a tribunal has considered a complaint, the Ombudsman is barred from investigating the same matters. In the circumstances of Mr X’s complaint this includes the Council’s decisions not to assess for an EHC Plan, before April 2023, and Mr X’s appeal about the Council’s decision to cease the EHC plan.

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How I considered this complaint

16. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
17. Mr X and the Council had an opportunity to comment on my draft decision before I made a final decision.

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What I found

Rules and Regulations

18. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
19. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
20. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. An annual review is completed when a council issues a letter advising of intention to cease, maintain or amend an EHC Plan following an annual review meeting.
21. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
22. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or end the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
23. Where a 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
24. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
25. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the Final amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
26. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
27. Section 45 of the Children’s and Families Act outlines a council may cease an EHC Plan if they are no longer responsible for the child or they consider it is no longer necessary for the plan to be maintained. The statutory guidance explains that studying a degree at a higher education institution such as a university would mean a person is no longer entitled to an EHC Plan.
28. If a local authority decides to cease an EHC Plan it must not stop provision until the deadline to make an appeal against the decision has passed, or, if an appeal was made, the appeal has been heard and dismissed.
29. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

What happened

30. In April 2023, the Council issued a first EHC Plan for Mr X’s child, who I shall refer to as Y. This EHC Plan named Y’s school in Section I and detailed Y’s school should provide the full Section F provision.
31. In September 2023, Mr X told the Council Y’s school was not providing the EHC Plan provision detailed in the plan. The Council held a meeting with Mr X and said it would contact Y’s school about the lack of provision.
32. The Council liaised with Y’s school who at first told the Council it did not have a copy of Y’s EHC Plan. Following the Council providing a copy of the EHC Plan to the school, the school told the Council it had some provision in place and asked the Council for support with the missing provision.
33. In November 2023, Mr X asked for an urgent review of Y’s EHC Plan. Mr X said Y’s school had not put any of the provision from Y’s EHC Plan in place since April 2023.
34. The Council issued an amended Final EHC Plan for Y which included extra content for Section G but did not amend Sections I or F. The Council issued this outside a formal annual review process.
35. Mr X continued to contact the Council to advise Y’s school had not put in place the Section F provision from the EHC Plan. The Council suggested an annual review for Y’s EHC Plan to assess. Y’s school suggested a date in December 2023 but Mr X advised they would not be available until the start of January 2024.
36. Mr X lodged an appeal to the Tribunal in December 2023 about the failure of the school to deliver the EHC Plan provision but not about the content of Section F.
37. The Council held an annual review for Y’s EHC Plan in April 2024. During this annual review meeting, Mr X expressed concerns again about the lack of Section F provision from Y’s school.
38. At the start of May 2024, the Council wrote to Mr X to advise it proposed to amend Y’s EHC Plan following the annual review meeting. The Council said it would make any changes as part of the outcome of the appeal to the Tribunal.
39. Mr X withdrew his appeal with the Tribunal at the end of May 2024.
40. Y finished at sixth form in the summer of 2024 and started a university course in the autumn of 2024.
41. In March 2025, the Council decided to cease Y’s EHC Plan and told Mr X about his appeal rights.
42. Mr X lodged a complaint with the Council and raised an appeal with the Tribunal about cessation of the EHC Plan.
43. The Council issued a Stage one complaint response. The Council said:
1. It held an annual review meeting for Y’s EHC Plan in April 2024 and said it would amend Y’s EHC Plan following this meeting. The Council said it did not make the amendments to the EHC Plan because Mr X withdrew the tribunal appeal.
2. Following Mr X’s contact in September 2023 about lack of EHC Plan provision it contacted Y’s school and was satisfied the school had put the provision in place.
3. It arranged an annual review meeting following Mr X’s request for an urgent annual review. The Council said this was delayed because Mr X said he could not attend in December 2023 and because of the tribunal appeal.
4. Following Y’s examinations in 2024 they left school and started to attend university; this meant the EHC Plan no longer applied.
44. Mr X sought consideration of his complaint at Stage two of the Council’s complaints procedure. The Council refused to progress to Stage two so Mr X approached the Ombudsman with his complaint.

Analysis

EHC Plan reviews

45. The Council had 12 months from April 2023 to hold an annual review meeting for Y’s EHC Plan and decide whether to amend, maintain or cease Y’s EHC Plan. The Council held the annual review meeting within 12 months, in April 2024, but issued its decision to amend two weeks outside the 12-month timescale; this was fault.
46. When the Council issued its decision to amend, it failed to provide any details of its proposed amendments to the plan and instead said it would decide this as part of the tribunal appeal. The Council should still be completing the annual review process as a separate process to the tribunal appeal. Combining the two and failing to carry out the annual review process was fault.
47. It is also of note that during this timescale, the Council agreed to complete an emergency annual review of Y’s EHC Plan in November 2023. Despite this, the Council failed to arrange an annual review meeting from the original proposed date in December 2023 until April 2024. While there is no statutory timescale in arranging an emergency annual review meeting the Council should be holding these as soon as possible. The Council failed to rearrange the meeting for four months; this was fault.
48. Following the Council’s decision to amend Y’s EHC Plan in May 2024, the Council had eight weeks to issue an amended Final EHC Plan, until the end of June 2024. The Council did not issue an amended EHC Plan and ultimately ceased the plan in March 2025. The Council’s failure to issue an amended EHC Plan until this point was fault.

EHC Plan provision

49. The Council had an absolute, non-delegable duty to secure Y’s Section F EHC Plan provision from production of the EHC Plan in April 2023. While the Council could arrange for delivery of the Section F EHC Plan provision by Y’s school, it was ultimately responsible for ensuring Y’s provision was in place.
50. We do not expect a council to maintain a watching brief over a school for delivery of a child’s EHC Plan. However, a council should be investigating a person’s concerns that an EHC Plan is not being provided. The Council should also ensure review of deliver of a child’s EHC Plan at least once per year at the annual review.
51. When the Council contacted Y’s school in September 2023, the school failed to evidence most EHC Plan provisions were in place. Mr X also continued to dispute Y’s school was putting in place any EHC Plan provision. The Council failed to suitably investigate and ensure delivery of Y’s EHC Plan provision. The annual review held in April 2024 also noted Mr X’s concerns about failure to deliver the EHC Plan provision but did not verify if the provision was in place.
52. The Council has failed to ensure Y’s EHC Plan provision was in place from April 2023 until the end of the academic year 2023/2024. This was fault.
53. In the academic year 2024/2205, Y stopped attending their Section I placement and started to attend university. The Council worded the Section F provision in Y’s EHC Plan so that Y’s educational placement would deliver the provision. Since Y was no longer attending their Section I placement, and a council cannot require a university to deliver EHC Plan provision, Y’s Section F provision was undeliverable. However, the Council is still responsible for ensuring a young person has access to their EHC Plan provision until the Council decides to cease an EHC Plan and, in this case, until Mr X’s appeal was heard by the tribunal.
54. The Council’s failure to prepare for Y’s transition from sixth form when it completed the April 2024 annual review, has resulted in a situation in which it was obliged to deliver EHC Plan provision which it could not facilitate delivery of because Y was at university. This was fault. The Council’s fault caused uncertainty and frustration to both Mr X and Y about what support, if any, Y would receive at university. This has not caused lost provision for Y because the tribunal decided to strike out Mr X’s appeal because Y entered higher education and was not entitled to the EHC Plan provision since September 2024. The tribunal said the appeal had no chance of success and denied the appeal to the upper tribunal; this was a decision for the tribunal to make which simply informs our findings.

Recommendations

55. The Council’s actions through both the failure to follow the statutory timescales in reviewing Y’s EHC Plan and the failure to ensure delivery of Y’s EHC Plan provision caused an injustice to both Mr X and Y.
56. Both Mr X and Y experienced avoidable frustration and distress through the Council’s actions and Y failed to receive the educational provision they were entitled to.
57. In response to our enquiries, the Council offered an apology to Mr X and Y, £1,000 in recognition of the distress and frustration caused and £4,000 for Y’s lost EHC Plan provision since April 2023. I consider the Council’s offer suitable in the circumstances of Mr X’s complaint which falls in line with the Ombudsman’s guidance on remedies.
58. The Council has already carried out service improvements for its record keeping. The Council has confirmed it will complete training for its staff in relation to checking if EHC Plan provision is in place and carrying out the annual review process for EHC Plans. I consider the Council’s service improvements are suitable to address the fault found.

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Action

59. Within one month of the Ombudsman’s final decision the Council should:
1. Provide an apology to Mr X and Y for the distress, frustration and missed Education, Health and Care Plan provision caused by its actions. 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 in my findings.
2. Provide a payment to Mr X of £1,000 for the avoidable distress and frustration it has caused.
3. Provide a payment to Mr X of £4,000 for Y’s missed Education, Health and Care Plan provision since April 2023.
60. Within three months of the Ombudsman’s final decision the Council should:
1. Complete staff training for how it investigates, checks and records Section F provision from a child’s Education, Health and Care Plan is in place when a new or amended plan is issued, during the annual review process and when a person raises concern with it about provision not being in place.
2. Complete staff training for how it processes annual reviews of an Education, Health and Care Plan when there is an appeal to the Tribunal or when a child is due to transition to a stage in life which would bring into question the responsibility to continue an Education, Health and Care Plan.
61. The Council should provide us with evidence it has complied with the above actions.

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Decision

62. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman