Summary: Mrs B complained the Council failed to adhere to the statutory timeframe for issuing an amended Education, Health and Care Plan following an annual review. We find the Council at fault for a delay in issuing the final amended Education, Health and Care Plan. This caused distress, frustration and uncertainty to Mrs B and delayed her son, Y, starting specialist provision. The Council has agreed to apologise and make a symbolic payment to Mrs B in recognition of the injustice caused.

The complaint

1. Mrs B complained the Council delayed in issuing a final Education, Health and Care Plan for her son, Y, following an annual review. Mrs B says Y has been offered a special school placement but the delay in issuing the final Plan means the placement has not been secured and he continues to attend an unsuitable school. Mrs B says this has impacted Y’s access to education and has impacted homelife for the family. Mrs B would like the Council to issue a final Education, Health and Care Plan with a special school named.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
6. 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

7. 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.
8. 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 take place.
9. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the Plan is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
10. 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 and the final amended Plan should be issued within 12 weeks of the review meeting.

Council’s complaints policy

11. The Council has a two stage process for dealing with complaints.
12. The policy says at stage one the Council is allowed 20 full working days to investigate the complaint. At stage two the Council is allowed 25 full working days to complete a review.

What happened

13. Y began primary school in September 2023.
14. An annual review meeting took place in May 2024. According to statutory timeframes the Council should have issued Y’s final amended EHC Plan no later than early August 2024.
15. In August 2024, the Council agreed Y needed to attend a specialist setting. It agreed to increase the funding for Y to attend a mainstream setting, and repeat reception year, while a suitable specialist setting was found.
16. The council did not issue the final amended EHC Plan until the end of April 2025. This is a delay of approximately 9 months. The final amended EHC Plan named an independent specialist setting.
17. Between May 2024 and April 2025, Mrs B contacted the Council for updates on multiple occasions. The Council’s communication with Mrs B was not always prompt and there were occasions where Mrs B chased the Council numerous times before she received a response.
18. In response to Mrs B’s request for an update, the Council explained the delay in updating the EHC Plan was due it being phase transfer time. In response to our enquiries the Council explained the delay was due to a high number of EHC Plans waiting to be checked and staff being on long term sick.
19. Mrs B submitted a stage one complaint to the Council in June 2024. The Council issued a stage one complaint response in July 2024, within the timeframe set out in its complaints policy.
20. Mrs B was not satisfied with the stage one response and asked for her complaint to be considered at stage two. The Council issued the stage two complaint response at the end of August 2024, 28 working days later. This is 2 days over the 25 working days allowed according to the Council’s complaints policy.

My findings

21. The Council did not adhere to the statutory timeframes for issuing a final amended EHC Plan following the annual review in May 2024. There was an approximate 9 month delay in the final Plan being issued. This is fault which caused Mrs B distress, uncertainty and frustration. It also meant there was a delay in Y starting a specialist placement.
22. The Council’s communication with Mrs B was inconsistent and there were occasions where her requests for updates were not responded to. This is fault which caused Mrs B distress, frustration and uncertainty.
23. There was a 2 day delay in the Council issuing its stage two complaint response. This delay is fault which added to the distress, frustration and uncertainty Mrs B experienced.

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Action

24. Within one month of the final decision the Council will:
• Apologise to Mrs B. 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 £3,000 to Mrs B in recognition of the injustice caused by the delay in issuing the final amended EHC Plan. In line with our guidance on remedies, this is calculated at £1,000 per term of delay and takes into account the fault resulted in a loss of educational provision during Y’s first year of compulsory education.
• Make a further symbolic payment of £250 to Mrs B in recognition of the injustice caused by the Council’s failure to respond to all of Mrs B’s communication, and the time and trouble Mrs B has spent pursuing her complaint.
25. I have not made any service recommendations as suitable recommendations have been made recently and need time to be implemented.
26. The Council should provide us with evidence it has complied with the above actions.

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Decision

27. I find fault causing injustice. The Council has agreed to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman