Summary: Mrs X complains about the Council’s delay in carrying out an annual review of her child’s Education Health and Care Plan causing distress and uncertainty. We found service failure by the Council due to the delay in carrying out the annual review. We have recommended a suitable remedy in this case and have completed our investigation.

The complaint

1. Mrs X complains there were failings in the way the Council carried out the annual review of her daughter Y’s Education Health and Care Plan (EHC Plan) as it did not comply with the statutory timescales. Mrs X says the Council also failed to ensure Y received suitable education once she stopped attending school in December 2023 causing loss of educational provision and distress to Y and the family.
2. Mrs X wants the Council to issue an amended EHC Plan with the correct banding as requested by the school. And a new placement that can support Y’s needs.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, 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).
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

11. I have investigated Mrs X’s concerns from January 2024 to 6 March 2025 when the Council issued a final amended EHC Plan. Mrs X has rights of appeal once the Council issued the final amended EHC Plan. It is reasonable to expect Mrs X to use her appeal rights if she disagreed with contents and placement in the EHC Plan. This is because the SEND Tribunal is best placed to consider such matters and can instruct the Council to make any changes to the EHC Plan.
12. If Mrs X has any concerns about the 2025 annual review process, then she needs to complain to the Council first as the process is still ongoing.

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How I considered this complaint

13. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
14. 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

Education health and care plan

15. 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.

Maintaining the EHC Plan

16. 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)
17. 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.

Alternative provision

18. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

Reviewing EHC Plans

20. 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)
21. 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 (so 12 weeks in total). Decisions to amend or cease a plan can be appealed to the SEND Tribunal.

What happened in this case

22. What follows is a brief chronology of key events. It does not include all the information I reviewed during my investigation.
23. Y has been diagnosed with Autistic Spectrum Disorder and other medical conditions. Y has an EHC Plan and started at an independent special school in September 2023. The Council reports the initial transition into the placement went well. But by December 2023 there were issues with transport to the school including travel times and Y’s attendance began to decline. In January 2024 the school noted Y’s emotional well-being was impacting negatively on her attendance along with illness in the family. In February 2023 Mrs X reported Y was refusing to attend school.
24. The Council says the school worked with Y and the family to put outreach provision in place to help Y integrate back into school. This included the school therapist providing support and 1:1 provision for Y.
25. The school and Council held an annual review of Y’s EHC Plan on 21 March 2024. The annual review documents noted all professionals and Y’s parents agreed to the request for a banding increase to support Y to reintegrate back to a full-time on-site attendance. This was for sustained 1:1 support for Y. The school said it could meet Y’s needs but required more financial support to do so. The annual review noted Y was accessing a 1:1 outreach timetable.
26. The outreach provision ran until late May 2024 as Y struggled to access it. The school decided to start Y back at school on reduced timetable with 1:1 support. The head teacher reports being in constant contact with Mrs X by telephone and email. The head teacher also left a block in their calendar for an hour each Tuesday for Y’s parents to attend school to check in with them. The notes record this had mixed success and Mrs X asked for alternative provision for Y.
27. The documents provided show Mrs X was in contact with the Council during April and May 2024 chasing updates on the amended EHC Plan after the annual review in March 2024. In July 2024 Mrs X reported she was keeping Y at home until September 2024 due to Y’s strong attachment to Mrs X which was making it difficult for Y to attend school. Mrs X said Y was receiving support from a personal assistant arranged through the Council’s Family Services which was proving helpful. Mrs Y said she was still waiting to hear back from the Council following the annual review in March 2024.
28. The Council sent the review response to Mrs X on 15 August 2024 as it proposed to amend the EHC Plan. Y started to attend school again in September 2024 with Mrs X taking her to school each day. The school reported this stopped after a few weeks and Y did not attend school. Mrs X chased the Council for an update on the draft amended EHC Plan.
29. A SEN officer held a telephone call with Mrs X on 19 September 2024. Mrs X said Y had not been attending school since December 2023, she was concerned the EHC Plan was not being followed and they were unable to reintegrate her back to the school. Mrs X said due to issues with school transport she was having to take Y to school which was a 30-minute trip each way. This was causing issues as she had other children to take to school.
30. A SEN officer apologised for the delay in amending the EHC Plan. The officer noted large parts of the plan were out of date but as Y had not been attending school there was no up-to-date information. The officer said the Council could issue an amended plan on the information available or hold a virtual meeting to amend certain parts if the evidence was available to suggested changes were needed. Mrs Y agreed to a virtual meeting to discuss amendments to Y’s EHC Plan. Mrs X agreed to try and send her suggested amendments to the officer that day.
31. The virtual meeting took place on 27 September 2024 with Mrs X to discuss amendments. The Council sent the first draft of the amended Plan to Mrs X on 9 October 2024. Mrs X responded on 11 October 2024 with further suggested amendments. Mrs X said the draft amended Plan showed no change in provision for Y which was concerning to her. Mrs X asked the Council to issue a final EHC Plan so she could appeal to the SEND Tribunal.
32. The Council sent a consultation letter to Y’s school on 21 November 2024. The school said it could meet Y’s needs but required an increased level of funding. The school sent in the banding increase request. A SEN officer was instructed to complete the amendments to Y’s EHC Plan for it to be re-banded. The request for additional funding would be considered once the amendments were completed. The Council says unfortunately due to capacity issues the amendments were not completed and the EHC Plan not re-banded.
33. The Council also sent a consultation letter to another school in November 2024 which was Mrs X’s parental choice. The school declined to offer Y a place.
34. The SEN officer left the Council in December 2024. The Council appointed interim case managers to Y’s case. Mrs X contacted the Council in January 2025 as there had been no response to her previous contacts. Mrs X said Y had now been out of school for a year and requested an urgent review of Y’s EHC Plan. Y’s school also contacted the Council. The school said Y’s placement had broken down with Y no longer attending and Mrs X no longer willing to engage with the school.
35. The Council allocated a case manager on 3 February 2025. The new case manager contacted the family on 21 February 2025. The school continued to communicate with Mrs X until 6 March 2025. The Council noted Y’s health had declined with the school now saying it cannot meet her needs. The school said it would hold an annual review on 6 March 2025 as Y had been diagnosed with further medical needs.
36. On 6 March 2025 the Council issued a final amended EHC Plan ready to be reviewed at the next annual review. The EHC Plan noted that although Y had clearly done a lot of good learning at home, she had gaps in her learning due to missed school, limited attendance and difficulties engaging with classroom activities. The EHC Plan proposed Y’s current school as her placement.
37. The review took place on the same day. Following the annual review the Council issued a decision to amend and sent Mrs X an amended EHC Plan in May 2025. The Council says it is working with Mrs X to agree a final amended EHC Plan.

Council comments on the complaint

38. The Council acknowledges and regrets the delays caused in responding to the annual review in 2024 and there was drift in the casework in Y’s case. It says it has faced challenges in responding to annual reviews within statutory timelines due to capacity issues within its services. In recognition of this it is working through a programme of recovery, including several improvements. One aim is to recruit officers to reduce caseloads, and the other is the SEND academy to support officer training and Continuing Professional Development (CPD). The Council has also provided training to officers.
39. The Council plans the increased staffing levels will enable improvements to be made with communication and capacity within the teams. It has now recruited 20 EHC Plan writers. And another six officers (Team Managers and Practice Development Officers) due to start by the start of the new academic year in September 2025.
40. The Council says this extra capacity will improve its ability to respond to annual reviews within statutory timelines and improve communication with families. It says the recovery programme should also support it to keep staff.
41. The Council says it did not consider section 19 provision for Y. This was because the school was actively engaging with the young person and the family with a range of alternative provisions aimed at reintegrating into the school. This included 1:1 outreach, reintegration programmes, reduced timetables, weekly or daily visits and remote learning. The Council says it will work with the family and put together a section 19 offer while continuing to seek a suitable school placement following the annual review in March 2025.
42. The Council says it considered its section 42 duties and was satisfied it could be delivered in the placement which available and accessible to Y. The Council considered the placement at the school remained suitable and the school had confirmed it could need Y’s needs.
43. The Council considered the school was delivering alternative provision while Y was not attending school from January 2024 which was suitable for Y’s needs. The school was also pro-actively planning a reintegration strategy as her placement was never formally ceased. During the consultation in December 2024, the school reaffirmed its capacity to support Y with extra funding. It was not until February 2025 the school said it could no longer meet need.

My assessment

44. The Council accepts it delayed issuing an updated EHC Plan for Y after the annual review in March 2024 due to capacity issues within its SEN service which is service failure. The annual review meeting took place on 21 March 2024. The Council decided to amend Y’s EHC Plan so should have issued the final amended EHC Plan on or around 24 June 2024 being 12 weeks after the annual review meeting. The Council did not do so until 6 March 2025 which was nearly eight months after the required statutory deadline.
45. The Council is making service improvements through its recovery programme and has assured us of the actions it is taking to address delays in the EHC Plan process. We are therefore satisfied the Council has a plan and is taking steps to address the issue at the heart of this complaint. So, we do not consider there is a need to make service improvements recommendations in this case.
46. However, the Council’s failure to meet timescales set out in Government guidance to issue the updated EHC Plan is fault. It will have caused an injustice to Mrs X and Y through frustration, distress, and uncertainty about the provision to be made for her. And it delayed Mrs X’s appeal rights to the SEND Tribunal and ability to challenge the placement until the final plan was issued. So, I recommend the Council should apologise to Mrs X for the delay in completing the annual review in 2024. It should also provide a remedy to Mrs X and Y by making Mrs X a symbolic payment of £500 to recognise the distress, frustration and uncertainty caused and for the delayed appeal right.
47. The Council has provided evidence to show it considered its section 42 duty and was satisfied with the provision being made by the school for Y when she was not attending school. It also considered section 19 did not apply in Y’s case as the school was actively engaging with Y and her family. This included a range of alternative provision aimed at reintegrating Y back into school. There is no evidence of fault by the Council. I am satisfied the placement was available and accessible to Y as the school confirmed it could meet her needs. The situation only changed in February 2025 and is being considered under the March 2025 annual review process. The Council is now considering section 19 provision for Y as she has been diagnosed with more medical conditions.

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Agreed Action

48. Within one month of my final decision the Council will:
• Apologise to Mrs X and Y for the delay in completing the annual review in 2024. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Make Mrs X a symbolic payment of £500 to recognise the distress, frustration and uncertainty caused and for the delayed appeal right.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. I find fault causing injustice and have recommended a suitable remedy for the injustice caused in this case.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman