Summary: The Council failed to issue a decision following an annual review meeting and delayed issuing a decision following a later annual review meeting. This delayed Ms X’s appeal right to the Special Educational Needs and Disability (SEND) Tribunal and caused her distress. The Council also delayed providing increased funding to the School and delayed responding to Ms X’s complaint. I have recommended a remedy.

The complaint

1. Ms X complained the Council failed to provide a decision following her child’s (C) annual review and failed to provide the section F provision in either the original or amended (but not finalised) Education, Health and Care Plan. She also complained the Council delayed responding to her complaint. This impacted on C’s progress at school and their mental health. Ms X would like the Council to make a decision following the annual review and comply with statutory timescales. She would also like the Council to provide extra tuition in Maths and English for C.

Back to top

The Ombudsman’s role and powers

2. 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.
3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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. 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(1), as amended)

Back to top

What I have and have not investigated

6. The first annual review meeting was in July 2024. The Council did not issue a decision following the meeting. The School held a further review in March 2025 and the Council issued its decision in May 2025. I have investigated the Councils actions from the date of the first annual review meeting in July 2024 to the point when it made a decision in May 2025.
7. I have not investigated the Council’s decision to maintain C’s EHC Plan in May 2025. This decision had a right of appeal to the Tribunal. The law says we cannot investigate any matter which was connected to a matter which can be appealed to the Tribunal, even if the person does not appeal. I have considered this period in the context the Council still needed to provide the January 2024 EHC Plan provision. Any other information provided about this period is for background only.
8. The School held a further annual review in July 2025. The Council issued its decision in September 2025. I have investigated this period in relation to the Council’s handling of the EHC Plan annual review. I have not investigated any matters after the Council produced the September 2025 final EHC Plan because Ms X again had a right of appeal to the SEND Tribunal.

Back to top

How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Relevant legislation

The Education, Health and Care (EHC) Plan 

11. 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. 
12. 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)  
13. 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. 

14. 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 cease 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) 
15. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
16. 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). 
17. 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. 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.

Appeal rights

18. There is a right of appeal to the Tribunal against a council’s decision not to amend an EHC Plan following a review or reassessment.
19. 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)
20. The period we cannot investigate starts from the date the appealable decision is made and given to the parents. If the parent goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
21. 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.

The Council’s policies and procedures

22. The Council’s complaints policy is available online. It is a two-stage process.
23. The policy says the Council aims to respond to complaints at stage one within ten working days of receipt. If the complaint is complex or key people are not available, it will respond within 20 working days. If it cannot respond within this timescale, it will provide updates every two weeks.
24. The policy says the Council aims to respond to complaints at stage two within 20 working days of receipt. If it cannot respond within this timescale, it will provide updates every two weeks.

What happened

25. I have summarised below the key events; this is not intended to be a detailed account.
26. C has special educational needs. C attended primary School and had an EHC Plan, dated January 2024.
27. The School completed an annual review meeting in July 2024.
28. In August 2024, the School sent the annual review meeting report to the Council. The annual review report recommended the Council amend the EHC Plan to include extra funding to prevent permanent exclusion of S. The report set out the current provision map which cost £19,000 per year. This included 11 hours of one-to-one support in lessons. The proposed provision map for the new academic year costed around £28,000 and included 20 hours of one-to-one support in lessons for C and four hours a week of one-to-one tutoring in English and Maths.
29. In October 2024, the Council emailed the School and said it had increased S’s funding to around £28,000. The Council made no decision about whether to maintain, amend or cease C’s EHC Plan.
30. The School held an annual review in March 2025.
31. In May 2025, the Council decided to maintain the January 2024 EHC Plan. In doing so, the Council maintained the funding amount of £19,000 per year for C despite providing £28,000.
32. In July 2025, the School held an emergency annual review meeting.
33. The Council decided to amend the EHC Plan and issued a draft version in September 2025. The following week, the Council finalised the EHC Plan. The Council had already increased its funding for C to around £28,000.

The complaint

34. In October 2024, Ms X sent two complaints to the Council. The first complaint was about the Councils failure to make a decision following the annual review meeting in July 2024. The second complaint was about the Councils failure to provide the provision in section F of the EHC Plan.
35. The Council issued a stage one response in December 2024 which dealt with both complaints. The Council upheld Ms X’s complaint about its failure to make a decision after the annual review meeting. It apologised for the delay and said this was because of unprecedented demand on the service. It explained it had made changes to improve the SEND service for the future. The Council suggested a further annual review meeting, instead of making a decision following the previous annual review meeting. The Council partially upheld Ms X’s complaint about failing to provide education. It said while there had been delay, the Council had agreed and provided the funding.
36. Ms X was not satisfied with the Councils response and asked for a review in early December 2024.
37. Ms X did not receive a response from the Council and complained to us in January 2025. As Ms X had not received a stage two response from the Council, we referred the case back to the Council to complete its investigation. We advised Ms X she could still use the Ombudsman service if she was not satisfied with the Council’s final response.
38. The Council issued a stage two response in early March 2025 which supported the stage one findings.
39. Ms X was not satisfied with the Councils final response and came back to us. While the Council upheld her complaint, she had not received a resolution. She said there was no formal decision following the annual review meeting in July 2024 which frustrated her right to appeal to the Tribunal.

Analysis

Failure to make a decision

40. The Council must decide to amend, maintain or cease the EHC Plan within four weeks of the annual review meeting. The School held the annual review meeting in July 2024. The Council should have decided to amend, maintain or cease the EHC Plan by August 2024. The Council did not issue a decision. The Council upheld this part of Ms X’s complaint. It accepted it was at fault for delay in the annual review process and apologised. I agree the Council was at fault as it failed to issue a statutory decision.
41. In its complaint response, the Council said instead of issuing a decision following the annual review it would complete a further review. This took place in March 2025, shortly after the stage two complaint response. The Council should have issued a decision to amend, maintain or cease the EHC Plan within four weeks of the annual review meeting, by April 2025. The Council issued the decision to maintain the EHC Plan in May 2025. This was a month delay following the annual review meeting in March 2025 and a nine-month delay following the annual review meeting in July 2024. The Council is at fault for failing to meet statutory deadlines.
42. The Council should have completed the full annual review process, and decided to amend, maintain or cease C’s EHC Plan within 12 months of the original EHC Plan. The previous EHC Plan is from January 2024. The Council decided to maintain the EHC Plan in May 2025. This was a delay of four months, this was fault.
43. The delay issuing the decision caused Ms X uncertainty and distress as she did not know what the Council’s decision was going to be. Once the Council issued its decision, this triggered the right of appeal to the Tribunal. The Council’s delay issuing the decision delayed Ms X’s right of appeal. This was her injustice. Ms X did not appeal the decision; this therefore limits the injustice.
44. The Council held an emergency annual review meeting in July 2025. The Council should have issued a decision to amend, maintain or cease the EHC Plan within four weeks of the meeting (August 2025). The Council issued the decision and a draft EHC Plan in September 2025. This was around a month late and was fault. The Council finalised the Plan a week later. While the Council was at fault for delay issuing its decision to amend, it sent Ms X the amended EHC Plan within 12 weeks of the emergency annual review meeting. This meant it met the overall timescale required, preventing any injustice to Ms X or C.

Failure to provide section F provision

45. The Council had a duty to provide the provision outlined in C’s January 2024 EHC Plan since its finalisation.
46. Following the annual review in July 2024, the School provided a costed provision map. This set out the section F provision of C’s EHC Plan currently offered by the School. It also set out the intended extra section F provision for C and asked for extra funding to support and engage C in education. The Council did not decide to amend C’s EHC Plan to include this extra funding. As such, the Council was under no duty to provide this.
47. The School raised the funding request at the annual review meeting and submitted it to the Council in August 2024. Despite the Council failing to decide whether to amend, maintain or cease C’s EHC Plan, it provided the funding sought by the School in its annual review report. The Council agreed the funding in October 2024.
48. In its complaint response, the Council partially upheld this part of Ms X’s complaint as there was delay in securing the provision. Since the Council has accepted fault for delays in securing the extra funding for C, despite no amended EHC Plan being in place, I will not question its own finding of fault.

The complaints process

49. Ms X complained to the Council in early October 2024. The Council should have issued a stage one response within ten working days, or 20 if the matter was complex. The Council issued a stage one response in early December 2024. This was around a month late. This was fault.
50. Ms X asked for a stage two investigation in early December 2024. The Council should have issued a stage two response within 20 working days. The Council responded in early March, after Ms X had brought the matter to us. The stage two response was around two months late. This was fault.
51. The Council apologised for the delay in its complaint responses to Ms X.
52. In response to my enquiries, the Council offered Ms X £500 for the distress caused by the delay in responding to her complaint. This is in line with the Ombudsman’s guidance on remedies. I do not need to recommend any further remedies for the Councils delay issuing its complaint response.

Summary of fault causing injustice

53. The Council was at fault for failing to make a decision following the annual review meeting in July 2024 and delay issuing a decision following the annual review meeting in March 2025. The Council has already accepted it was at fault. This caused Ms X uncertainty and distress as she did not know what the Council’s decision was going to be and it delayed her right to appeal to the Tribunal. This was her injustice. Ms X did not appeal to the Tribunal, which limits her injustice.
54. If Ms X was not happy with the Council’s decisions following the annual reviews, the correct mechanism was to appeal to the Tribunal. This is outside the Ombudsman’s jurisdiction.
55. The Council partially upheld Ms X’s complaint as it delayed securing the additional funding to the School. The fault the Council identified caused C to miss some of their increased provision. This is their injustice.
56. The Council also delayed issuing its complaint response. It has already apologised and offered Ms X £500 for the distress caused.

Back to top

Action

57. Following a previous Ombudsman decision, the Council has agreed to make service improvements to its Special Educational Needs and Disability Service. I do not need to make any further service improvements recommendations.
58. Within four weeks of the final decision, the Council should:
• Pay Ms X £500 for the distress caused by the delay responding to her complaint, as offered in response to my enquiries.
• Apologise to Ms X and pay her £500 for the distress and uncertainty caused by the delay issuing the decision following the annual review.
• Apologise to Ms X and pay her £200 for the delay providing the additional funding for the increased provision to support C’s education.
59. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

60. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Back to top

Investigator's decision on behalf of the Ombudsman