Summary: The Council was at fault because it poorly communicated with Mrs X following a review of her child, Y’s Education, Health and Care (EHC) Plan and delayed issuing a final EHC Plan. It failed to provide Y with alternative provision when they could not attend school, and it delayed responding to Mrs X’s request for a reassessment of Y’s needs. The Council also failed to complete a review of Y’s EHC Plan in preparation of Y’s school phase transfer year, and it delayed responding to Mrs X’s complaints. It caused Mrs X distress, frustration and uncertainty and delayed her right to appeal. Y also missed receiving educational provision. The Council has agreed to apologise to Mrs X and make her a symbolic payment for the injustice caused. The Council will also make service improvements to prevent a recurrence of fault.

The complaint

1. Mrs X complained about the Council’s actions in relation to her child, Y, who has special educational needs and an Education, Health and Care (EHC) Plan. She said the Council:
1. delayed informing her of its decision following a review meeting of Y’s EHC Plan and subsequently delayed issuing a final amended EHC Plan;
2. failed to provide Y with alternative provision when they were not able to attend school due to health matters between March 2024 and March 2025;
3. delayed responding to her request for a reassessment of Y’s educational needs;
4. delayed issuing a final amended EHC Plan when Y was due to transfer to a secondary school; and
5. delayed responding to her complaint.
2. Mrs X said it caused her distress and frustration, and it negatively affected Y’s educational development as well as their mental health. She wants the Council to apologise to her and issue a final amended EHC Plan.

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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. 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.
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)
6. 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

7. 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)
8. My investigation covers the period between May 2024, when Mrs X asked the Council to review Y’s EHC Plan and March 2025, when the Council issued a final amended EHC Plan. Mrs X appealed the EHC Plan in April 2025. Mrs X wants us to recommend the Council to issue a final EHC Plan following the recent tribunal. This is connected to events after the period of my investigation ends. Therefore, she will need to make a new complaint to the Council before we can decide whether to investigate it.

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How I considered this complaint

9. I spoke with Mrs X and considered information she provided.
10. I considered information provided by the Council.
11. I considered our ‘guidance on remedies’.
12. Mrs X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care (EHC) Plan

13. Some children and young people with special educational needs and disabilities will have an EHC Plan. The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
14. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan, or a council’s decision to refuse to carry out a reassessment.

Background

15. Mrs X’s child, Y, has a neurodevelopmental condition. Y also has mental health needs and subsequently, has struggled with attending school. Y has had an EHC Plan since February 2024.

What happened

16. The following is a summary outlining key events. It does not cover everything which has happened in this case.
17. Y was attending a mainstream primary school and was due to start secondary school in 2025.
18. Mrs X said in February 2024, Y’s attendance at school was extremely low and in March 2024, Y stopped attending school due to poor mental health.
19. In early May 2024, Mrs X contacted the Council and said:
• the School was concerned about its ability to manage Y’s behaviour and keep them safe;
• the School would send Y home immediately after a crisis or a communication breakdown; and
• the EHC Plan was based on information gathered about Y between September and October 2023. She said Y’s needs had changed a lot since then and so she asked the Council for an early review of the EHC Plan.
20. In mid-June 2024, the Council responded to Mrs X and advised her to speak with the School to arrange a review. It said as it would be a “transitional review”, the School would need to invite a SEND officer from the Council to attend.
21. In early July 2024, the School held a review of Y’s EHC Plan. The Council did not attend the review meeting. The review document states:
• Y was currently not attending school;
• Y’s needs were too great for a mainstream school; and
• Mrs X wanted Y to attend an online school which she had located. She said the online school would provide Y with support with trauma related behaviour and support Y with re-engaging with their education.

The School sent a copy of its review meeting record to the Council in mid-July 2024.

22. In August 2024, the School referred Y to an online school of Mrs X’s choice. Y started attending the online school at the beginning of September 2024 which the School had commissioned however, this came to an end in October 2024 as Y had struggled to engage.
23. In September 2024, Mrs X complained to the Council and said:
• as the Council did not attend the review meeting in July 2024, the discussion during the meeting was limited in relation to secondary school options. She therefore had no certainty about Y’s future; and
• since the review meeting, she had not received any communication from the Council, despite her chasing it up over the summer.
24. In mid-October 2024, the Council responded to Mrs X and said:
• as Y was in a key transfer year, the Council should have attended the review meeting. It apologised to Mrs X it had not done so;
• following the review meeting, it had decided to amend Y’s EHC Plan. It said it was in the process of drafting a Plan and asked Mrs X for her preferred choices of secondary school. It apologised to Mrs X it had not issued a final amended EHC Plan within statutory timescales; and
• its communication with Mrs X had been poor. It explained it had been making changes to its service and in doing so, it had experienced delays with its communication.
25. Immediately after, Mrs X asked the Council to investigate her complaint further. She said:
• the Council did not have a proper understanding of Y’s needs as it did not attend the review meeting and was therefore concerned with the Council’s intentions of amending the EHC Plan. Mrs X asked the Council to reassess Y’s needs; and
• she did not have much information about secondary school placements for Y and said a mainstream school would unlikely be suitable.
26. Shortly after in October 2024, the Council issued a final amended EHC Plan which included specialist provision such as:
• Y to have a key worker to support them in school;
• collaborative learning in small groups;
• activities aimed at developing Y’s communication and interaction skills; and
• support to develop Y’s ability to identify and describe their emotions.
27. The Council had named Y’s current primary school as a placement. Mrs X was unhappy with the EHC Plan and said the Council had issued a draft amended EHC Plan and a final amended EHC Plan on the same day and as a result, she did not have the opportunity to comment on the Plan before the Council had finalised it. She said the Council had made very few changes to the Plan and it was therefore based on outdated information. Mrs X did not appeal to Tribunal because she said the Council told her it was just uploading the EHC Plan onto its hub.
28. Between October and December 2024, Mrs X asked the Council for an update on her complaint. During this time, Mrs X also told the Council she wanted Y to attend a specialist school and gave the Council her preferred choices of secondary school for Y. Later in January 2025, the Council told Mrs X it did not agree that Y required a specialist school and instead, Y would be best placed in a mainstream school with a specialist learning environment.
29. In mid-January 2025, Mrs X contacted the Council again and said:
• she had made the Council aware in May 2024 that Y was not attending school yet the Council had failed to arrange alternative provision;
• the Council had delayed her right of appeal to Tribunal following the review in July 2024; and
• the Council had failed to review and amend the EHC Plan for Y’s transfer year. She said Y was due to start secondary school in September 2025 and the Council had until February 2025 to issue a final EHC Plan naming a secondary placement. Mrs X added the Council’s decision not to provide Y with a specialist school was based on inaccurate information. She told the Council she had previously requested it to complete a reassessment of Y’s needs.
30. Mrs X said towards the end of January 2025, the Council responded to her request for a reassessment. The Council told Mrs X that a full reassessment would take approximately 20 weeks. The Council and Mrs X therefore agreed for solely an educational psychologist to reassess Y’s needs as this process would not take as long as a complete reassessment.
31. In mid-February 2025, the Council responded to Mrs X’s complaint and said it:
• was in the process of referring Y for alternative provision;
• had issued Y’s EHC Plan in mid-October 2024 following an early review meeting. It apologised to Mrs X for any delay; and
• was currently in the process of reassessing Y’s needs.
32. An educational psychologist reassessed Y’s needs in February 2025. In mid-March 2025, the Council issued a draft amended EHC Plan followed by a final amended EHC Plan. In April 2025, it issued a further final amended EHC Plan. The Council did not complete a transitional review prior to issuing the final EHC Plan. Mrs X then appealed to Tribunal as the Council had not named a placement in the Plan.
33. In response to my enquiries, the Council said:
• it had not informed Mrs X of its decision to amend the EHC Plan before its complaint response to her in October 2024;
• it became aware in mid-July 2024, following the review meeting, that Y was not attending school. The Council recognised it did not monitor the matter between July 2024 and March 2025;
• Y did not receive any educational provision between November 2024 and March 2025. The Council said it started to fund alternative provision from March 2025. It said it should have taken action sooner to provide Y with alternative provision. However, whilst Y remained on roll at the School, the School remained responsible for securing the provision outlined in their EHC Plan;
• following the reassessment of Y’s needs in February 2025, it became clear to the Council Y’s needs had significantly changed since their last assessment; and
• any delays were caused by the Council carrying out significant changes to its SEND services to improve the service such as recruitment, implementing new IT systems and processes. The Council experienced delays due to staff vacancies, officers changing teams during a restructure and case handovers across new teams. The Council added it delayed responding to Mrs X’s complaint at stage two as it had received a lot of complaints at the same time.

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Findings

Review of Y’s EHC Plan

34. 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.
35. 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.
36. A parent or young person can request an early review of an EHC Plan if they believe there is an urgent need to amend the Plan. It would then be for the Council to decide if an earlier review should be held.
37. Mrs X asked the Council for an early review meeting of Y’s EHC Plan as she believed the current EHC Plan was no longer suitable for Y.
38. The Council agreed to the review and subsequently, the review was carried out in early July 2024. As the Council later decided to amend the EHC Plan, it should have sent Mrs X its decision notice and its proposed amendments within four weeks of the meeting. Instead, the Council told Mrs X in its complaint response to her in mid-October 2024 that it had decided to amend the EHC Plan. The Council did not issue a draft amended EHC Plan with the amendments it had proposed until mid-October 2024 either. The Council was at fault. It delayed issuing a notice to amend with a draft amended EHC Plan by approximately 11 weeks.
39. Within 12 weeks of the July 2024 review meeting, the Council should have issued a final amended EHC Plan. The Council delayed issuing the final amended EHC Plan by approximately three weeks. This was fault.
40. In addition, the Council issued the draft amended and final amended EHC Plan on the same day. The Council denied Mrs X the opportunity to comment on the draft EHC Plan before it finalised it. This was not in line with the Code or Regulations, and the Council was at fault. It caused Mrs X distress and frustration.

The period Y was out of school

41. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them by the council.
42. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
43. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
44. The statutory guidance explains there will be a wide range of circumstances where a child has a health need but will receive suitable education that meets their needs without the intervention of the council. For example, where a child can still attend school with some support, or whether the school has made arrangements to deliver suitable education outside of the school for the child. The guidance would not expect the council to become involved in such arrangements unless it has reason to think that the education being provided to the child is not suitable.
45. Y stopped attending school in March 2024. The Council said it became aware of Y not attending school in mid-July 2024, towards the end of the school year. There is no supporting evidence the Council was aware sooner as Mrs X’s communication in May 2024 did not say Y was no longer attending school but was struggling to attend. Therefore, I cannot be critical of the Council between the period of March and July 2024.
46. Between September and October 2024, Y attended an online school commissioned by the School using its powers to arrange alternative provision. There was no need for the Council to intervene at that stage. However, Y stopped attending the online school in October 2024.
47. Between November 2024 and March 2025, Y received no specialist provision as outlined in their EHC Plan or education. The Council has accepted it should have done more to ensure Y was receiving an education and their specialist provision during this period. The Council was at fault. It caused Mrs X distress and frustration. It also meant Y missed out on education and special educational provision for approximately a term and a half.

Mrs X’s request for a reassessment of Y’s needs

48. The Council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The Council may also decide to complete a reassessment if it thinks one is necessary. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary. The Council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request.
49. In mid-October 2024, Mrs X asked the Council to complete a reassessment of Y's needs. In line with statutory timescales, the Council should have told Mrs X its decision to complete or refuse a reassessment of Y’s needs within 15 days. The Council responded to Mrs X’s request in late January 2025 when it agreed to an updated EP report. This was fault.
50. The Council’s delay responding to Mrs X’s request caused a delay with issuing a final amended EHC Plan. It caused Mrs X distress, frustration and uncertainty as had the Council responded to her request sooner, it could have issued a final EHC Plan sooner. It also delayed Mrs X’s right of appeal which she later went on to use.

Y’s review and EHC Plan for key phase transfer year

51. The Council must review and amend an EHC Plan within 12 months of a transfer between phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer from primary school to secondary school aged education. (Regulation 18, Special Educational Needs and Disability Regulations 2014)
52. The Council led Mrs X to believe that the July 2024 meeting was a transitional review, for Y moving from primary to secondary school. In July 2024, it was more than 12 months before Y would move to secondary school, therefore it could not have been a phase transfer meeting. The Council was at fault for giving Mrs X incorrect information and appears to have misunderstood Regulation 18 or was unaware of Y’s age.
53. Following the EP assessment in February 2025, the Council issued a draft amended EHC Plan followed by a final amended EHC Plan in March 2025 in preparation for Y’s transfer to secondary school. The Council should have issued the final amended EHC Plan by 15 February 2025 as Y was to transfer to secondary school in September 2025. The Council was at fault as it delayed issuing the final EHC Plan. This added to the delays to her right of appeal.
54. Furthermore, there is no evidence the Council completed a transitional review of Y’s EHC Plan within 12 months of Y moving to secondary school (so from September 2024) before it issued the final EHC Plan in March 2025. The Council was at fault. It caused Mrs X distress, frustration and confusion.

The Council’s complaint responses to Mrs X

55. The Council has a two-stage complaint procedure. At both stages, it aims to respond to a complainant within a maximum timeframe of 20 working days. If it experiences any delays with responding the complainant, it aims to provide them with regular updates.
56. The evidence shows the Council delayed responding to Mrs X’s complaint at both stages and by approximately three months at stage two, despite Mrs X asking the Council several times for an update. The Council was at fault. It caused Mrs X further distress and frustration.

Service improvements

57. We have made recent decisions about this Council and made service improvement recommendations in relation to:
• delays in reviewing EHC Plans including issuing decision notices and EHC Plans;
• failing to consider any concerns raised related to a request of an early review of an EHC Plan;
• failing to consider whether it owes a Section 19 duty where children are out of school because of illness or other reasons; and
• delays with responding to complaints.
58. I have therefore not made further service improvements in relation to the above issues. We will continue to monitor the Council through our casework.

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Agreed actions

59. Within one month of the final decision, the Council will:
1. provide Mrs X with a written apology for the distress, frustration, confusion and uncertainty the Council caused her by the faults identified between 34 and 58 of this decision. 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; and
2. pay Mrs X £1350. This is a symbolic payment for the impact of the education Y did not receive between November 2024 and March 2025 and for the injustice caused to Mrs X.
60. Within one month of the final decision, the Council will also take action to ensure SEND staff, through training, guidance or quality monitoring:
1. know that they must complete a phase transfer review when a child with an EHC Plan is in the key transfer year and that the review must be within 12 months of the child moving to the next education phase and not longer, and explain how they can find this information; and
2. adhere to statutory timescales when someone requests a reassessment of an EHC Plan as it must respond to requests within 15 calendar days.
61. The Council will provide us with evidence it has complied with the above actions.

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Final Decision

62. I have now completed my investigation. The Council was at fault. It has agreed to the recommendations to remedy the injustice caused and prevent a recurrence of fault.

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Investigator's decision on behalf of the Ombudsman