Summary: Mrs X complained the Council failed and delayed issuing her child, Y’s final Education, Health and Care (EHC) Plans following annual reviews in 2023 and 2024. She also complained the failures caused Y to miss provision that could have supported their progression. We found delays in the EHC Plan review process; this is fault resulting in delayed appeal rights and avoidable frustration, distress, uncertainty and educational opportunity. The Council has agreed to apologise and make a symbolic payment to remedy the injustice.

The complaint

1. Mrs X complained about delays in the Education, Health, and Care (EHC)Plan process for her child, Y. She said the Council:
• failed to issue a final amended EHC Plan after an annual review in January 2023;
• delayed issuing a final EHC Plan after an annual review in January 2024; and
• did not complete Occupational Therapy (OT) and Speech and Language Therapy (SLT) assessments as agreed in the annual review in January 2024.
2. Mrs X says the matter has caused her frustration, distress, time and trouble. She also says the faults have caused Y to lose out on provision that could have supported their progression.

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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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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)
7. 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
8. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)

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What I have and have not investigated

10. I have investigated Mrs X’s complaint about the Council’s handling of the EHC Plan process for Y. However, parts of her complaint are late as it relates to events which occurred more than 12 months before she brought it to our attention. I have found it appropriate to exercise my discretion to consider Mrs X’s complaint from March 2023. This is because she continued to engage with the Council and relied on its assurances to progress Y’s case.
11. I have not investigated matters which have happened since Mrs X complained to the Ombudsman in January 2025. This is because these are new and the Council has not had the opportunity to respond through its complaints process.

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How I considered this complaint

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

EHC Plans

Reviews

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. 
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. 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).
18. 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.
19. The Council must send the draft EHC plan to the child’s parent together with notification and give them at least 15 days to give views and make representations on the content.

What happened

20. Mrs X’s child, Y, has special educational needs which is set out in their EHC Plan.
21. In January 2023 an annual review of Y’s EHC Plan took place. The Council agreed to amend the Plan in March 2023.
22. Ms X asked the Council for an update on Y’s amended EHC Plan in May 2023, which was a few days before a final amended Plan should have been issued.
23. The Council’s response said the delay was due to staff shortages. It said Y’s school was meeting Y’s special educational needs as it had a copy of Y’s EHC Plan and the annual review report.
24. Mrs X complained to the Council again in November 2023 and asked for a review. She said she had still not received a draft EHC Plan after the decision to amend notice in March 2023.
25. A draft EHC Plan was issued in December 2023, but the Council agreed a new annual review was needed for Y. No final amended EHC Plan was therefore issued for the January 2023 annual review. The Council apologised for the delay.
26. Mrs X said that an annual review was due to be completed in January 2024, and she was reassured by the Council that due process would be followed. She therefore did not make a complaint to the Ombudsman at this time.

Annual Review: January 2024

27. A new annual review meeting of Y’s EHC plan was held in January 2024. The Council said its records show that amendments were started in July 2024. It said it has no record of any formal notifications or decisions to amend sent to Mrs X.
28. Mrs X said that within the review meeting in January 2024, the Council agreed Y required Occupational Therapy (OT) and Speech and Language (SLT) assessments as part of the amendments. The Council advised that it does not have any records to show this.
29. It said drafts were shared with Mrs X in July and August 2024. The Council said it has no record of why multiple copies were produced.
30. Mrs X received a draft amended EHC Plan in July 2024. She asked the Council to delay finalising on the 15th day because she had not received a copy of the Educational Psychologist report to review. She asked for a meeting on or after the 15th day.
31. The Council issued a final amended EHC Plan for Y in September 2024. However, it was issued with draft comments.
32. Mrs X complained to the Council about its ongoing delays and its failure to arrange the agreed OT and SLT assessment before issuing the September 2024 final amended EHC Plan.
33. In December 2024 the Council re-issued Y’s final amended EHC Plan without draft amendments. This also set out her appeal rights to the SEND Tribunal.
34. Mrs X complained to the Council about the ongoing delays and lack of agreed assessment in November 2024.
35. The Council upheld Mrs X’s complaint. It apologised for the delays but said that ‘similar support’ had been in place for Y since year 3. It said it had spoken with Y’s school and found Y had received additional teacher input, had verbal and visual support and received the provision set out in the draft EHC Plan except numeracy intervention. It said that Y’s school did not offer this, but that Y had been attending smaller maths classes with additional support instead.
36. Mrs X remained unhappy with the Council’s response and asked the Ombudsman to investigate the matter.

Findings

Annual Review 2023

37. I find the Council at fault for causing unnecessary delays in the EHC Plan annual review process for Y in 2023. This is because:
• after its review and a decision to amend, the process should have been completed within 12 weeks, so by the end of April 2023. A draft amended plan was first issued in December 2023; and
• no final plan was issued as the Council agreed it was necessary to start a new review for Y as their needs had changed.
38. This delay denied Mrs X her right of appeal and caused avoidable distress and uncertainty. The Council did not comply with the statutory timescales for the EHC Plan process.
39. I consider it reasonable that Mrs X did not bring her complaint to the Ombudsman at the time, she was considerate of the proximity of the next annual review, was willing to work with the Council to ensure Y’s needs were addressed and felt reassured the Council would show due diligence in its duties after the next annual review.
40. The Council made a decision to amend in March 2023 after annual review. Therefore, whilst I cannot say what provision Y missed out on, I can say that up to December 2023 when the draft amended plan was issued, there was a loss of opportunity for Y to receive provision and support which was more suitable to their needs. This caused some injustice to Y.
41. I find the Council should make symbolic payment to recognise the frustration, distress and uncertainty Mrs X has experienced caused by significant delays in the EHC Plan review process.
42. A symbolic payment should also be paid to Y, to recognise the loss of opportunity in educational provision from the Council’s decision to amend in March 2023 until it provided Y’s school with the draft amended plan in December 2023.

Annual Review 2024

43. I find the Council at fault for continuing to cause unnecessary delays in the annual review process for Y in 2024. This is because:
• the Council again failed to complete the annual review within statutory time limits. The Council should have decided whether to maintain, amend or cease Y’s plan within four weeks of the review meeting, so by the end of April 2024. Mrs X did not receive a decision;
• the Council has no record of formal notification; however, amendments to Y’s Plan started in July 2024;
• a final amended plan was not issued until September 2024, a delay of over 4 months; and
• the September 2024 Plan was re-issued in December 2024 as it wrongly had draft comments. This meant a total delay of over seven months after review.
44. I have considered the fact the Mrs X asked for the Council to delay finalising Y’s EHC Plan after she received the draft. The process was already significantly delayed, and she did so to review all the information to enable her to make comment, this is reasonable. Her actions did not cause undue delay.
45. This delay frustrated Mrs X’s right of appeal. The Council did not comply with the statutory EHC Plan process. The Council’s failure to meet the required timeframes is fault.
46. Mrs X trusted the Council would follow due process after Y’s EHC Plan annual review in January 2024. Its delay in issuing an amended final plan after review caused Mrs X further frustration, distress and uncertainty.

Occupational therapy and speech and language therapy assessments

47. Mrs X said OT and SLT assessments were agreed during Y’s annual review in January 2024. In making my decision I am conscious that:
• there are no records of formal notification or decisions to amend Y’s EHC Plan, however amendments were undertaken; and
• OT and SLT assessments have been commissioned for Y in February 2025. Whilst after the date Mrs X came to the Ombudsman, I have seen evidence Mrs X asked for updates about the assessments from the Council prior to this date and before the date of any expected annual review in January 2025.
48. I therefore determine, on a balance of probabilities, OT and SLT assessments were likely agreed as part of Y’s annual review in January 2024. I find a symbolic payment is appropriate to acknowledge the injustice she experienced.
49. There was no statutory requirement for these assessments to be produced before the amended plan was issued. Further I cannot say whether if they had been, they would have changed the provision set out in Y’s EHC Plan. However, having likely been agreed at the annual review in January 2024, I have not seen any reason why they could not be completed within the eight months before the amended final plan was issued in September 2024. This further added to the uncertainty and frustration Mrs X experienced.
50. OT and SLT assessments were not completed before Y’s EHC Plan was issued, therefore I cannot say what, if any, special education Y has missed out on. Any dispute about the content of the EHC Plan issued in December 2024, is for the SEND Tribunal.
51. The Council has already agreed to undertake work on improving the EHC Plan review process after the Ombudsman upheld other cases. For this reason, I have not made further service improvement recommendations here as we will monitor the impact of these changes through our complaints.

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Action

52. To remedy the injustice the Council caused to Mrs X due to faults identified in the EHC Plan annual review process, within one month of the final decision the Council will:
• Apologise in writing to Mrs X to acknowledge the injustice caused by the faults identified

We publish guidance on remedies which sets out our expectations for how organisation should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

• Pay Mrs X £750 to acknowledge the uncertainty, frustration, and impact on her appeal rights she experienced as a result of the Council’s failure to adhere to the Education, Health and Care Plan statutory process and timescales in 2023 and 2024.
• Make a further payment of £350 to Mrs X to acknowledge Y’s loss of opportunity to receive more suitable provision and support in school as a result of the Council’s failure to adhere to statutory process and timescales.
2. The Council will provide us with evidence it has complied with the above actions.

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Decision

54. I have completed the investigation with a finding of fault causing injustice by delays in the EHC Plan annual review process.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman