Summary: Ms X complained the Council failed to issue a final Education, Health and Care Plan following an annual review in February 2024 and delayed issuing a final EHC Plan after an emergency review in August 2024. The Council did not issue a final EHC Plan until March 2025. The delay frustrated Ms X’s right of appeal and caused distress to the whole family. The Council has accepted fault and agreed to pay a suitable financial remedy.

The complaint

1. Ms X complains the Council failed to issue a final EHC Plan following an annual review in February 2024 and delayed issuing a final EHC Plan after an emergency review in August 2024.
2. Ms X says her son has been without suitable education provision since July 2024 putting pressure on the whole family.

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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. 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)
5. 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

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

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What I found

EHC Plan 

8. 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. 

Reviewing EHC Plans

9. 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) 
10. 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.
11. 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.

Key facts

12. This section sets out the key events in this case and is not intended to be a detailed chronology.
13. The annual review of Ms X’s son, Z’s, EHC Plan was held on 8 February 2024. Ms X says that an online meeting was held in March between herself, the Council and the school. She says that at this meeting the school confirmed it could not meet Z’s needs. The Council says it has no record of this meeting.
14. Ms X contacted the Council on 4 July complaining about the delay in the EHC Plan process. The Council says that it made a “no change” decision on 8 March but it cannot provide any evidence to suggest a letter was sent to Ms X notifying her of this decision.
15. The Council invited the school to attend an early review on 6 September 2024. However, Ms X wrote to the Council on 7 August reminding it of its legal duty to provide a suitable education for her son from the start of the September term. She said the proposed date of 6 September would be too late and provided details of providers she believed were suitable and could provide temporary alternative educational provision.
16. The Council responded to Ms X on 8 August. It apologised to Ms X for failing to process the annual review in February within the statutory timescales. It said that Z would be expected to return to the school where he remained on roll in September but noted the recent information from the school and Ms X’s concerns. It said the request for alternative education provision would need to be approved by panel and its next meeting was 4 September.
17. Ms X responded saying the school had stated it was unable to keep Z safe in school. Ms X again stated that it had a duty to arrange alternative education provision within six days because Z had been excluded for disciplinary reasons.
18. The Council’s response stated that Z had not been issued a permanent exclusion but the school had concerns about supporting his safety and medical needs. The school felt he needed two to one support rather than the current one to one support. The Council indicated that it needed to understand if Z was unfit to attend school and that given the complexity of his needs it would be difficult to source appropriate alternative provision. It would expect the school to maintain the support that had been agreed. It said it did not have evidence that any other setting could provide the additional support Z needed. It said it would refer Ms X’s request for a change of placement to panel.
19. On 16 August the Council wrote to Ms X saying the school had requested additional funding to support Z but had not provided a breakdown of the costs and so it could not be put to panel.
20. An emergency review took place on 28 August. This found the concern was how the school could keep Z safe and what was an appropriate way to intervene if he had a seizure while at school. The decision was to amend the EHC Plan and to get a new educational psychologist report. On 11 September the panel agreed additional funding to the school to enable it to provide more support for Z.
21. The Council responded to Ms X’s stage one complaint on 4 October. It upheld the complaint that both the annual review in February 2024 and the emergency review in August 2024 were not completed within the statutory timescales. It said it would issue a draft EHC Plan by 12 November.
22. It noted an incident where Z had a seizure at school while alone which put him at risk of harm. The Council said that it had agreed extra funding to support Z at school for one term while seeking further educational psychology advice. It said it was unable to reach a finding because it was too soon to determine if this was working for Z. It also partially upheld Ms X’s complaint about poor communication.
23. Ms X did not receive a draft EHC Plan by 12 November as promised in the stage one complaint response. On 28 November the panel agreed to carry out a new educational psychologist assessment of Z’s needs.
24. The Council responded to Ms X’s stage two complaint on 2 December 2024. It found that fault because of delays in the EHC Plan annual review process had frustrated Ms X’s rights of appeal to a SEN tribunal. It offered Ms X a remedy saying this was made in line with our guidance for remedies. The Council originally offered a financial remedy of £600 saying this was to acknowledge six months delay. It later increased this offer to £1,000 to reflect an additional four months delay in issuing the EHC Plan. To date Ms X has not accepted this offer.
25. The Council issued the final EHC Plan on 13 March 2025. This is after Ms X complained to the Ombudsman about the delay. It named the same institution that Z had been attending. Ms X has submitted an appeal in respect of this EHC Plan and has appealed sections B, F and I. Ms X has expressed a preference for another school which had previously indicated it could meet Z’s needs but would not have a place until 2026.

Analysis

26. Ms X complains about delay by the Council in issuing the final EHC Plan following two reviews in 2024. As explained above, within four weeks of the annual review meeting the Council must decide whether to maintain, amend or cease the plan and notify the parent. If the decision is to amend, then it must issue the final amended plan within eight weeks.
27. After the annual review in February 2024, the Council says it made the decision to maintain the EHC Plan. However, it cannot evidence that it notified Ms X of this decision. If it had notified Ms X then her right of appeal would have engaged. But as it did not issue a decision, Ms X was unable to appeal. The failure to notify Ms X within four weeks of the review meeting was fault.
28. The information suggests that Z’s situation changed and there was an incident at the school which raised issues about his safety. As a result it was decided to have an emergency review which took place in August. Again, the Council should have issued a decision on whether to cease, maintain or amend the plan within four weeks of the review meeting. The decision this time was to seek a new assessment by an educational psychologist.
29. Once the Council decided to carry out a reassessment of Z’s needs, then it had 14 weeks to issue the final EHC Plan. The decision to carry out a reassessment was made on 2 September following the emergency review meeting on 28 August. So the final EHC Plan should have been issued by 9 December. However, the Council had capacity issues and so could not allocate an Educational Psychologist. It therefore put the request for a full assessment to panel. In response to my enquiries, the Council explained that the request to panel was prepared but submission to panel delayed and so it did not approve the request until 28 November. Fourteen weeks from that date would be 6 February. The final plan was not issued until five weeks later on 13 March 2025. The delay in taking action after the emergency review meeting is fault which again frustrated Ms X’s right of appeal.
30. While there were two different appeal processes, neither was completed within the statutory timescales. The Council did not issue a final EHC Plan, which then allowed Ms X to use her right of appeal, for more than a year after the initial review meeting. I would normally recommend a distress payment of up to £500 to recognise the injustice caused to Ms X. However, the Council has offered Ms X a payment of £1,000 which is considered acceptable as it is higher than that set out in our Guidance on Remedies document.

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Action

31. To remedy the injustice caused to Ms X and Z as a result of the fault identified above, the Council will, within one month of my final decision make the payment of £1,000 already offered to Ms X.
32. Over the past two years we have issued several decisions finding fault with SEN services provided by the Council and made service improvement recommendations. Since the matters in this complaint took place, the Council has carried out a full review of its SEN service and produced a plan to improve delivery. As significant action has already been taken, there is no need to make further recommendations.
33. The Council should provide us with evidence it has complied with the above action.

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Decision

34. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman