Summary: Ms X complained the Council failed to comply with statutory timescales for amending and finalising her son Y’s Education, Health and Care (EHC) Plan following an annual review. It also delayed providing additional funding to his school, which had been agreed to support his continued placement. These faults caused uncertainty and missed opportunities for securing alternative provision or placement sooner, amounting to injustice. However, there is limited evidence the missed funding directly deprived Y of support, as the school covered the shortfall. The Council has agreed to pay a financial remedy and apologise for the injustice caused.

The complaint

1. Ms X complains on behalf of her son, Y, who has an Education, Health and Care Plan (EHC Plan). She says the Council failed to act within statutory timescales following his annual review in July 2024. The Council delayed issuing an amended final EHC Plan and failed to properly consider alternative provision or placements. Ms X says there was a significant delay in allocating agreed additional funding to his school, impacting the support he received. She says the Council did not communicate adequately with the school or with her. She believes this caused uncertainty, distress, and a delay in Y receiving the support he needed.

Back to top

The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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(i), 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).

Back to top

What I have and have not investigated

7. Our investigation is limited from January 2024 (12 months before Ms X complained to us) to February 2025 when the EHC Plan was finalised. Matters before January 2024 are late, and I see no good reason why Miss X could not have come to us sooner (see paragraph 3). We cannot investigate matters after February 2025 as the Council may not have had an opportunity to address the concerns through its complaint procedure (see paragraph 4).

Back to top

How I considered this complaint

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

Back to top

What I found

Law and guidance

EHC Plan and Reviews

10. 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. 
11. 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) 
12. 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.
13. 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;
• amendment to these elements of an EHC Plan

Background

14. Y was in year 4 of primary education at the time of complaint and has an EHC Plan. He has struggled with decreasing attendance.

What happened

15. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.
16. An annual review was held on 1 July 2024. The school raised concerns about not being able to meet Y’s needs. Ms X also highlighted she would like specialist provision to be sought for Y. The EHC coordinator accepted that Y’s needs were not being met properly in his current school. They agreed to work with Ms X to find a new school for Y by January 2025.
17. Ms X says the EHC coordinator failed to communicate and progress the move to another school, despite her chasing for updates. She then complained to the Council in October 2024 about the poor communication, progression and lack of funding by the Council.
18. The Council said in its stage 2 complaints response that Y should remain at his current school. The reason was to maintain consistency and avoid disruption ahead of his transition to secondary school. The Council instead agreed to increase funding to the school to support Y.
19. The Council issued an amended draft EHC Plan in November 2024, but this was not finalised until 20 February 2025. Ms X had no right of appeal until the final EHC Plan was issued.
20. An emergency annual review was held in March 2025 because the school were still not able to meet Y’s needs. The school said Y’s attendance continued to drop and he started to refuse school entirely. The Council agreed in the emergency review that the additional funding had not supported Y to increase attendance, and extra funding was unlikely to have a positive impact. It was agreed Y needs specialist provision with a personalised curriculum, so alternative placements were consulted.
21. Y is now on roll to start at a mainstream school with Additional Resourced Provisions (ARP) from September 2025.

My analysis

Annual review

22. The Council accepted there was a delay in issuing Y’s amended EHC Plan in the stage two response. The Council should have issued it decision to amend by the end of July but did not do so until 5 November 2024.
23. Once the Council decided to amend the EHC Plan it should have issued a final EHC Plan by 23 September 2024. But it did not issue this until 20 February 2025. This was a delay of five months.
24. Ms X chased the Council for updates but often received no response. This caused her distress and frustration. It also delayed Ms X’s appeal rights She would have been able to appeal the contents of the EHC Plan sooner had the Council issued it within the statutory timeframe.
25. This also delayed Y receiving the increased provision set out in his amended EHC Plan. Y should have started to receive 6 hours Occupational Therapy (OT) and more educational provision to support his learning, such as, 1:1 support, assistive technology and a structured programme for maths and literacy.
26. This is fault caused by the delay in the annual review process. The statutory timescales are clear and serve to ensure children receive the support they need without delay. Both Ms X and Y suffered injustice as a result of these delays.

Delay in funding

27. The Council agreed to significantly increase funding to support Y’s current placement. It should have transferred the funding in a timely manner.
28. The Council did not transfer the agreed additional funding to the school until April 2025, despite making the decision in November 2024. This is approximately a five-month delay.
29. The school says in the emergency review report that it was self-funding the additional support in the meantime. Ms X continued to chase the Council for updates on the funding but often received no response. This caused distress and frustration.
30. But there was limited loss of educational provision as a result of the delay. This is because the school was already providing the same level of support it would have if it received the council’s additional funding on time.
31. I have not recommended service improvements on this occasion. We have made a number recommendations to address systemic issues in recent decisions so appropriate action is already being taken.

Back to top

Action

32. Within one month of the final decision, the Council will:
• Apologise to Ms X for the delays and uncertainty caused. 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.
• Pay £100 to acknowledge the distress, time, and trouble caused by failure to respond to communications.
• Pay £1200 for loss of provision between 23 September 2024 and 20 February 2025 and delayed right of appeal.
33. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman