Summary: Ms X complained the Council delayed issuing an Education, Health and Care Plan for her son following an annual review. She also complained the Council failed to ensure her son received the required special educational provision while he was not attending school. Ms X says the Council’s actions caused considerable distress and anxiety to her and her son. We found the Council to be at fault. The Council has agreed to provide an apology and a financial remedy.

The complaint

1. Ms X complained the Council delayed issuing an Education, Health and Care Plan for her son following an annual review. She also complained the Council failed to ensure her son received the special educational provision set out in his Education, Health and Care Plan while he was not attending school. Ms X says the Council’s actions caused considerable avoidable distress and anxiety to her and her son, and meant her son missed out on education and an opportunity to attend a preferred education setting. She would like the Council to provide an apology and a financial remedy, and to improve its communication with parents and carers.

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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 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)
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. 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)

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What I have and have not investigated

5. I have investigated the complaint for the period July 2023 to January 2025 (when Ms X brought her complaint to the Ombudsman).
6. I have exercised discretion to investigate this complaint back to July 2023 as this is when the Council carried out the annual review of the Education, Health and Care Plan. I have not investigated the period prior to July 2023 because there are no good reasons to exercise discretion to investigate beyond this date.

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How I considered this complaint

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

Education, Health and Care Plans

10. A child or young person with special educational needs (SEN) 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 has a duty to make sure the child or young person receives the special educational provision set out in 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)  
12. 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 of Practice, paragraph 9.176) 

Background

13. This chronology includes key events in this case and does not cover everything that happened.
14. The Council issued Ms X’s son, Z, with an EHC Plan in December 2021. At that time, Z attended an independent specialist education setting, School A.
15. School A held an annual review of Z’s EHC Plan in November 2022.
16. In March 2023, Z stopped attending School A. Ms X says this was because of problems Z experienced at the school. Ms X requested a change of educational setting and asked the Council to name a different school, School B, in Z’s EHC Plan.

What happened

17. School A held an annual review of Z’s EHC Plan on 21 July 2023. School A acknowledged that Z’s placement at the school had broken down in March 2023, and Z no longer attended. However, it recorded that Z continued to attend weekly sessions at a local therapy service, Organisation C. As part of the review, Ms X requested a placement for Z at School B.
18. Ms X contacted the Council in August 2023 to chase progress regarding the EHC Plan review.
19. The Council issued its annual review decision to Ms X on 29 September 2023, stating it had decided to amend Z’s EHC Plan. At about the same time, the Council says it sent consultation letters to School A and School B, and another school, School D.
20. Ms X contacted the Council in November 2023 and in January 2024 to chase progress following the EHC Plan review.

Ms X’s complaint

21. Ms X complained to the Council on 22 January 2024. She said Z had not attended School A since March 2023 and the Council had not provided any education or alternative provision. Ms X also complained the Council had not provided a final EHC Plan following the annual reviews in November 2022 and July 2023.
22. The Council responded on 13 February 2024. It acknowledged it had not met the statutory timeframes for completing the EHC Plan review and said:
• Although Z was not attending School A, he remained on its school roll
• School A had continued to offer provision to Z since March 2023, but he had not engaged with this
• The Council understood Z wished to explore a possible career in catering. It said it had not yet finalised the EHC Plan because it was still liaising with School D about the courses it could offer
23. The Council apologised for the delays following the annual review and said it would issue the final EHC Plan by 1 March 2024.
24. Later that same month, the Council held a meeting to discuss a way forward regarding Z’s EHC Plan. The Council acknowledged that School B had offered Z a placement; however, it noted that the Council had declined this because it considered Z could access a catering pathway via a local college instead. The Council decided to name School D as the educational setting for Z.
25. About this time, Ms X escalated her complaint to stage two of the Council’s complaint procedure. She said the delay in issuing the final EHC Plan was unacceptable and that it stopped Z from accessing education and the Tribunal services. Ms X said the Council had decided to name School D as the educational setting from September 2024 but had not offered anything in the interim.
26. The Council provided its stage two complaint response on 10 April 2024. It said it had provided funding to School A and believed the school was offering suitable provision after March 2023. The Council acknowledged however, it should have regularly checked with School A regarding the provision made to Z and should have been more robust in questioning the school about the provision in place. The Council acknowledged it had not issued the final EHC Plan following the review in July 2023 and apologised for the delay. It also acknowledged Ms X’s wish for Z to attend School B; however, it said there was no evidence to conclude Z could not attend a mainstream college. The Council said it would issue the final EHC Plan within three weeks, and Ms X could then appeal to the Tribunal if she disagreed with the named setting. The Council confirmed it would continue to fund Z’s therapy sessions at Organisation C.
27. The Council says it issued the final EHC Plan on 10 June 2024. The plan named School D as the educational setting from September 2024.
28. Ms X says she did not receive the EHC Plan at this time.

What happened next

29. Z’s placement at School D started in September 2024.
30. The Council held an annual review of Z’s EHC Plan on 11 September 2024. On 2 October 2024, it notified Ms X of its decision to maintain the EHC Plan. The Council also agreed to continue funding for Z’s therapy sessions at Organisation C until June 2025.
31. Ms X brought her complaint about Z’s EHC Plan to the Ombudsman in January 2025.
32. Ms X says she did not receive a copy of the final EHC Plan dated 10 June 2024 until February 2025.

Analysis – Ms X’s complaint about delays following the annual review

33. The annual review of Z’s EHC Plan took place on 21 July 2023. Councils must decide whether to keep the plan as it is, amend the plan or discontinue the plan, and must notify the child’s parent or the young person, within four weeks of the review meeting. In this case, the Council did not issue its decision until 27 September 2023. This is greater than four weeks. This delay is fault.
34. Councils must issue any final amended EHC Plan within eight weeks of issuing an amendment notice, (which as previously stated, should be issued within four weeks of the annual review). Therefore, a final EHC Plan must be issued within 12 weeks of the review meeting. The Council issued Z’s final EHC Plan on 10 June 2024. This timeframe is not in accordance with the statutory guidance and is a delay of eight months. This delay is fault.
35. A further review of Z’s EHC Plan took place on 11 September 2024. The SEN Code of Practice states that EHC Plans must be reviewed by the local authority as a minimum every 12 months. The review held on 11 September 2024 was more than 12 months after the previous review (21 July 2023). This is not in accordance with the Code of Practice, and is therefore fault.
36. Ms X says she did not receive the final EHC Plan dated 10 June 2024 until February 2025 because the Council posted it to an incorrect address. The Council says it sent Ms X a copy of the final EHC Plan electronically on 10 June 2024; it says its email stated the Council would also provide a paper copy by post.
37. The Council acknowledges however the address on the EHC Plan was incorrect, and it did not post a paper copy at that time. Whilst I acknowledge the Council says it provided a copy of the plan to Ms X by email, the Council’s records also show it was aware that Ms X did not have access to emails. The failure to provide Ms X with a copy of the final EHC Plan in June 2024 is fault, causing additional delay.
38. The delays identified caused avoidable frustration and distress to Ms X and to Z. The evidence shows Ms X requested updates from the Council several times, and that the Council said it would issue the final EHC Plan initially by 1 March 2024, and then by 1 May 2024; the Council failed to meet both these deadlines. Ms X says the Council’s actions negatively impacted both hers, and Z’s mental health.
39. It is positive the Council itself identified delays in the EHC Plan review process. It acknowledged this in its complaint response and apologised to Ms X. Whilst I acknowledge the Council’s apology, this does not adequately address the injustice identified.
40. Ms X’s complaint that the Council failed to ensure Z received the special educational provision set out in his EHC Plan while he was not attending school
41. 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) 
42. 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 Plan review process, and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 
43. The evidence shows the Council was aware from at least July 2023 that Z was not attending School A from March 2023. As a result, we would expect the Council to have checked what provision was made to Z as part of the review process, and because of the concerns raised by Ms X. I have seen no evidence the Council took this action. Indeed, the Council’s complaint response dated 10 April 2024 acknowledges it should have been more robust in questioning School A about what provision was in place.
44. As a result, the evidence indicates the Council did not maintain appropriate oversight of the provision made to Z, and it has not demonstrated how it considered its duty under Section 42 of the Children and Families Act. This is fault causing uncertainty as to whether the Council adequately considered its Section 42 duties, and as to what SEN provision was available to Z while he remained on the school roll.
45. The Council says its special educational needs and disabilities (SEND) services recently underwent a significant restructure, with the new structures being put in place in April 2025. As a result, I have not recommended further service improvements regarding the Council’s review of its SEND services, as it already has an active action plan in place regarding this matter.

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Action

46. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Ms X and to Z. 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;
2. Make a symbolic payment of £500 to Ms X in recognition of the uncertainty and distress caused by the fault identified;
3. Remind staff to adhere to the statutory timeframes regarding reviews of Education, Health and Care Plans, and
4. Remind staff of the Council’s duties under Section 42 of the Children and Families Act, particularly when children or young people are not attending school.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I have found fault causing injustice. The Council has agreed to take the above actions to remedy the injustice identified and I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman