Summary: Mrs C complained the Council failed to put in place education provision for her son, delayed issuing a final EHC Plan following a review and failed to carry out an annual review in 2024. There is evidence of delay issuing an EHC Plan following a review, delay carrying out a second annual review and failure to engage with Mrs C about the education available to her son. That delayed Mrs C’s right of appeal and meant her son missed out on special educational needs provision. The remedy the Council has already offered is satisfactory, along with an agreement to issue a final EHC Plan.

The complaint

1. The complainant, Mrs C, complained the Council:
• failed to put in place education provision for her son for the academic year 2023-24;
• delayed issuing a final education, health and care plan (EHC Plan) following a review in September 2023; and
• failed to carry out an annual review in 2024.
2. Mrs C says the Council’s actions meant her son missed out on education and caused her and her family significant distress.

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The Ombudsman’s role and powers

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 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)
5. 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)
6. 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)
7. A child or young person with special educational needs may have an 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 Council can do this.
8. 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

9. I have exercised the Ombudsman’s discretion to investigate what has happened since September 2023. That is because I am satisfied Mrs C did not receive the Council’s final response to her complaint until November 2024.

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How I considered this complaint

10. As part of the investigation, I have:
• considered the complaint and Mrs C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
11. Mrs C and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Special education needs code of practice (code of practice)

12. EHC Plans should be used to actively monitor children and young people’s progress towards their outcomes and longer term aspirations. They must be reviewed by the local authority as a minimum every 12 months.
13. The first review must be held within 12 months of the date when the EHC Plan was issued, and then within 12 months of any previous review, and the local authority’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting (and within 12 months of the date of issue of the EHC Plan or previous review).
14. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHC Plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person and the school or other institution attended.
15. If the plan needs to be amended, the local authority should start the process of amendment without delay.
16. If the local authority decides to continue to make amendments, it must issue the amended EHC Plan as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.

What happened

17. Mrs C’s son has special educational needs (SEN) and an EHC Plan. That EHC Plan names school A in section I. Mrs C previously appealed as she did not consider that school suitable for her son. In August 2022 the tribunal decided school A was suitable.
18. Mrs C presented an earlier complaint to the Ombudsman about the lack of speech and language therapy available at school A. We upheld that complaint as the Council had failed to put in place the speech and language therapy from January 2023 onwards and the Council agreed a financial remedy for that.
19. At the start of the new term in September 2023 Mrs C told school A her son would not attend because of the lack of speech and language therapy experience.
20. The Council held an annual review on 4 October 2023 and issued a draft EHC Plan on 24 November. Mrs C provided comments.
21. Mrs C chased the Council in February 2024 for the final EHC Plan. Mrs C asked the Council to put in place a tutor or home support for the rest of the academic year.
22. The Council issued a further draft amended EHC Plan on 29 February, which Mrs C provided comments on. Mrs C confirmed the schools she wanted the Council to consult in March.
23. The Council consulted various schools from May 2024. None of those schools could provide Mrs C’s son with a place.
24. In June Mrs C asked the Council to consider alternative provision. The Council agreed to that in July 2024. That provision began in September 2024.
25. On 1 August the Council issued an amended final EHC Plan.
26. In November, when responding to a stage two complaint, the Council accepted it had not communicated effectively with Mrs C to support her son’s transition to school A following the tribunal decision. The Council offered Mrs C £6,000 to cover the period January 2023-July 2024. That amount included a symbolic payment of £1,000 to reflect Mrs C’s frustration or anxiety.
27. The Council held an annual review on 25 April 2025. The Council wrote to Mrs C on 30 May to say it intended to amend the EHC Plan. As of the Council’s response to my enquiry it had not yet issued a final EHC Plan.

Analysis

28. Mrs C says the Council failed to put in place alternative provision for her son for the academic year 2023-2024. Mrs C says her son therefore missed out on education until the Council put in place alternative provision in September 2024.
29. The evidence I have seen satisfies me the Council had allocated Mrs C’s son a school which it had named in his EHC Plan. I am also satisfied tribunal considered Mrs C’s appeal about that school placement and considered it suitable. The Council is clear the school placement remained available for Mrs C’s son throughout the 2023-2024 school year and it was Mrs C’s choice not to send her son to the school. The Council is also clear it considered school A a suitable placement, referencing the fact the tribunal also reached that view.
30. I recognise Mrs C did not consider school A suitable. However, the suitability of school A is a matter tribunal decided. I therefore cannot comment on it. I have seen no evidence to suggest School A said it did not consider itself a suitable placement for Mrs C’s son before June 2024. Nor have I seen any evidence to suggest the Council no longer considered school A suitable before then.
31. However, I recognise when the Council issued the revised final EHC Plan following the 2023 review it had decided education other than at school was suitable for Mrs C’s son. The documentary evidence I have seen satisfies me this was a decision reached by the Council in July 2024. However, there is no evidence the Council decided at an earlier stage Mrs C’s son could not access school A. As I cannot comment on the suitability of school A because that is a tribunal decision I cannot say Mrs C’s son missed out on education for the 2023/24 academic year due to fault by the Council as it had made a school placement available.
32. I am satisfied though there were significant delays issuing the final EHC Plan following the review in September 2023. The Council should have completed that process by January 2024 and failed to do so. It is possible if the Council had completed that process earlier it would have decided education other than at school was suitable earlier. I recognise though part of the reason the Council decided education other than at school was suitable was because of the amount of time Mrs C’s son had been out of education. I therefore cannot reach a safe conclusion about whether the Council would have decided education other than at school was suitable had it issued the final EHC Plan earlier.
33. The Council accepts though it should have considered what action to take when Mrs C’s son did not attend school A. There is no evidence the Council considered that point and that is fault. The Council has offered Mrs C a financial remedy of £6,000 to be used for her son’s educational benefit. That remedy exceeds what the Ombudsman would usually recommend. That is the case even if we were to say earlier completion of the final EHC Plan following the September 2023 annual review would have resulted in the Council agreeing education other than at school by the start of 2024. I therefore do not make any recommendation for a financial remedy. Instead, I invite the Council to re-make the offer to Mrs C.
34. Mrs C says the Council delayed issuing a final EHC Plan following the review in September 2023. I set out in paragraphs 14 and 16 the timescales the Council must adhere to when reviewing an EHC Plan. It is clear the Council did not comply with the timescales in this case because it did not issue a final EHC Plan until August 2024. That is a considerable delay and is fault. The delay meant Mrs C’s son potentially missed out on special educational needs provision and Mrs C’s right of appeal was delayed.
35. I am also concerned to note the Council did not carry out the 2024 annual review on time. The code of practice is clear an annual review should take place every 12 months. The Council should therefore have completed an annual review in September 2024. However, the Council did not complete the annual review until April 2025. That again is a considerable delay and is fault. That delay meant Mrs C’s right of appeal has been delayed. As remedy for this part of the complaint I recommended the Council issue a final amended EHC Plan, if it has not already done so. The Council has agreed to my recommendation.
36. I do not recommend any procedural remedies in this case because I am satisfied the Council has in place an accelerated progress plan to deal with the issues in its SEN department. That includes the issues that have affected this complaint. I also do not make any further recommendation for a financial remedy to reflect the impact on Mrs C or her son. That is because I am satisfied the financial remedy the Council has offered exceeds what the Ombudsman would normally recommend.

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Action

37. Within one month of my decision the Council should issue a final EHC Plan, if it has not already done so.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman