Summary: Ms X complained about the Council’s handling of her child Y’s Education Health and Care Plan. She complained the Council failed to decide whether to amend the plan before 2024, failed to meet statutory timescales when it decided to amend the plan in 2024, and had poor standards of communication and complaint handling. We cannot investigate the matters before 2024 because they are late, but we find the Council at fault for missing statutory deadlines and for its communication and complaint handling from 2024 onwards. The faults caused Ms X and Y significant distress, uncertainty, frustration and time and trouble. The Council agreed to apologise and make a symbolic payment to remedy the injustice.

The complaint

1. Ms X complains about the Council’s handling of her child Y’s Education, Health and Care (EHC) Plan. In particular she complains the Council:
1. Failed to decide whether to amend the EHC Plan following every annual review that happened before 2024, despite requests to update it.
2. Failed to issue a notice with proposed amendments and an amended final EHC Plan in line with the statutory timescales following the annual review in 2024.
3. Had poor standards of communication when it ignored her repeated requests for updates and information.
4. Had poor complaint handling when it accepted fault in complaint responses, yet failed to produce a final amended EHC Plan despite promising to do so.
2. Ms X says the Council’s failings have caused her significant stress which has impacted her health and taken away time that she should have spent caring for Y. She also says the failings have deprived Y’s school of some of the funding it needs to provide Y the education she is entitled to.

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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. 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)
5. 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)
6. 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.
7. 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)
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. Ms X complained to us in January 2025. I have investigated the elements of her complaint listed under b), c) and d) above.
10. I have not investigated the element of her complaint listed under a) above. That element happened more than 12 months before Ms X complained to us and is therefore late. I have decided there is not a good reason why Ms X did not complain about that element sooner. Therefore I cannot investigate it for the reasons laid out in paragraph 4.

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How I considered this complaint

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

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What I found

Law and Guidance

EHC Plans

13. 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

14. 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)
15. 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.

Appeal rights

16. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• 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;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

What happened

17. This is a summary of the key events. It is not a complete chronology of everything that happened. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
18. Y has disabilities and special educational needs. Y has had an EHC Plan for several years. Y’s school relies on additional funding from the Council to deliver the special educational provision and care Y is entitled to. The Council considers requests for increases in funding as part of its EHC Plan review and amendment processes.
19. In April 2024 Y’s school organised an annual review of the EHC Plan. The review report recommended the Council amend Y’s EHC Plan. The school recorded its opinion that the funding needed to be increased to meet Y’s needs.
20. At the end of April the Council wrote a letter to Ms X and the school. It said it had considered the review report and would amend Y’s EHC Plan. It said a notice providing details of the proposed amendments would be issued to Ms X in due course. It also said it would consider the request for an increase in funding while updating the plan.
21. The statutory deadline for sending the notice and proposed amendments to Ms X passed in March. The final deadline for sending an amended final EHC Plan passed in July. The Council did not send those documents to Ms X.
22. In September Ms X formally complained to the Council. It was a stage one complaint. She complained it had failed in its duty to provide the notice and proposed amendments to Y’s EHC Plan. She explained the Council’s failure frustrated her right of appeal to the Tribunal and was causing injustice to Y. She highlighted the funding shortfall and lack of contact from the Council.
23. Ms X and the Council had some contact. They exchanged information about potential changes to Y’s EHC Plan. The Council did not issue the notice with its proposed amendments, or a final amended EHC Plan. Ms X said the Council failed to respond to many of her attempts to contact it.
24. In October the Council responded to Ms X’s stage one complaint. The Council apologised for delays and poor communication. It stated it had amended Y’s EHC Plan and had sent a draft copy to Ms X for comments. It did not clarify whether it had sent the notice and its proposed amendments.
25. Ms X promptly escalated her complaint to stage two of the complaint procedure. She said she had had limited contact with the Council about draft changes, but she had not received a final amended EHC Plan. She complained of the lack of responses from the Council when she had tried to contact it. She also complained the Council’s delays meant it had failed to resolve the school’s request for additional funding for Y.
26. In November and December the Council and Ms X emailed one another about a draft plan. The Council initially said it would send a draft plan in a few days. It failed to send it so Ms X chased it up. In mid-December the Council replied. It apologised for the delay. It did not clarify whether the draft plan included its proposed amendments that should have been included with the notice.
27. The Council responded to Ms X’s stage two complaint at the beginning of January 2025. It apologised for the lack of communication and responses. It stated it understood the urgency of updating Y’s EHC Plan. It said it would send an updated EHC Plan to Ms X within two weeks.
28. The Council did not send Ms X the updated EHC Plan despite undertaking to do so in its stage two complaint response.
29. Ms X complained to the Ombudsman at the end of January. The Council had not issued Y’s amended final EHC Plan by the start of the next annual review in April 2025.

Analysis

30. I will address each element of Ms X’s complaint below:

b) Failure to issue a notice with proposed amendments or an amended final EHC Plan in line with the statutory timescales

31. I have considered whether Ms X could have reasonably used a right of appeal to the Tribunal at any stage. The Council’s letter in April 2024 said a notice providing details of the proposed amendments would be issued to Ms X. The Council did not issue that notice or inform Ms X she had a right of appeal. Nor have I seen evidence the Council ever provided Ms X clear details of its proposed amendments. It consistently indicated any potential changes to Y’s EHC Plan were in a draft state. The Council’s delays in amending Y’s plan meant Ms X did not have a right of appeal to the Tribunal during the period I investigated.
32. The Council accepted it was at fault for delays in its handling of the amendments to Y’s EHC Plan in its complaint responses. I agree it was at fault for the reasons explained below.
33. Following the review of Y’s EHC Plan in April 2024, the Council said it proposed to amend it.
34. The Council should have issued a notice including its proposed amendments and other information within four weeks. It should have done this by the middle of May. It failed to do so.
35. It should have then issued a final amended EHC Plan within a further eight weeks. It should have done this by the middle of July. It failed to do so.
36. The Council’s failures to meet these statutory deadlines were fault which caused injustice.
37. I have considered the duration of the injustice. I have taken into account injustice for the eleven month period from May 2024, when the Council missed the first deadline, to April 2025, when Y’s next annual review started. I have not considered ongoing injustice after the annual review in April 2025. This is because delays beyond that date would be linked to new areas of potential fault which I cannot investigate.
38. Ms X suffered significant injustice from May 2024 to April 2025 in the form of undue stress and frustration. This was aggravated by the importance of the EHC review process on the wellbeing and educational development of Y. The injustice included the lost opportunity to appeal to the Tribunal. It also included uncertainty regarding the additional funding and support Y might have benefitted from but did not because of the Council’s failings.
39. The Council’s faults also caused significant injustice to Y for the same period. Y might have missed special educational provision and the allocation of additional funding. I note Y’s school took steps to mitigate the impact of the Council’s delays by supplementing the funding for Y’s needs from its own budget. I have decided I cannot say, even on balance, how the outcome for Y might have been different had the Council met the statutory timescales. For this reason I find the injustice caused to Y was uncertainty.
40. To remedy the injustice I recommend the Council apologises and makes a symbolic payment to acknowledge the distress.

c) Poor standards of communication

41. The Council accepted it was at fault for its standards of communication in its stage one and stage two complaint responses and apologised. I agree it was at fault for the reasons explained below.
42. The evidence shows Ms X regularly contacted the Council. The Council’s responses were delayed and failed to resolve her concerns. This was fault which caused significant injustice to Ms X in the form of uncertainty and frustration.
43. To remedy the injustice I recommend the Council apologises and makes a symbolic payment to acknowledge the distress.

d) Poor complaint handling

44. The Council provided its stage one response within 14 working days of Ms X’s complaint. This was within its Corporate Complaints policy of providing a response within 20 working days. To the Council’s credit, it acknowledged it was at fault, and apologised.
45. However, I note the Council failed to properly identify it had failed to send a notice including the proposed amendments to Ms X. I find the Council missed an opportunity to clearly identify the steps it had failed to take. This was fault in its complaint handling and is likely to have prolonged the substantive issue of the EHC Plan delay.
46. The Council provided its stage two response more than 50 working days after Ms X’s stage two complaint. This was significantly beyond its target 20 days. This was fault. To the Council’s credit, it acknowledged it was at fault for missing the EHC Plan deadlines and its poor communications and apologised again.
47. However, I note the Council said it would send Ms X the delayed EHC Plan within two weeks. The Council subsequently failed to do so. The Council’s failure to ensure this was carried out was further fault in its complaint handling.
48. The Council’s faults in its complaint handling caused Ms X injustice in the form of time and trouble. I believe the time and trouble caused by the faults at stage two of its complaint process were considerably above what it considered usual in bringing complaints. I therefore recommend the Council apologise and make a symbolic payment to Ms X for the time and trouble caused.
49. I have decided not to make service improvement recommendations. This is because the Ombudsman has made recent recommendations that cover the same period and areas of fault identified in this investigation.

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Action

50. Within four weeks of the date of the final decision the Council will:
1. Apologise to Ms X for the injustice caused by its failures to meet the statutory timescales, its communication, and its complaint handling.
2. Make a total symbolic payment of £700 to Ms X for the injustice caused. This is comprised of £500 for the distress caused to her and Y by its failures to meet the statutory EHC review timescales and its poor communication, and £200 for the time and trouble caused by its poor complaint handling.
51. The Council should provide us with evidence it has complied with the above actions.

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Decision

52. I find fault causing injustice for the reasons explained in the analysis section and uphold Ms X’s complaint. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman