Summary: The Council delayed issuing the decision to maintain the Education, Health and Care (EHC) Plan for Ms X’s child (C). This delayed Ms X’s appeal right to the Special Educational Needs and Disability (SEND) Tribunal and caused her distress. I have recommended a remedy.

The complaint

1. Ms X complained the Council delayed in the Education, Health and Care (EHC) assessment and planning process and did not deliver the special educational needs provision in her child’s (C) EHC Plan. This has affected C academically and emotionally. It also caused Ms X distress. She would like the Council to apologise and offer compensation for lost support.

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The Ombudsman’s role and powers

2. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
4. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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).

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What I have and have not investigated

6. The annual review was due in January 2024 and the Council issued its decision in June 2024. I have investigated the Councils actions during this period.
7. I have not investigated anything that happened after the Council made its decision to maintain the EHC Plan in June 2024. This is because there is a right of appeal against the decision to the Tribunal. The law says we cannot investigate any matter which was connected to a matter which can be appealed to the Tribunal, even if the person does not appeal. Any information provided about this period is for background only.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council 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 before making a final decision.

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What I found

Relevant legislation

The EHC Plan 

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 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)  
12. 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 review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

13. 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) 
14. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents of their right to appeal the decision to the Tribunal.

Appeal rights

15. There is a right of appeal to the Tribunal against a council’s decision not to amend an EHC Plan following a review or reassessment.
16. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
17. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
18. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

What happened

19. I have summarised below the key events; this is not intended to be a detailed account.
20. C has special educational needs. C attended primary School and had an EHC Plan, dated January 2023.
21. The School planned an annual review meeting in January 2024. This did not take place.
22. The School held an annual review meeting in February 2024. The annual review report said C needed extra support in the classroom and increased funding. The summary of the annual review report said C’s special educational needs had significantly changed since the last EHC Plan and recommended it was amended.
23. The Council asked the School for the annual review report in May 2024.
24. The School sent the annual review report to the Council in June 2024.
25. In June 2024, the Council decided not to amend the EHC Plan.
26. In December 2024, the Council decided to maintain C’s funding within band four. This was to remain until the end of the academic year.
27. In April 2025, the Council agreed to increase C’s funding to band eight.

The complaint

28. Ms X complained to the Council in November 2024.
29. The Council responded in December 2024. It partially upheld the complaint. It said there was delay in the annual review process because the School delayed sending the information to the Council after the annual review meeting. It said once it received the information from the School, it issued its decision not to amend the EHC Plan. This gave Ms X the right of appeal to the SEND Tribunal.
30. The Council recognised the School asked for extra funding which it had not addressed. The Council upheld this part of Ms X’s complaint.
31. Ms X complained to us in January 2025. She said the annual review decision was late and her child was without support which was having a negative effect on their education and emotional wellbeing.

Analysis

32. The Council (or the school on its behalf) must review the EHC Plan within 12 months of issuing the original EHC Plan or completing the previous annual review process. C’s original EHC Plan was issued January 2023. The annual review meeting took place in February 2024, over a month late. This is outside the statutory timescales, this was fault.
33. The Council must decide to amend, maintain or discontinue the EHC Plan within four weeks of the annual review meeting. This meeting place in early February 2024. The Council should have decided to amend, maintain or discontinue the EHC Plan in early March 2024. The Council decided not to amend the EHC Plan in late June 2024. The Council failed to meet the statutory timescales.
34. The Council should have completed the full annual review process, and made its decision to amend Y’s EHC Plan, within 12 months of the original EHC Plan. The Council only making this decision in June 2024 caused a delay of around five months, this was fault.
35. The Council explained it delayed issuing the decision because the School had not sent the paperwork following the annual review meeting. The Council can delegate arranging and holding the annual review meeting to schools, but it cannot delegate the responsibility to adhere to the statutory timescales. The Council remains liable for the delay in the annual review process. The Council was at fault.
36. Once the Council issued its decision, this triggered the right of appeal to the Tribunal. The Council’s delay issuing the decision delayed Ms X’s right of appeal. This was her injustice. Ms X did not appeal the decision; this therefore limits the injustice.
37. As Ms X had a right of appeal against the Council's decision to maintain the EHC Plan, I cannot investigate the decision. If Ms X is not satisfied with the decision, she should challenge it through the SEND Tribunal. This also applied to the recommendations in the annual review report to increase the funding. These matters are linked, the only way Ms X can challenge both is an appeal to the Tribunal. This is outside the Ombudsman’s jurisdiction.

Summary of fault causing injustice

38. The Council was at fault for the delay issuing its decision following the annual review. This caused Ms X uncertainty and distress as she did not know what the Council’s decision was going to be and it delayed her right to appeal to the Tribunal. This was her injustice. Ms X did not appeal to the Tribunal, which limits her injustice.
39. If Ms X was not happy with the Council’s decision to maintain the EHC Plan and funding, the correct mechanism was to appeal to the Tribunal. This is outside the Ombudsman’s jurisdiction.

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Action

40. Following a previous Ombudsman decision, the Council has agreed to make service improvements to ensure relevant staff are aware of statutory timescales following annual review meetings. I do not need to make any further service improvements recommendations.
41. Within four weeks of the final decision, the Council should apologise to Ms X and pay her £200 for the distress and uncertainty caused by the delay issuing the decision following the annual review.
42. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman