Summary: The Council was at fault as it failed to issue Mr X’s child’s amended Education, Health and Care Plan within statutory timescales following their annual reviews, and its communication with him and handling of his complaint was poor. The Council was not at fault for failing to disclose information about support services and appeal rights. It will apologise to Mr X and pay him £250 to recognise the avoidable frustration and uncertainty caused by its faults.

The complaint

1. Mr X complained the Council:
1. Did not issue his child Y’s final amended Education, Health and Care (EHC) Plan following annual reviews in July and October 2023;
2. Delayed issuing Y’s final amended EHC Plan following an annual review in March and June 2024;
3. Failed to provide information about support services and appeal rights to the Tribunal when it decided to amend Y’s EHC Plan to discourage him and others from appealing; and,
4. Did not communicate with him properly and handled his complaint poorly.
2. Mr X said this caused frustration and impacted his appeal right to the Tribunal.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 the 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)
6. 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

7. 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)
8. Mr X complained to us in February 2025 about matters that occurred in 2023. Mr X had known about the matters in complaint 1a) for more than 12 months and could have complained to us sooner. There are no good reasons to investigate that complaint now. I have investigated matters from March 2024 onwards.

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How I considered this complaint

9. I spoke to Mr X about his complaint and considered evidence he provided.
10. I considered the Council’s response to our initial enquiries as well as relevant law, policy and guidance.
11. Mr 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 law and guidance

Education, Health and Care Plan

12. 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 including Section F which is the special educational provision needed by the child or the young person. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the SEND Tribunal or the council can do this.

Reviewing Education, Health and Care Plans

13. Councils 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 SEND Code paragraph 9.176) 

Amending Education, health and Care Plans

14. 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 SEND 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.
15. When sending the final amended EHC Plan, councils must notify the child’s parent or the young person of their right to appeal and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services. (SEND Code paragraph 9.198)

The Tribunal

16. 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.
17. Parents and young people can appeal to the Tribunal about:

• the description of a child or young person’s SEN specified in an EHC Plan and the educational provision specified; and
• an amendment to these elements of the EHC Plan.

18. Parents have two months to register an appeal with the Tribunal, from the date when the council sent the notice containing a decision which can be appealed. (SEND Code paragraph 11.39)

What happened

19. This section sets out the key events in this case and is not intended to be a detailed chronology.
20. Mr X’s child, Y, is of primary school age. Y has an Education, Health and Care (EHC) Plan.
21. On 5 March 2024 the Council held Y’s annual review meeting.
22. On 31 May 2024 the Council decided to amend Y’s EHC Plan. It issued an amendment notice with proposed changes to Y’s EHC Plan for Mr X’s comments. Mr X responded to this notice with his comments and concerns about the content of Y’s EHC Plan but received no response from the Council.
23. In mid-June 2024, Mr X complained to the Council as it had not issued a final amended EHC Plan for Y. He expressed dissatisfaction with the way the Council had conducted Y’s annual review and amendment process.
24. A day after Mr X complained, the Council held another annual review meeting which various professionals attended.
25. On 5 August 2024 the Council issued another amendment notice proposing changes to Y’s EHC Plan. Mr X immediately raised concerns about the proposed amendments but received no response from the Council. Over the next two months Y’s school and Mr X made multiple attempts to contact the Council regarding the proposed amendments but received no response.
26. On 15 August 2024 the Council responded to Mr X’s complaint. It said it had issued an amendment notice so Mr X had the outcome he wanted. The Council closed Mr X’s complaint without further detail.
27. In October 2024 Mr X raised further complaints with the Council. He complained the Council:

• proposed changes to Y’s EHC Plan in May and August 2024 that were outdated and full of errors; and,
• failed to provide information about advice and support services and appeal rights with the amendment notice, in order to discourage parents from accessing support and appealing to the Tribunal.

28. In Mid-November 2024 the Council issued a stage one complaint response to Mr X’s complaint. It accepted it had failed to complete Y’s annual review within statutory timescales. It explained:

• Following Y’s annual review meeting in June 2024, Y’s caseworker issued the amendment notice, went on leave and then left the Council.
• Communication from Y’s caseworker was poor but it had recently recruited a new experienced officer who would take over Y’s case. It reassured Mr X that Y’s new caseworker would contact him a day later.
• It experienced vacancies and sickness throughout the year and that it had and would continue to appoint new staff to ensure all EHC Plans were reviewed annually.

29. Mr X asked the Council to escalate his complaint a couple of days later. He said Y’s new caseworker had failed to contact him by the specified date. And the Council had not explained reasons for its poor communication before Y’s caseworker got involved.
30. Following a discussion with a support service, Mr X also raised further concerns about the Council’s amendment process of EHC Plans and the potential impact on others. More specifically he said:

• By issuing a draft Plan instead of a final Plan (that takes a further eight weeks), the Council reduced the two-month appeal window to the Tribunal. Mr X felt the Council did this deliberately to make it harder for parents to appeal.
• By not providing details about advice and support services and appeal rights with the amendment notice, the Council had blocked parents’ access to information and support that it was required by law to provide. Mr X felt this too was done intentionally to prevent parents from accessing crucial support to appeal to the Tribunal.

31. In late November Y’s new caseworker contacted Mr X and arranged a meeting to discuss amendments to Y’s draft EHC Plan.
32. On 9 December 2024 Y’s new caseworker met with Mr X virtually to discuss amendments to Y’s EHC Plan. The Council issued Y’s final amended EHC Plan the same day and provided information about mediation, the Tribunal and independent support services in the accompanying decision letter. Mr X was satisfied with Y’s final amended EHC Plan so he did not appeal to the Tribunal.
33. In late December 2024 the Council issued its stage two complaint response to Mr X’s complaint. In this response, the Council:

• Apologised to Mr X and offered a payment of £50 for the distress and inconvenience caused and a further £100 for putting Mr X to unnecessary time and trouble.
• Reassured Mr X that it honoured the Tribunal appeal window and that it would have considered an extension if it was necessary and appropriate.
• Noted that it provided information about support services and appeal rights in the decision letter that it sent with final EHC Plans. The Council said that while it was possible that it may have missed this information previously, it denied intentionally manipulating the amendment process. Evidence showed that the Council’s decision letter sent with Y’s final EHC Plan in December 2024 included information about support services, mediation and appeal rights.
• Acknowledged its service was inadequate due to staff vacancies and poor communication which caused Y’s case to drift.
• Said it had implemented new phone technology and updated contact information for key staff to improve its communication. It also reassured Mr X that its EHC team was now better staffed and it planned to provide additional training to its staff to prevent the same issues from reoccurring in the future.

34. Mr X felt the Council’s investigation was inadequate so he complained to us in February 2025.

Findings

Annual review

35. We expect councils to follow statutory timescales set out in the Special Educational Needs and Disability Regulations 2014 and the SEND Code of Practice 2015. We are likely to find fault where there are significant breaches of those timescales.
36. The Council held Y’s annual review meeting on 5 March 2024. In line with the SEND Code, it should have issued its decision to amend Y’s EHC Plan by 2 April 2024, however it did not do so until 31 May 2024 (which was a delay of almost nine weeks). It should have issued Y’s final amended EHC Plan within eight weeks of its decision and by 28 May 2024 but did not do so, which was fault.
37. The Council held another annual review meeting on 18 June 2024. It issued its decision to amend Y’s EHC Plan on 5 August 2024 which was a delay of three weeks. It should have gone on to issue the final amended EHC Plan within eight weeks and by 10 September 2024. The Council did not issue Y’s final amended EHC Plan until 9 December 2024 which was a delay of almost 13 weeks.
38. Overall the Council delayed almost 28 weeks to issue Y’s final amended EHC Plan following their annual review in March 2024. This significant delay in issuing Y’s final Plan was fault and it caused Mr X avoidable frustration and uncertainty. It also delayed Mr X’s right of appeal to the Tribunal. However, as Mr X did not use those appeal rights when he did receive them, it did not cause him a further injustice.
39. We recently made service improvement recommendations to the Council on similar matters in a separate investigation in November 2024. Therefore, I have not considered it necessary to repeat these or make further service improvement recommendations on this part of Mr X’s complaint.

Amendments to the Education, Health and Care Plan

40. The SEND Code outlines the process councils must follow when amending an EHC Plan. This involves an annual review meeting, proposed amendments (within four weeks of the meeting) and a final amended EHC Plan (within eight weeks of the proposed amendments).
41. The Code also states that when sending the final amended EHC Plan, councils must notify parents of their right of appeal to the Tribunal and the two-month time limit for doing so. It must also provide details of mediation, information, advice and support services and other dispute resolution services. The two-month deadline to appeal begins from the date on the Council’s letter enclosing the final amended EHC Plan.  
42. Mr X complained that by issuing a draft EHC Plan instead of a final Plan (that would take a further eight weeks), the Council reduced the two-month appeal window to the Tribunal thereby making it harder for parents to appeal.
43. Aside from the delay identified in paragraph 38 of this decision, the Council followed the amendment process set out in the Code. The Council also provided Mr X information about support services and the Tribunal when it issued Y’s final amended EHC Plan on 9 December 2024, as required by the Code. There was no legal requirement for the Council to provide this information at an earlier stage of the amendment process.

Communication and complaint handling

44. The Council accepted its communication with Mr X was poor. It said this was due to Y’s caseworker going on leave. However the Council should have provided regular communication in their absence. Mr X contacted the Council about proposed amendments to Y’s EHC Plan on several occasions and over many months, but the Council did not provide any evidence it responded to contacts from Mr X in a timely manner. This was fault which caused Mr X avoidable frustration. The Council also did not provide a full response to Mr X’s stage one complaint in August 2024 which was fault that added to Mr X’s frustration.
45. The Council offered Mr X a payment of £150 to recognise the time and trouble he was put to, and the distress he was caused. However, given the significant delay in issuing Y’s final amended EHC Plan, I did not consider the Council’s offer sufficiently remedied the injustice caused by its fault, so I have made a further recommendation below.

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Agreed action

46. Within one month of this decision the Council will:
1. Apologise to Mr X for the avoidable frustration and uncertainty he was caused by the Council’s faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
2. Pay Mr X £250 for the avoidable frustration and uncertainty caused by its failure to issue Y’s final amended Education, Health and Care Plan within statutory timescales following annual reviews in March and June 2024. This amount includes the £150 the Council has already offered.
47. The Council will provide us with evidence it has complied with the above actions.

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Decision

48. I found fault causing injustice and the Council has agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman