Summary: Ms X complained the Council delayed holding her child, Y’s, Education, Health and Care (EHC) Plan annual review and delayed issuing Y’s amended EHC Plan. She also complained about poor communication from the Council about a gym pass for Y. The Council was at fault. It delayed holding Y’s annual review and communicated poorly about Y’s gym pass which caused Ms X confusion, uncertainty, frustration and distress. The Council will pay Ms X a symbolic payment and apologise. The Council has already acted to improve its service.

The complaint

1. Ms X complained the Council delayed holding her child Y’s Education, Health and Care (EHC) Plan annual review for 23 months and delayed issuing Y’s EHC Plan. Ms X said she was caused a financial burden paying for gym sessions for Y which she said should have been covered by the Council. Ms X also complained about poor Council communication. Ms X said it affected Y’s mental health and physical health and it affected her mental health and she was caused a financial burden and avoidable time and trouble.

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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 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.
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND tribunal in this decision statement.
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. 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. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

8. The law says 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).
9. Ms X complained to the Ombudsman in mid-February 2025 about events starting in December 2023 when the Council initially spoke to her about Y’s gym pass. This part of Ms X’s complaint is approximately two months late. I have used my discretion to start this investigation in December 2023. There are good reasons to investigate this now because it is relevant to the subsequent events that are not late. I ended my investigation in January 2025 when Ms X had appeal rights to the special educational needs and disabilities (SEND) tribunal.

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How I considered this complaint

10. I considered:
• the information Ms X provided about her complaint and spoke to her on the telephone;
• the information the Council provided;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

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. 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. Section F sets out the educational provision needed by the child or young person and Section I sets out the name and/or type of school.
13. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a Plan has been made and sent to the parent or a final EHC Plan has been issued.

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 take place. The process is only complete when the council issues a decision about the review.
15. Councils can delegate the arrangements for an annual review meeting to a child’s school, but the council retains responsibility for ensuring the review is conducted within the statutory timescales.
16. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
17. 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. The Council should issue an amended Plan within eight weeks of its notice to the parties that it proposes to amend the Plan.

What happened

18. Y has special educational needs including attention-deficit hyperactivity disorder (ADHD), anxiety and mental health concerns.

Background

19. Y first had an Education, Health and Care (EHC) Plan over four years ago. At that time Y attended a mainstream secondary school, School 1. Y’s attendance at School 1 declined after the Covid-19 lockdowns. Y remained on roll at School 1 and received alternative provision tutoring to support a graduated transition back into an educational placement.
20. The Council held an annual review of Y’s EHC Plan in early 2023. In March 2023 the Council issued Y’s final amended EHC Plan. Section I was left blank. Y’s EHC Plan did not include a gym pass for Y in Section F. In September 2023 Y started to attend Alternative Provision 1.

December 2023 onwards

21. In early December 2023 Ms X spoke to and emailed a Council officer, Officer 1 and asked if the Council could fund a gym pass for Y. Ms X said one of Y’s days with Alternative Provision 1 was for Y to visit a gym, Gym 1, but Y found it was too busy. Ms X told the Council she had found a quiet gym, Gym 2 where a gym instructor specialised in one-to-one personal training sessions helping children with rehabilitation. Another Council officer, Officer 2 also spoke to Ms X about the gym pass for Gym 2. She said Officer 2 said ‘they did not see it as a problem because it would help Y leave the house’.
22. In January 2024 Ms X emailed Officer 2 asking for an update about Y’s gym pass. The next day Officer 2 emailed Ms X and said they needed their manager to sign it off, Officer 2 said their manager was on leave for another five days and then they would get in touch with her. In late January 2024 Officer 2 asked Ms X for the gym instructor’s email address, which Ms X provided. Ms X said Officer 2 contacted the instructor and asked them for their criminal record check, first aid qualifications and the cost of Y’s gym sessions. Ms X said at no point did the Council Officers tell her not to start Y at Gym 2.
23. Between January 2024 and September 2024 Y had eight gym sessions each month with the instructor at Gym 2. Ms X said the Council officers did not communicate with her or keep her updated on Y’s gym pass until September 2024.
24. In early September 2024 the instructor emailed Officer 1 and provided them with Y’s gym sessions invoice for the past nine months. The same day Officer 1 said they would follow it up and try and get the outstanding invoice resolved.
25. In mid-September 2024 Ms X received an email from Officer 1 explaining Y’s Gym 2 sessions would not be funded by the Council and Ms X said she was left to pay a £2,520 bill. Ms X said Y stopped attending their gym sessions with the instructor at Gym 2.
26. In mid-September 2024 Ms X complained to the Council about how it communicated with her about Y’s gym pass and asked the Council to pay the instructor’s invoices so Y could start attending Gym 2 again. Ms X also complained about Y’s delayed annual review. She said the Council had not communicated with her after her SEN case officer left and she had no point of contact. Two days later the Council acknowledged Ms X’s stage 1 complaint.
27. In early October 2024 the Council responded to Ms X’s stage 1 complaint and said it apologised for the miscommunication and the handling of Y’s EHC Plan and gym sessions. The Council acknowledged a breakdown of communication and regretted the impact it had on Ms X and Y and it said the instructor’s costs had not been agreed and it was sorry if Ms X was given the impression the costs would be covered.
28. Ms X remained unhappy and escalated her complaint to stage 2 of the Council’s complaints process.
29. In late November 2024 the Council responded to Ms X’s stage 2 complaint. It said:
• it regretted the lack of communication over the past nine months and apologised for the delay and the frustration caused but said a gym pass was not a provision in Y’s EHC Plan and a separate agreement would need to be made;
• it understood asking for the instructor’s documents was misleading and led Ms X to the assumption the instructor would be paid. The Council said it asked for the documents to ensure they were qualified in child and adolescent sports with SEND. The Council said the instructor was not qualified and Ms X should get help from a GP around this element of Y’s health; and
• it acknowledged Y had not had an EHC Plan annual review in two years, which contributed to the issues with the instructor’s outstanding invoice. It said it tried to contact Ms X to arrange an annual review but had been unable to do so and asked Ms X to contact her case officer.
30. In December 2024 Y’s annual review was held and in late January 2025 the Council issued Y’s final amended EHC Plan including Ms X’s appeal rights which she did not exercise. Y’s January 2025 Plan did not include a gym pass in Section F.

My Findings

31. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.

Annual review delays

32. The Council accepted in its stage 2 response Y’s EHC Plan annual review was not held for two years. It said this contributed to the issues with the gym instructor’s outstanding gym invoice. Y’s annual review should have been completed by early 2024 and was not completed until January 2025. That was a delay of approximately ten months and was fault. I cannot say, had the Council acted without fault and completed the review in line with the statutory guidance timescales, Y would have received different gym provision as I cannot know the outcome of an earlier annual review, although Y’s EHC Plan issued in late January 2025 did not include a gym pass in Section F. However, the long delay caused Ms X confusion and uncertainty about whether the Council would fund Y's gym provision with the instructor she had identified as necessary. The late annual review also delayed Ms X’s appeal rights to the SEND tribunal, although she did not exercise those appeal rights and so she was not caused a further injustice.

Communication and gym pass

33. A gym pass was not included as a provision within Y’s EHC Plans dated March 2023 or early 2025. This means the Council was not obliged to pay for Y’s gym sessions included in the instructor’s invoice. In addition, the Council did not say it would pay the instructor’s invoice or that Y should start attending the sessions with the instructor. However, the Council accepted in its complaint responses it communicated poorly with Ms X between January 2024 and September 2024 around Y’s gym pass. It has already apologised to Ms X for the frustration it caused her. This partially remedied the injustice caused. The Council has also agreed to make a symbolic payment for the frustration and distress the poor communication caused Ms X.

Service Improvements

34. The Ombudsman has already made recommendations to this Council on similar cases including improving the way its service communicate and reminding staff of the statutory timescales for completing annual reviews, on this basis no further recommendations were needed.

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Action

35. Within one month of the final decision the Council will:
1. apologise and pay Ms X £200 for her confusion and uncertainty caused by Y’s delayed annual review; and
2. pay Ms X £200 for the frustration and distress its poor communication with Y’s gym pass caused her between January 2024 and September 2024.
36. The Council will provide us with evidence it has complied with the above actions.

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Decision

37. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice caused. The Council has already taken action to improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman