Summary: Mrs B complained about the way the Council dealt with her son’s special educational needs. We found the Council delayed issuing an education, health and care plan, causing a delay to her appeal rights. The Council has agreed to apologise and make a symbolic payment to remedy this.

The complaint

1. Mrs B complained that the Council:
1. Delayed issuing her son’s final education, health and care (EHC) plan after the annual review, causing a delay to her appeal rights.
2. Breached her and her son’s privacy when it consulted with schools she had not requested and delayed responding to her subject access request.
3. Named a mainstream setting in the EHC plan, rather than specialist provision.
4. Failed to make reasonable adjustments whilst communicating with her, causing her distress.

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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. 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.
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 Tribunal in this decision statement.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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)
7. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is another body better placed to consider the complaint. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
8. We cannot decide if an organisation has breached the Equality Act 2010 as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
9. 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)
10. 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

11. I have not investigated parts b) and c) of the complaint. This is because:
• As explained in paragraph 7 above, we normally expect someone to refer data protection matters to the Information Commissioner.
• As described in paragraphs 4 to 6 above, we cannot investigate a complaint if someone has appealed, or can appeal, to a tribunal about the same matter.

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How I considered this complaint

12. I spoke to Mrs B about her complaint and considered the information she sent, the Council’s response to our enquiries and the Special Educational Needs and Disability Code of Practice ("the Code").
13. Mrs B and the Council 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

Relevant law and guidance

14. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year. (Children and Families Act 2014, Section 42)
15. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
16. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Reviewing EHC Plans

17. The Code says councils must review a child's EHC plan every 12 months. These annual reviews consider whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan. The first review must be held within 12 months of the date when the EHC plan was issued. They must then be held within 12 months of any previous review. A council can consider holding an early review if there is a change in the child’s circumstances.
18. An EHC plan must be reviewed and amended by 15 February in the calendar year of a child moving between key phases of education, such as from primary to secondary.
19. Within four weeks of the review, councils must decide whether they propose to amend the plan and notify the young person of this decision. If they are amending, they must do so without delay and issue an amendment notice.
20. The parent must be given at least 15 calendar days to comment on the proposed changes and express a preference for an educational placement. The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
21. Although the Code does not give any deadline for the issuing of an amendment notice, a high court decision says any draft amended plan must be issued within four weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review. (L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin))

Reasonable adjustments for people with disabilities

22. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.

What happened

23. I have set out the key events, this is not meant to detail everything that happened.
24. Mrs B’s son, G, has ADHD and significant social, emotional, and mental health needs. He was attending a mainstream primary school and had an EHC plan. He was due to start secondary school in September 2025.
25. There was an annual review of G’s EHC plan on 17 June 2024. Amendments were recommended and Mrs B said she wanted a specialist setting for secondary school. Her preferred mainstream secondary school was School W.
26. The Council wrote to Mrs B on 10 September saying it would amend the EHC plan. I have not seen evidence that the proposed amendments were sent to Mrs B then.
27. The Council was waiting for an updated report from the educational psychologist. On 25 October, to prevent further delay, Mrs B asked the Council to use the existing psychologist’s report as it had been done recently.
28. The Council considered G’s education at a panel in November. It decided his needs could be met in a mainstream school. On 3 December, Mrs B asked the Council to consult with specialist schools “eg School X”.
29. The Council issued a final EHC plan on 13 December. This named the primary school until July 2025 and a “mainstream secondary” from September 2025. At this point Mrs B had a right to appeal to the Tribunal.
30. I have seen evidence that the Council then consulted with School W, School X and two other mainstream schools, School Y and School Z. By 19 December, Schools X, Y and Z had replied that they were unable to meet G’s needs.
31. Mrs B complained on 16 December that the Council had breached her data protection rights by consulting with schools she had not requested. She also complained that the Council had not named a specialist secondary school in the plan.
32. The Council replied to the complaint on 20 December. It said it had consulted with schools in line with Mrs B’s preferences and a final EHC plan had been issued which Mrs B could appeal if she wished. Mrs B asked for her complaint to be escalated to the next stage as she remained dissatisfied.
33. On 9 January 2025, the Council issued another final EHC plan, this named School Y from September 2025. This gave Mrs B a new right to appeal to the Tribunal.
34. School W replied to the Council on 10 January as it had not seen the consultation earlier due to the school holiday. It said it could not meet G’s needs although it had been named the in the plan. I have not seen evidence of a final EHC plan which named School W.
35. The Council says that in a phone call in January, Mrs B asked the Council to call her before it emailed her as a reasonable adjustment. On 9 January, Mrs B emailed the Council concerned that it was not calling her as requested. She asked the Council to escalate her complaint to the final stage. She had not received a stage two response in relation to the EHC plan complaint but the Council escalated the complaint to stage three. The Council called Mrs B on 13 January to discuss her queries and then sent an email setting out what had been discussed. It said it had to secure a placement for G’s transition to secondary school by 15 February.
36. Mrs B appealed to the Tribunal in February 2025.
37. The Council sent its final complaint response on 17 February. The Council apologised it had not replied to all Mrs B’s emails within five days. Whilst it appreciated Mrs B wanted to deal with matters by phone, the Council wanted to respond in writing to prevent misunderstandings. Schools had 15 days to respond to an EHC plan consultation even if there was a school holiday. The Council said
38. Mrs B came to the Ombudsman. The Council conceded the appeal and a specialist secondary school was named in a new final EHC plan in June 2025.

My findings

39. The Council is correct that when a child is transferring between educational phases, their EHC plan must be reviewed and finalised before 15 February of the calendar year in which the child transfers. However, as set out in paragraph 21, the Council must issue the final amended Plan within 12 weeks of the annual review.
40. As G’s annual review meeting was held on 17 June 2024, the final plan was due by 9 September 2024. But it was not issued until 13 December 2024, a delay of three months, which is fault. This caused Mrs B frustration and for her appeal rights to be delayed. This is an injustice.
41. But on balance, I do not find that if the plan had been issued sooner it would have named the specialist setting that Mrs B wanted. This is because the Council had decided in November 2024 that G’s needs could be met in a mainstream school.
42. Mrs B says the Council did not make reasonable adjustments for her. The Council says that in January 2025, she asked the Council to call her prior to emailing. There is evidence it did so on 13 January. In response to my enquiries, the Council says it considered Mrs B’s request for phone calls and did call her, but it had determined it still needed to email her to avoid any misunderstandings. As the Councill has considered whether the adjustment was reasonable, I do not find fault.
43. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance on remedies says that a moderate, symbolic payment may be appropriate to remedy distress and delay to appeal rights.

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Action

44. Within a month of my final decision, the Council has agreed to apologise to Mrs B and pay her £200 to remedy the injustice described in paragraph 40.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman