Summary: Mrs X complained the Council failed to finalise her daughter, Miss Y’s Education, Health and Care Plan within legal timescales. She also complained the Council failed to complete a phased transfer review. Mrs X said this frustrated and distressed her. The Council was at fault, but it has taken appropriate action to remedy any injustice caused by this fault.

The complaint

1. Mrs X complained the Council failed to finalise her daughter, Miss Y’s Education, Health and Care (EHC) Plan within legal timescales. She also complained the Council failed to complete a phased transfer review. Mrs X said this frustrated and distressed her.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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)
4. 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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How I considered this complaint

5. I read Mrs X’s complaint and spoke to her about it on the phone.
6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X 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

Background information

8. 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. 
9. 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) 
10. 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.
11. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  
12. There is a right of appeal to the Tribunal against a council’s:

• 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;

13. 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)
14. 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.
15. 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

16. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
17. Miss Y has an EHC Plan. The Council issued an updated final EHC Plan in July 2024 following a Tribunal decision.
18. The school held the annual review in September 2024. The school recorded the meeting was not a phase transfer review. The meeting discussed Miss Y’s education and future, although she could not attend. The school recommended the Council amend the plan.
19. The Council confirmed it would amend Miss Y’s EHC Plan at the start of December 2024. The Council issued the draft plan at the end of December 2024.
20. Mrs X complained in December 2024. She complained the Council failed to issue the final EHC Plan within legal timescales and refused to agree to complete a phased transfer review.
21. The Council responded to Mrs X’s complaint in January 2025. The response accepted it did not issue the EHC Plan within timescales. The Council did not uphold Mrs X’s complaint about the phased transfer review as the school held the review.
22. Mrs X asked the Council to escalate her complaint three days later. She was not satisfied with the Council response. Mrs X said the September 2024 review was not a phased transfer review.
23. The Council issued its stage two response in February 2025. The response accepted the delays in the annual review process and apologised. It did not uphold the complaint about the phased transfer review. The response confirmed a meeting to discuss education options from September 2025. The Council apologised and offered Mrs X £200 for the distress caused by the delay issuing the final EHC Plan.
24. The Council issued the final EHC plan at the end of March 2025. Mrs X said she did not receive the plan. The Council confirmed there was a problem with its system and resent the plan in the middle of April 2025. Mrs X was not happy with the final EHC Plan.
25. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to finalise the EHC Plan, conduct a phase transfer review and improve its services.
26. In response to my enquiries the Council accepted it did not finalise the EHC Plan within the legal timescales. The Council confirmed it considered the review meeting in September 2024 as the phase transfer meeting.

My findings

27. The regulations, detailed in paragraphs nine and ten, set out the timescales for the Council to issue its decision after an annual review and issue the final EHC Plan. The Council had four weeks to issue its decision. It should have issued the decision by the end of October 2024. It did not issue the decision until December 2024, a two-month delay. This is fault, frustrating Mrs X.
28. The Council must send a copy of the plan, and the proposed amendments when it confirms its decision to amend the plan. The Council has not evidenced it did this. This is fault.
29. The Council had eight weeks to issue the final EHC plan from the decision notice. The Council should have issued the plan by the end of January 2025. The Council did not issue the Plan until March 2025. The Council accepted the problem with its system meant Mrs X did not receive the plan for a further two weeks after this. This two-month delay is fault.
30. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. This distressed Mrs X and frustrated her appeal right to the Tribunal.
31. The Council accepted it did not complete the annual review process, apologised and paid a remedy of £200 to Mrs X. This is a suitable remedy for the injustice caused by the Council fault.
32. Mrs X’s complaint also references the Council did not complete a phased transfer. The school recorded the meeting in September 2024 was not a phased transfer. Mrs X said the meeting was only to discuss amendments needed following the previous EHC Plan. The Council stated it was a phased transfer review.
33. Irrespective of what Mrs X or the Council called the meeting in September 2024, the Council ensured it reviewed the plan within the phase transfer year. There is no injustice caused by this part of the complaint. The injustice arose because the Council did not issue the final EHC Plan within statutory timescales. As set out above, the Council accepted this, apologised and offered a suitable remedy.

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Decision

34. I have completed my investigation. I have found fault by the Council, but it has already remedied any injustice caused by this fault.

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Investigator's decision on behalf of the Ombudsman