Summary: Mrs X complained the Council delayed carrying out Education Health and Care Plan reviews and failed to provide the education set out in the plans. The Council failed to meet the statutory timescales in respect of three annual review causing distress and frustrating Mrs X’s appeal rights. A financial remedy for the injustice is agreed.

The complaint

1. Mrs X complains the Council delayed carrying out EHC Plan reviews and failed to provide the education set out in the EHC Plan.
2. Mrs X says this caused distress and frustrated her rights of appeal.

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The Ombudsman’s role and powers

3. 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)
4. 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(1), as amended)
5. 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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How I considered this complaint

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 before making a final decision.

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What I found

EHC Plan 

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. 

Reviewing EHC Plans

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 cease to maintain 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. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
11. 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.
12. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Appeal rights

13. 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.

Key facts

14. This section sets out the key events in this case and is not intended to be a detailed chronology.
15. Mrs X’s daughter, Z, has special educational needs and attended school A, a special school. An annual review meeting for Z’s EHC Plan took place in June 2023. Following the meeting the Council should have sent notice within four weeks indicating whether it intended to amend, maintain or cease the EHC Plan. No notice was sent.
16. Mrs X says that her daughter had not been attending school full time for a number of reasons including racial discrimination. Mrs X wanted a change of placement for Z. A further annual review meeting was held in November 2023. The Council sent Mrs X an amended draft EHC Plan in March 2024 and Mrs X then submitted her comments and proposed amendments.
17. Mrs X says that Z’s ability to attend school declined and so she requested alternative provision in February 2024. The Council offered online provision and Mrs X explained that this was not suitable for Z because of her SEN. Mrs X says that no other provision was offered.
18. In July, following discussions between Mrs X and the Council, it agreed to consult with an independent mainstream school, school B, which had indicated it may be able to meet Z’s needs. The Council emailed the school on 6 August sending a copy of Z’s draft EHC Plan and seeking its views. The school contacted the Council on 13 September apologising for the delayed response and asking if it could send the form to complete. It contacted the Council again on 27 September asking for the form. It was sent on 8 October.
19. The Council issued the final EHC Plan in August 2024. It named Z’s school A at section I of the EHC Plan. Mrs X did not submit an appeal regarding the naming of the school even though she says the placement had broken down and Z was not able to attend full time.
20. School B returned the completed consultation form to the Council on 17 October. Z’s case officer did not take any action until 18 December when she sent further forms to the school to complete in respect of the offer being made and the costs.
21. Mrs X contacted the Council on 11 February seeking an urgent update. She contacted the Council again on 28 February saying school B had told her it had provided all the paperwork. She explained she had instructed a solicitor and would be sending a pre-action protocol letter before issuing judicial review proceedings.
22. On 4 March the case officer emailed Mrs X apologising for the delay in contacting her saying she had been busy with other cases. She said school B had still not provided the costs of the placement but that she was hoping to speak with someone from the school later that day. On 10 March school B invited Z to take its entrance assessment.
23. Mrs X’s solicitor sent a pre-action protocol letter to the Council on 25 March. It indicated Mrs X intended to make a judicial review application on the following grounds:
• Failure to review Z’s EHC Plan within 12 months from the last review; and
• Failure to provide suitable full time arrangements to educate Z since 20 February 2024.
24. The headteacher of Z’s school A contacted the Council in April saying the situation had remained unresolved for over 12 months and she was keen to establish what the plan was for Z. She asked the Council to give it urgent attention.
25. School B emailed the Council on 2 April saying Z had completed the entrance assessment and they now better understood her needs. It explained that she would require some additional funded support and provision.
26. The Council sent its response to the solicitor letter on 14 April. It said it was seeking to clarify if Z remained on roll at the school A and why it did not undertake an annual review. It said it was willing to carry out an annual review (it proposed three dates within the next month) and reimburse the cost of any alternative provision upon receipt of invoices. It apologised for any inconvenience or upset caused and attached copies of email exchanges with school B and said it was still waiting for it to provide costings.
27. Mrs X’s solicitor sent a further pre-action protocol letter to the Council on 3 June. Again it indicated a judicial review claim would be made on the following grounds:
• Failure to adhere to the statutory timescale for issuing an amended EHC Plan following an annual review
• Failure on an ongoing basis to provide suitable full time education for Z since February 2024.
28. The Council responded on 17 June accepting it failed to adhere to the statutory timescales following the annual review meeting. It did not accept it had failed to provide section 19 education provision as Z had a place at a school and so it considered the duty was discharged. It said that it was mindful of the issues Mrs X raised and so agreed to fund alternative provision put in place by Mrs X. It also said it was willing to take the following action:
• Issue an amendment notice and draft EHC Plan by 20 June 2025 and to name school B with the view that Z will start at the school in September to enable an enhanced transition to take place
• To pay the invoices provided by Mrs X once she forwards her bank details and it apologised for the failure to do this previously
• Agreed not to use any of the previous schools proposed amendments to the EHC Plan
• To fund the alternative provision put in place by Mrs X until the 23 July
29. Z remained on roll at school A until the end of the summer 2025 term. She began at school B in September 2025.

Analysis

30. An annual review meeting was held in June 2023. This was not completed within the statutory timescale. Another annual review meeting was held in November 2023. This was not completed within the statutory timescale. The Council issued the final EHC Plan in August 2024 after both review meetings had taken place. The failure to meet the statutory timescales and the prolonged delay is fault.
31. An annual review of an EHC Plan should take place within 12 months of the previous annual review. This means an annual review should have been held in June 2024. This did not happen which is fault. It was only after Mrs X’s solicitor sent a pre-action protocol to the Council in March 2025 that action was taken to hold the annual review. However, after holding the annual review meeting the Council again failed to progress the review within the statutory timescales. Mrs X’s solicitor sent a further pre-action protocol letter in order to expedite the process and to ensure the Council issued a final amended EHC Plan. It was fault that the Council did not complete the annual review process in 2025 within the statutory timescale.
32. A parent is able to appeal to a SEN tribunal if they disagree with the content of a final EHC Plan including the named institution. However, the appeal rights only engage once the final amended EHC Plan is issued. Any delay in the process frustrates those appeal rights and means the parent cannot challenge the Council’s decisions. As there was delay in issuing the final EHC Plans as described above, a financial remedy for the frustrated appeal rights is appropriate.
33. When the Council issued the final EHC Plan in August 2024, appeal rights engaged but Mrs X did not use that right of appeal. The final EHC Plan named Z’s school A. Mrs X says that the placement was not suitable and she was seeking an alternative placement for Z however she did not appeal. I am satisfied that Mrs X, due to the nature of her employment, has significant knowledge of the appeal process and so take the view it was reasonable for her to appeal. As a result, I will not consider any loss of education from the time the appeal rights engaged.
34. In reaching this view I have taken account of the fact that Council had indicated prior to issuing the final amended EHC Plan that it would consult with Mrs X’s preferred school, school B. However, it was also consulting with other schools and there was no information which could be considered a firm undertaking that a place would be available at the school B.
35. I have also taken account of the fact Z was attending school for at least 70% of the time until June 2025. Mrs X argues the Council failed to meet its section 19 duty. This duty requires a council to provide a suitable full time education that is available and accessible. What amounts to full time is not set out in law. Z was attending school for the majority of the school timetable. I am aware of a racial incident at the school involving a teacher which had an impact on Z’s mental health. The school took action to address this and so the Council was satisfied the section 19 duty did not apply as an education was available and accessible.
36. As Z had an EHC Plan the Council had a duty to ensure it provided the SEN provision set out in that. This is known as the Section 42 duty. Z was attending a special school and as noted above was attending for at 70% of the time. Z was therefore receiving education in line with her EHC Plan when attending the school. It is also noted that from February 2025, Mrs X paid for some private tuition for Z to cover that which she was not receiving at school. The Council has already reimbursed the cost of this alternative provision and so I do not consider there is any further action to be taken or remedy to be provided.

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Action

37. To remedy the fault identified above, the Council will, within one month of my final decision, take the following action:
• Apologise to Mrs X for the fault identified. 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; and
• Make Mrs X a symbolic payment of £750 to recognise the prolonged distress and frustrated appeal rights as a result of the failure to process three annual reviews within the statutory timescales.
38. I have not made any recommendations for service improvements as the Ombudsman has issued several decisions finding fault with the Council’s actions in respect of SEN provision including the failure to issue EHC Plans within the statutory timescales. The Council has taken action to improve its services since the events in this case took place and so I do not consider it appropriate or necessary to recommend further action at this time.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman