Summary: The Council delayed providing an Educational Psychologist (EP) report for the reassessment and delayed drafting and finishing the Education, Health and Care (EHC) Plan after the annual review. The Council should apologise to Ms X for her distress and make a payment to recognise the impact on Ms X’s sons (S) education.

The complaint

1. Ms X complained the Council delayed issuing her son’s (S) amended Education, Health and Care (EHC) Plan and did not provide him with education. Ms X said this has caused her distress and caused S to miss education and become isolated and withdrawn. She would like the Council to apologise, provide alternative provision for S and financially compensate him for missed education.

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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. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, 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).
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(1), as amended)

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What I have and have not investigated

7. I have investigated the period February 2024 to November 2024.
8. As explained in paragraph four above we cannot investigate late complaints unless we decide there are good reasons. Ms X complained to the Ombudsman in March 2025 about events starting in October 2023. Part of the complaint is therefore late and there are no good reasons to exercise discretion to investigate events before February 2024.
9. I have exercised discretion to investigate from February 2024 as this is the date of the annual review and is relevant to subsequent events that were not late. Any information provided before this time is for background only.
10. Ms X appealed the EHC Plan to the Special Educational Needs and Disability (SEND) Tribunal in November 2024. This is the correct mechanism to appeal a Plan. As Ms X appealed to the Tribunal, anything after the date the Council finalised the EHC Plan, is outside the Ombudsman’s jurisdiction and does not form part of my investigation as explained above.

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How I considered this complaint

11. I considered evidence provided by the Council and Ms X as well as relevant law, policy and guidance and our guidance on remedies published on our website.
12. The Council and Ms X 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 legislation

Drafting and maintaining the Education, Health and Care Plan

13. 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. 
14. As part of the EHC Plan assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice. 
15. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
16. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Reviewing the Education, Health and Care Plan

17. 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) 
18. 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.

Reassessments of the Education, Health and Care Plan

19. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
20. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.
21. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Appeal to the Tribunal

22. 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.

23. 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; and
• decision not to amend an EHC Plan following a review or reassessment.

24. 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).
25. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
26. 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.

What happened

27. I have summarised below the key events; this is not intended to be a detailed account.

Background

28. S has special educational needs. He had an Education, Health and Care (EHC) Plan. The Council issued the second version of his EHC Plan in August 2023. Following a SEND Tribunal decision, the Council named a special school for S in Section I, which it agreed was suitable. S started at the special school in September 2023. Ms X told me she was happy with S’s Plan at first. S’s attendance quickly declined during the first month and he did not attend after October 2023. Ms X emailed the special school and the Council in October 2023, she said S was not in school and would not return. Ms X said the special school did not have the expertise to work with her son and there was no transition plan.

February 2024 onwards

29. In February 2024, the Council held S’s Annual Review. At this time, S was on the roll at the special school but was not attending.
30. In May 2024, the Council issued a decision letter to Ms X saying it proposed to amend S’s EHC Plan and enclosed a copy of the updated draft EHC Plan. The School commissioned two hours a week of private tuition through an independent education provider (A) and two hours a week with a mentoring provider (B). These started in May 2024. The Council funded these from July 2024 onwards,
31. In conversation with Ms X, she told me provision A was not suitable for S; she said the tutor did not understand S’s needs and caused him significant distress. Ms X said she told the Council S would not attend provision A, the Council continued to commission it. Ms X told me S engaged with provision B and enjoyed these sessions.
32. In June 2024, the Council agreed to complete a reassessment and would get an Educational Psychologist (EP) report. It told Ms X to expect a six-month delay to access the EP.
33. In November 2024, the Council issued S’s final amended EHC Plan. Ms X appealed this to the special educational needs and disabilities (SEND) Tribunal.

The complaint

34. In October 2024, Ms X complained to the Council. She said the Council agreed for an EP to reassess S, but this had been delayed. S had not attended school for 12 months and had received no meaningful provision in this time.
35. The Council issued a stage one response in November 2024 and a stage two response in February 2025.
36. The Council accepted it had not completed the EP reassessment of S within the statutory timeframe and apologised for the delay. It also accepted and apologised for the delay in processing the annual review.
37. In response to Ms X’s complaint about the Councils failure to provide education, it said it provided a personalised transition plan to the special school where he remained on the roll until the end of the academic year in 2024. It also put alternative provision in place for S. The Council said it had carried out its duty under section 19 as it offered educational provision to S. It did not uphold this part of Ms X’s complaint. Neither did it offer any compensation for missed education.
38. Ms X complained to the Ombudsman in March 2025. She said the Council failed to provide S with suitable education, delayed issuing the EHC Plan and delayed her rights to appeal to the Tribunal.
39. In response to my enquiries, the Council said it acknowledged Ms X’s concerns and recognised there were procedural delays and missed opportunities to act promptly. The Council told me it was satisfied the special school was suitable for S as it responded positively to the original consultation and advised it could meet S’s age, ability and aptitude and deliver the provision outlined in his EHC plan.

Analysis

40. 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.

Delay drafting the revised EHC Plan and providing education and reassessment

41. The Council held S’s annual review in February 2024. It should have written to Ms X with its decision whether to amend, maintain or discontinue Y’s EHC Plan within four weeks of the annual review meeting (March 2024) and issued S’s amended EHC Plan within eight weeks of the decision letter (May 2024). The Council issued the decision letter and notice to amend and the draft EHC Plan in May 2024, two months late, and the final EHC Plan in November 2024, six months late. This delay is fault which the Council accepted in its complaint response.
42. The Council agreed to complete a reassessment in June 2024 and requested an EP report which it had not completed by November 2024 when it issued the amended Final EHC Plan. This is a delay, fault which the Council accepted in response to my enquiries.
43. The delay in the EHC review and reassessment has caused uncertainty to Ms X and S as they did not know what advice the EP would give, how this would shape S’s new Plan and what and what provision he would receive. It also delayed Ms X’s appeal rights.

Provision

44. The Council told me it was satisfied the special school was suitable for S as it responded positively to the consultation. The special school advised it could meet S’s age, ability and aptitude and deliver the provision outlined in his EHC Plan. Ms X also told me she was happy with the Plan and the special school at first.
45. The Council knew S was not attending the special school at the time of the annual review in February 2024 and was not receiving the provision set out in his EHC Plan. It should have done more at this point to ensure S was receiving the provision in his plan. The Council’s failure to do so is fault. When the Council did consider the matter, it decided it needed to provide alternative provision for S. S did not receive provision through provider A and B until May. Had the Council acted without fault and considered the suitability of the provision sooner, the Council would have arranged alternative provision sooner. This means S missed out on provision for around three months, this is his injustice.
46. Provision was in place for S from May onwards, through provider A and B. Ms X raised concerns about provider A which should have caused the Council to review it. I have not seen evidence the Council reviewed provision at the special school or provider A and B to ensure it remained suitable for S, after it was commissioned. The Council should have done more to address this, especially when Ms X raised concerns and told the Council S would not attend the special school and provision A. This is fault causing uncertainty as Ms X did not know if there may have been other more suitable education providers for her son.

Action already taken by the Council

47. The Council finalised the EHC Plan, allowing Ms X the opportunity to appeal to the Tribunal. This was one action Ms X sought when complaining to us, which the Council has already actioned. I do not need to recommend any remedies about this part of Ms X’s complaint.
48. In response to my enquiries, the Council said it is increasing staffing capacity, streamlining operational practices, and strengthening partnership working across services. The Council considers this will improve the communication, decision-making, and responsiveness, and deliver a more timely and effective service. I do not consider I need to make any further suggestions for service improvements.

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Action

49. Within four weeks of the final decision, the Council agreed to:
• Apologise to Ms X and pay her:
1. £650 for the distress and uncertainty caused by the delay in the EHC review and reassessment.
2. £400 to recognise the impact of missed provision for the period March to May 2024. This is the period after the annual review until provider A and B started working with S.
3. £250 for the distress and uncertainty caused by the Council failing to check provider A and B were suitable for S when Ms X raised concerns, during the period May (when the provision started) to November 2024 (when my investigation ends).
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman