Summary: Mr X complained the Council failed to complete the annual review of his child’s Education, Health and Care Plan and failed to suitably communicate with him. We found fault with the Council failing to complete the annual review process of Mr X’s child’s EHC Plan for 28 months outside the statutory timescales. We also found fault with the Council’s handling of Mr X’s complaint. The Council agreed to apologise to Mr X, pay him £500 for the avoidable inconvenience and frustration he experienced and £1,750 for his child’s uncertainty and potential lost opportunity caused by the Council’s fault.

The complaint

1. Mr X complained the Council failed to complete the annual review of his child’s Education, Health and Care Plan.
2. Mr X also complained the Council has failed to communicate with about this matter.
3. Mr X says the Council’s actions have delayed putting in place suitable provision for their child and providing the correct learning environment. Mr X also advised the Council’s actions have caused frustration and upset.

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The Ombudsman’s role and powers

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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended).
7. 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. (Local Government Act 1974, section 26(6)(a), as amended).
8. 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.
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 investigated Mr X’s complaint about the delays in review and production of an amended Education, Health and Care Plan for his child since 29 March 2023. I have not investigated any matters before 29 March 2023 because of the passage of time. The Ombudsman cannot investigate matters when a person takes more than 12 months to bring this to our attention without good reason. In this case, the ongoing delays by the Council present good reason for us to investigate this matter back to 29 March 2023 despite Mr X only approaching the Ombudsman in March 2025. However, any issues before 29 March 2023 would be outside the jurisdiction of the Ombudsman to investigate as there is no good reason to investigate matters before this date.
12. I have not investigated Mr X’s concerns about the content of the Education, Health and Care Plan including the suitability of the school placement or provision detailed in the plan. This is because the Ombudsman cannot require any changes to a child’s Education, Health and Care Plan. Only the SEND Tribunal can require a council to change a child’s Education, Health and Care Plan.

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How I considered this complaint

13. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
14. Mr X and the Council had an opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

Education, Health and Care Plans

15. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
16. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
17. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. An annual review is completed when a council issues a letter advising of intention to cease, maintain or amend an EHC Plan following an annual review meeting.
18. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
19. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
20. Where a 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
21. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
22. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the Final amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
23. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
24. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

Council complaints procedure

25. The Council operates a two-stage complaints procedure.
26. The Council’s policy says it will acknowledge a complaint within three working days and provide a full complaint response within 20 working days. If the Council needs longer than 20 working days it states it will let them know about the possible timescales for a response.
27. If a person is dissatisfied with a complaint at Stage 1 they can request consideration of their complaint at Stage 2. The Council says it will provide a response at Stage 2 within 20 working days of request. The Council says it will let the person know if they need longer than 20 working days to provide the Stage 2 response.

What happened

28. On 3 March 2023, the Council produced an amended Final EHC Plan for Mr X’s child, who I shall refer to as Y.
29. Y’s school held an annual review meeting on 29 March 2023 for Y’s EHC Plan.
30. On 24 January 2024, the Council sent a letter to Mr X advising it would be amending Y's EHC Plan following the annual review meeting held on 29 March 2023. The Council did not issue an amended Final EHC Plan.
31. On 19 June 2024, Y’s school held a further annual review meeting for Y’s EHC Plan.
32. The Council received a formal complaint from Mr X on 1 August 2024. Mr X said the Council had failed to communicate with them about his child’s needs following the annual review meeting held in March 2023. Mr X said the lack of action by the Council meant Y was not receiving suitable support for their education.
33. On 13 September 2024, the Council sent a Stage 1 complaint response to Mr X. The Council said:
• It apologised for the lack of contact from the Council and advised their caseworker had been away from work with illness.
• Y’s school held an annual review meeting on 19 June 2024 and it apologised for not completing this process yet.
• It would complete Y’s annual review process as soon as possible.
34. Mr X sought consideration of his complaint at Stage 2 of the Council’s complaints process on 4 November 2024. Mr X said his complaint related to the lack of action by the Council from the 2023 annual review meeting. Mr X said he had still not received a response from the June 2024 annual review meeting. Mr X expressed concerns the Council’s inaction was causing a detrimental impact on Y by not providing the support they needed.
35. On 31 December 2024, the Council provided a Stage 2 complaint response in which it upheld Mr X’s complaint about the poor communication and delays in the annual review process in 2023 and 2024.
36. On 13 February 2025, Mr X chased the Council for completion of the annual review process. The Council responded on 28 February 2025 to apologise for the further delays and advised it would contact the relevant team.
37. The Council issued a decision to amend letter to Mr X for Y’s EHC Plan on 15 May 2025. The Council has not issued an amended Final EHC Plan up to the date of the Ombudsman’s decision.

Analysis

EHC Plan review delays

38. The Council delayed in completing the annual review process for Y’s EHC Plan from 29 March 2023 to the date of this decision. The Council’s failure to complete the EHC Plan annual review process in line with the statutory timescales is fault.
39. The Council had four weeks from 29 March 2023 to send a notification letter to Mr X about its plan to cease, maintain or amend Y’s EHC Plan. The Council sent the notification letter for Y 39 weeks late. This was delay and was fault.
40. The Council has not issued an amended Final EHC Plan following the notification to amend letter on 24 January 2024. The Council had eight weeks to issue an amended Final EHC Plan following this letter meaning it had until 22 March 2024. Anything beyond 22 March 2024 is delay outside the statutory timescales and is fault.
41. Despite holding a further annual review meeting for Y’s EHC Plan in June 2024, this does not impact on the continuing delay from issuing the amended Final EHC Plan. The Council has told the Ombudsman it will issue a Final EHC Plan for Y by the October 2025 half-term; this would be 24 October 2025. I consider it appropriate to include this deadline for the Council to issue the Final EHC Plan in the recommendations in this complaint.
42. Using this deadline of 24 October 2025, the Council will have delayed by a further 83 weeks outside the statutory timescales, since 22 March 2024, in issuing an amended Final EHC Plan for Y. This was delay and was fault.
43. We take 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 is fault.
44. Having identified fault, we must consider whether this has caused Mr X and Y an injustice.
45. The delays in assessing Y’s needs and in issuing an amended Final EHC Plan has caused Mr X distress and inconvenience. It also delayed his ability to exercise his right of appeal to the Tribunal. This same delay has caused Y to experience uncertainty about what provision should have been detailed in their EHC Plans to meet their needs and potential lost opportunity to receive this provision.
46. We have published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
47. In this case, we cannot put Mr X and Y back in the position they would have been in if not for the fault by the Council. We cannot know what provision Y would have needed in 2023 had the Council completed the EHC Plan annual review process correctly. Without knowing what Y’s needs were, we cannot say what provision they have missed.
48. It is clear Y has faced uncertainty about what provision they have missed because of the Council’s delay since 29 March 2023. The total delay caused by the fault of the Council amounts to 28 months up to 24 October 2025. This delay is prolonged and significantly beyond the statutory timescales.
49. Given the prolonged delay by the Council and the potential impact on Y, I consider a payment of £750 a year would be appropriate. For the 28 months of avoidable uncertainty and lost opportunity Y experienced, this would total £1,750.
50. The delays by the Council have also caused Mr X avoidable distress and frustration since March 2023. We consider a payment of £400 to Mr X would also be appropriate given the delays by the Council.
51. Mr X has advised the Council failed to attend annual review meetings for Y’s EHC Plan. The Council has no duty to attend annual review meetings so I would not find it at fault for this. The Council’s responsibility is to obtain the relevant information from annual review meetings, decide whether to cease, maintain or amend Y’s EHC Plan and follow through on this action.

Complaint handling

52. Mr X made his first complaint to the Council on 1 August 2024. This meant the Council had until 30 August 2024, when considering the August 2024 Bank Holiday as a non-working day, to provide a Stage 1 complaint response. The Council failed to provide the Stage 1 complaint response until 13 September 2024. This response was 10 working days outside the Council’s complaint timescales and was fault.
53. When Mr X sought consideration of his complaint at Stage 2 on 4 November 2024. The Council had until 2 December 2024 to provide its Stage 2 complaint response. The Council failed to provide the Stage 2 complaint response until 31 December 2024. When considering the bank holidays during this time period, this meant the Council’s response was 19 working days outside its complaint timescales.
54. Overall, the Council has delayed by 29 working days, nearly six weeks, outside its complaint timescales in responding to Mr X’s complaint. This will have caused Mr X avoidable frustration and inconvenience. The Council should issue an apology and pay Mr X £100 in recognition of the frustration and inconvenience it caused.

Service Improvements

55. This council is already subject to action plans following recommendations from previous Ombudsman investigations. These action plans are currently underway and relate to SEND processes and increasing the capacity for its SEND service.
56. The Ombudsman is, as such, already aware of the difficulties this council is experiencing with its education services and are monitoring its progress with compliance with previous recommendations. It would not add any value to propose further service improvements on the Council that would duplicate the action already underway.

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Action

57. By 24 October 2025 the Council will:
• Issue an amended Final EHC Plan for Y.
• Provide Mr X with a payment of £1,750 as a symbolic payment to acknowledge Y’s uncertainty and potential lost opportunity for 28 months outside the statutory timescales in receiving suitable up-to-date EHC Plan provision.
• Provide an apology and pay Mr X £500 for the avoidable inconvenience and frustration the Council caused through delays in the handling of his complaint and in completing the annual review process for his child’s EHC Plan.
58. The Council will provide us with evidence it has complied with the above actions.

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Decision

59. There was fault leading to injustice. As the Council has agreed to my recommendations, 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