Summary: Mrs B complained the Council failed to adhere to statutory timeframes for issuing an Education, Health and Care Plan for her child, X. We find the Council at fault for delays in completing the annual review and failing to consider its duty to provide the special educational provision set out in the Plan. These faults have caused distress, frustration and uncertainty for the family and impacted X’s access to education. The Council has agreed to apologise, make a symbolic payment and complete service improvements to remedy the injustice caused.

The complaint

1. Mrs B complained the Council has failed to adhere to the statutory timeframes for issuing an Education, Health and Care Plan for her child, X. Mrs B also complains the Council’s communication during the process has been poor and it failed to respond to her stage one complaint. Mrs B told us these faults have caused her stress and financial strain, and X has missed education. Mrs B would like the Council to be held accountable, keep to statutory timeframes and improve its communication.

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The Ombudsman’s role and powers

2. 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)
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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What I have and have not investigated

6. The Council issued a final amended Education, Health and Care Plan for X in October 2024. This final Plan had a right of appeal to the First-Tier Tribunal. In November 2024, Mrs B and the Council engaged in mediation which resulted in the Council agreeing to complete a reassessment of X’s needs. I therefore do not consider it reasonable for Mrs B to have submitted an appeal at this time.
7. Following a reassessment of X’s needs, the Council issued an amended EHC Plan in 2025. The final Plan issued in March 2025 continued to name the same secondary school placement as X’s previous Plans.
8. 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)
9. 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.
10. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
11. The same restrictions apply where someone had a right to appeal to the Tribunal and it was reasonable for them to have used that right.
12. The delivery of X’s section F provision is closely linked to whether the setting named was suitable for X’s needs. Mrs B had a right to appeal to the Tribunal if she disagreed with content and setting named in this Plan. For this reason, I have not investigated the Council’s actions in securing special educational provision after March 2025.
13. I have investigated the Council’s actions in completing the January 2024 annual review and the reassessment of X’s needs which was agreed in November 2024.
14. I have investigated the Council’s actions in securing the section F provision detailed in X’s EHC Plan when she was unable to attend school between January 2024 – March 2025.
15. I have investigated the Council’s communication with Mrs B between January 2024 and June 2025, when the final complaint response was issued.

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How I considered this complaint

16. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
17. Mrs B 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

Legal and administrative background

Education Health and Care Plans

18. 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. 
19. 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)  
20. 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. 

Annual review process

21. 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. Where the council proposes to amend an EHC Plan following a review, 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.
22. A parent or young person can request an early annual review at any time if they have good reason. There is no statutory duty for a Council to carry out an early annual review unless it believes it is reasonable to do so. The parent should contact the Council and request for a statutory review to be completed as soon as possible. If a review meeting is held without the Council having confirmed it agrees to the annual review being brought forward, the Council will not be required to review the EHC Plan, follow the legal process or keep to legal deadlines.

Reassessment of EHC Plans

23. 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.
24. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
25. 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.
26. 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.

Section 19 duty

27. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.

What happened

Background

28. The Council first issued an EHC Plan for X in April 2023. This Plan named a mainstream secondary school for X from September 2023.
29. X began the named secondary school in September 2023. From November 2023 X was unable to attend the named secondary school due to anxiety.

Annual review and reassessment

30. An early annual review meeting was held by the school in January 2024. The Council were not made aware this meeting was taking place. The Council was not invited to the annual review meeting or asked to provide evidence as part of the annual review.
31. The school did not send the Council the completed annual review paperwork until May 2024.
32. The council issued its decision letter and proposed draft Plan at the end of August 2024. The final amended Plan was issued at the beginning of October 2024.
33. Mrs B requested a reassessment of X’s education, health and care needs as she did not agree the Plan was reflective of X’s current needs.
34. The Council initially refused to carry out a reassessment but overturned this decision during a mediation meeting in November 2024.
35. In accordance with the statutory process the Council should have issued the final amended Plan no later than the second week of February 2025.
36. The Council completed the reassessment and issued a final amended Plan in the second week of March 2025. This is a delay of approximately one month.

Section 42 duty

37. In May 2024 the Council received the annual review paperwork which explained X’s difficulty in attending school. The paperwork explained X was not making expected academic progress as she had not attended school since November 2023. The paperwork listed a range of interventions the school had tried to reintegrate X into school but explains these had been unsuccessful.
38. As part of our enquiries the Council was asked to provide evidence it had considered its duty to provide X with access to the special educational provision detailed in her EHC Plans between January 2024 and March 2025.
39. The Council has not provided any evidence X received the special educational provision set out in section F of the EHC Plan between January 2024 and March 2025.
40. Between May 2024 and July 2024 X received two hours of tutoring per week. The Council has not provided any evidence it considered whether this tuition equated to suitable, full-time provision.
41. Council records from November 2024 show it was aware there was medical evidence dated July 2024, which explained X was unable to attend school. The Council records note that this evidence should have triggered its section 19 duty to provide alternative provision. Despite this being recorded in November 2024, the Council has not taken any action to secure alternative provision between November 2024 and March 2025.

Complaint handling

42. Mrs B submitted a stage one complaint to the Council in July 2024. In her complaint Mrs B raised concerns about the poor communication from the Council and the delays they had experienced with the EHCP processes.
43. The Council responded to this complaint at the end of July 2024.
44. In its stage one complaint response the Council upheld Mrs B’s complaint. The Council apologised Mrs B had not experienced the level of service it expects with regards to updates and communication.
45. Mrs B responded to the Council the same day and expressed her dissatisfaction as the poor communication remained ongoing despite the complaint.
46. The Council issued a stage two complaint response in September 2024. The Council upheld Mrs B’s complaint about poor communication, agreeing its level of communication had remained poor.
47. Mrs B submitted a further complaint to the Council in February 2025. The Council issued a stage one complaint response which upheld Mrs B’s complaint.
48. In response to our enquiries the Council told us it did not receive a request to escalate this complaint to stage two, however in response to Mrs B submitting a complaint the Ombudsman, the Council issued a stage two complaint response in June 2025. The stage two complaint response upheld that communication from the Council had remained poor following Mrs B’s earlier complaint.

My findings

49. The Council was not aware the school held an early annual review meeting in January 2024. Therefore, the statutory timeframe for completing the early annual review is not relevant for this review. However, as X’s previous EHC Plan was issued in April 2023, the Council did have a statutory duty to complete an annual review and issue a Plan by April 2024. The Council did not complete an annual review until October 2024. This is a delay of approximately 6 months. This delay is fault which caused X and Mrs B distress, frustration and uncertainty.
50. There was a 1 month delay in the Council completing the reassessment which was agreed in November 2024. This is fault which caused X and Mrs B distress, frustration and uncertainty.
51. The Council has failed to provide any evidence it considered its section 42 duty to provide X with the special educational provision detailed in her EHC Plan, or access to alternative provision, once it was made aware she was unable to access school in May 2024. This is fault. Based on the Council’s own records, which state the medical evidence it received in July 2024 should have triggered the Council’s duty to provide alternative provision, I find the Council’s failure to consider its section 42 duty meant X did not receive the special educational provision detailed in her Plan between May 2024 and June 2025. This is fault which resulted in a loss of educational provision for approximately 3 school terms.
52. There is no evidence of fault in the Council’s complaint handling between July 2024 and September 2024. The Council provided a stage one and stage two complaint response within a reasonable time frame.
53. There is no evidence of fault in the Council’s handling of Mrs B’s complaint submitted in February 2025. The Council issued a stage one complaint response. I have seen no evidence the complaint was escalated to stage two of the Council’s complaint process.

Action

54. Within one month of the final decision the Council will:
• Apologise to X and Mrs B for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
• Make a symbolic payment of £800 to Mrs B in recognition of the distress and frustration caused by the delay in completing the April 2024 annual review, November 2024 reassessment and poor communication during these processes.
• Make a further symbolic payment of £4,500 to Mrs B in recognition of the Council’s failure to consider its section 42 duty between May 2024 and March 2025 and the impact this had on X’s access to education. This is calculated at £1,500 per term of missed provision, in line with our guidance on remedies.
55. Within three months of the final decision the Council will:
• Remind its relevant staff of the Council’s section 19 duty to provide access to suitable, full-time education and its 42 duty to secure the special educational provision detailed in an Education, Health and Care Plans.
• Ensure it has a full process in place to allow its relevant staff to easily recognise when these duties are engaged.
• Ensure it has a suitable process in place for its staff to document when considerations are made which relate to the Council’s duties to provide access to suitable, full-time education and/or special educational provision.
56. The Council should provide us with evidence it has complied with the above actions.

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Decision

57. I find fault causing injustice. I have made recommendations to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman