Summary: There was a delay of over nine months in completing an annual review of a child’s Education, Health and Care Plan. This delayed a decision whether the child could move schools and denied the family a right of appeal for this period. The Council has agreed to make a symbolic payment of £500 to acknowledge the time, trouble, uncertainty and distress caused by the excessive delay. The complaint is upheld.

The complaint

1. Ms X complains about delay in finalising her child’s Education, Health and Care (EHC) Plan and delay considering a request for a change of placement.

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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 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)
4. 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)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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 delay in finalising the EHC Plan. I have not considered whether the named placement is appropriate, this decision has a right of appeal to the Tribunal which we would expect Ms X to have used. Only the Council or Tribunal can change the placement on an EHC Plan.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
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 found

Relevant law and guidance

11. 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 council can do this.

12. 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 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) 
13. 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.
14. If the child’s parents or the young person disagrees with the content of the final EHC Plan, they can appeal this to the Tribunal.

Factual background

15. An annual review meeting for Ms X’s child’s EHC Plan was held in Spring 2024. Ms X asked for a change of school. Ms X set out reasons why she considered the current school was not suitable.
16. Ms X chased the Council several times after the meeting.
17. The Council issued a draft amended plan seven weeks after the meeting.
18. Ms X provided information about additional diagnoses for her child in Summer 2024.
19. Ms X continued to chase the Council but was told no decision about placement would be made in time for the new school year.
20. Ms X made a formal complaint about delay in late August.
21. The Council replied in September that Ms X’s preferred school could not offer a place, but the existing school had confirmed it could meet need, therefore the Council would be continuing the current placement.
22. Ms X asked for her complaint to go to stage two as she did not consider all information had been considered. Ms X again asked to change placement.
23. A further review meeting was held in early October 2024.
24. Ms X chased the Council for a reply in late October.
25. The Council replied to the stage two complaint in December 2024. It said it was still considering the annual review report from October 2024. It apologised for delay completing the Spring 2024 review.
26. Ms X complained to us in March 2025.
27. The Council issued a final amended EHC Plan, naming the existing school, 12.5 months after the Spring 2024 review meeting. Ms X has not appealed the final Plan as, although she told us she does not agree with the decision, she says she felt too exhausted after dealing with months of difficulties with the Council and supporting her child.

Analysis

28. An annual review meeting was held in Spring 2024. The Council had to decide whether to amend, cease or keep the EHC Plan the same within four weeks. It did not make a decision for seven weeks, a three week delay. This was fault.
29. The Council’s decision was to amend the EHC Plan. It should have issued the draft within four weeks of the review meeting, it issued it after seven weeks, this was fault.
30. The Council should have issued a final amended EHC Plan within twelve weeks of the Spring 2024 review meeting. It did not issue the final Plan for 12.5 months. This was excessive delay and was fault. During this period Ms X and her child had the uncertainty of whether their request to move schools would be agreed.
31. Ms X was denied a right of appeal for over nine months. However, I note Ms X did not use the appeal right when it was provided. Ms X says this is because she became exhausted by the process.
32. The Council held a second review meeting in October 2024, during the period it was already supposed to be amending the Plan. It again missed both the four- and twelve-week timeframes for making a decision and issuing the amended final Plan after this meeting.
33. The delay has put Ms X to additional time, trouble, uncertainty and distress alongside the demands of supporting a child with special educational needs.
34. The Council has apologised for delay, however given the delay was over nine months I consider a symbolic payment to acknowledge the impact of this delay is merited.
35. The Ombudsman has already raised issues with delays in annual reviews with the Council in previous investigations and recommended actions to address this. I have not therefore made further service improvement recommendations, as these should already be in hand.

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Agreed Action

36. Within four weeks of my final decision, the Council will pay Ms X £500 to acknowledge the impact of delays after two annual review meetings, and a cumulative delay of over nine months.
37. The Council will provide us with evidence it has complied with the above action.

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Decision

38. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman