Summary: Mrs B complained the Council has failed to update her son’s Education, Health and Care (EHC) Plan since the first annual review and its communication with her has been poor. There was fault by the Council. It did not meet statutory timescales during the annual review process and issuing of the amended final EHC Plan. It also did not take sufficient action to ensure provision was consistently secured for Mrs B’s son, as outlined in his existing EHC Plan. The Council’s communication with Mrs B was also poor. Because of the fault, Mrs B suffered distress, frustration, uncertainty, and her appeal right to the Tribunal was delayed. The Council has agreed to apologise to Mrs B, make symbolic payments, and issue staff briefings.

The complaint

1. Mrs B complains the Council has failed to update her son’s, who I will refer to as C, Education, Health and Care (EHC) Plan since the first annual review in June 2021. She also complains the Council’s communication with her has been poor.
2. Mrs B says C has missed out on an appropriate education as a result of his EHC Plan being out of date and not reflecting his current needs. She also says her and C’s mental health has been affected and she has suffered stress, anxiety and upset.
3. Mrs B would like the Council to update C’s EHC Plan to ensure he receives the appropriate support for his needs. She would also like the Council to improve its service and communication.

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The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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)
7. 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.
8. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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(1), as amended)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

11. I have investigated matters in this case from June 2024 when an annual review of C’s EHC Plan took place, to March 2025 when the Council issued an amended final EHC Plan for C. I reference matters outside of these dates for context.
12. I have not investigated:
• Any matters before May 2024. Mrs B complained to us in May 2025, so I consider any matters before May 2024 are late. I have seen no good reason Mrs B could not have complained to us about any matters before this date sooner.
• Any matters about the contents of C’s final EHC Plan issued in March 2025, or other related matters after this point. This is for the reason outlined in paragraph 6. Mrs B can, and has, appealed the contents of the EHC Plan to the SEND Tribunal.

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How I considered this complaint

13. I read Mrs B’s complaint and spoke to her about it on the phone.
14. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
15. 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

EHC Plan 

16. 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. 

Content of an EHC Plan

17. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

Reviewing EHC Plans

18. 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) 
19. 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.

Maintaining the EHC Plan

20. 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)  
21. 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. 

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What happened

22. This is a summary of events outlining key facts and it does not include everything that has happened in this case.
23. C was issued with an EHC Plan in August 2020. Section F of the EHC Plan detailed provisions including speech and language therapy (SaLT) activities, occupational therapy (OT) activities, and SaLT and OT training for staff at C’s school.
24. The Council reviewed C’s EHC Plan in June 2024. It issued its notice to amend the EHC Plan with an amended draft EHC Plan in August 2024. The Council issued further draft EHC Plans in October 2024 and January 2025. The Council issued the amended final EHC Plan in late March 2025. The final EHC Plan details provisions including a SaLT programme, OT support, and an OT handwriting programme.
25. Mrs B raised a complaint with the Council at the end of 2024 about the Council’s communication and its delay in updating C’s EHC Plan since it was first issued in 2020. The Council sent Mrs B its stage one complaint response in January 2025. It told her:
• It apologises for exceeding the statutory timeframe to issue the amended EHC Plan after the annual review.
• It had considered further amendments to the EHC Plan Mrs B had requested on several occasions, but the Council has discretion to decide what amendments will be made. The Council told Mrs B if she was dissatisfied with the contents of the final EHC Plan she could appeal to the SEND Tribunal.
• It apologises if Mrs B experienced difficulties in communicating with staff members, and the Council is committed to responding to all correspondence in a timely manner.
26. Mrs B raised a stage two complaint with the Council in February 2025. The Council sent her a stage two complaint response later that month which was similar to its stage one complaint response.

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Analysis

27. The Council has acknowledged, and it is clear from the documentation, there have been delays in this case. The Council did not write to Mrs B with its notice to amend the EHC Plan within four weeks of the annual review meeting. The annual review meeting took place on 24 June 2024. The Council sent its notification to amend to Mrs B on 28 August 2024 with the proposed amended EHC Plan. It also did not write to Mrs B with the amended final EHC Plan within eight weeks of the amendment notice. The Council issued the final EHC Plan on 24 March 2025. This is a delay of 27 weeks, or roughly six months.
28. The Council’s failure to meet the statutory timescales was fault and has caused an injustice to Mrs B. The six month wait delayed Mrs B’s right of appeal to the SEND Tribunal until it issued the final EHC Plan in March 2025 and has caused Mrs B distress and frustration. I have made a recommendation below to reflect this.
29. The final EHC Plan includes provisions such as SaLT sessions delivered by education staff and OT handwriting programme sessions. The provision detailed is almost the same as what is outlined in C’s previous EHC Plan. So, I do not consider, on balance, C missed out on receiving any new additional provision and support outlined in the amended final EHC Plan sooner because of the Council’s delay.
30. However, as outlined in paragraph 20, section 42 of the Children and Families Act requires councils to secure provision in section F of an EHC Plan. C had an existing EHC Plan in place while the Council was amending it following the annual review. So, while it was doing so, the Council still had a duty to ensure C received the provision outlined in his existing EHC Plan. In response to my enquiries, the Council told me while the evidence from the annual review meeting and the school’s consultation response confirms most of the provision was delivered, it acknowledges it was not consistently in place prior to it issuing the amended final EHC Plan. The Council told me it was aware of the difficulties the school faced in delivering C’s provision. But it did not take sufficient action to ensure consistent delivery of the section F provisions. This was fault, which has caused uncertainty about the level of provision C may have missed during this period, and around whether more could have been done during this period to ensure the provision was in place. I have made a recommendation below to reflect this.
31. The amended final EHC Plan was issued in March 2025, which gave Mrs B the right to appeal to the SEND Tribunal. As explained in paragraph 6, once an appeal right takes effect, we cannot consider matters which can be considered through an appeal to the SEND Tribunal. As Mrs B has used her right of appeal, we cannot consider matters after the point the appeal right came into effect. I have therefore only investigated and recommended remedies for matters up to the point the EHC Plan was issued in March 2025, as outlined above in paragraph 12.
32. The Council has explained the delay in finalising the EHC Plan following the annual review was primarily due to the volume and complexity of cases making it difficult to maintain timely progress. But it says it is taking steps to address these issues and improve its service delivery. This includes reviewing team capacity, improving workflow systems, and enhancing oversight of statutory deadlines. I have therefore not made service improvement recommendations in relation to the delays, as it seems the Council is already taking suitable steps through its action plan to improve its service. We will continue to monitor the Council’s progress through our casework.
33. The Council’s complaint responses told Mrs B it is committed to responding to all correspondence in a timely and efficient manner. However, Mrs B’s communication with the Council has been difficult. I have seen numerous emails Mrs B sent to the Council chasing it for a response or update during the process of it amending the EHC Plan. The Council’s communication was poor. Mrs B was already under significant pressure due to other failings by the Council, and its poor communication caused additional frustration. I have made a recommendation below to reflect this.
34. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
35. We have published guidance to explain how we calculate remedies for people who have suffered injustice because 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.

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Action

36. To remedy the outstanding injustice caused to Mrs B by the fault I have identified, the Council has agreed to take the following actions within four weeks of my final decision:
• Apologise to Mrs B for the injustice caused by the delays in the annual review process, the lack of action taken to ensure C was receiving section F provisions detailed in his EHC Plan, and its poor communication. This apology should be in accordance with our guidance Making an effective apology.
• Pay Mrs B £500 for the distress, frustration, and delayed right of appeal caused by the Council’s delays during the annual review procedure and issuing of the amended final EHC Plan.
• Pay Mrs B £250 for the uncertainty caused by the Council’s failure to ensure section F provision was consistently in place for C.
• Pay Mrs B £100 for the frustration caused by the Council’s poor communication.
37. Within three months of my final decision, the Council has also agreed to:
• Remind relevant staff of the importance of ensuring appropriate action is taken to ensure consistent delivery of section F provision for children with EHC Plans, where it is identified by the Council there are difficulties or inconsistencies with the provision being delivered.
• Remind relevant staff of the importance of good communication practices to ensure service users do not have to chase communication from the Council when they have not received a timely response.
• Provide us with an update about the steps the Council is taking to improve delays in its SEND service.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I uphold Mrs B’s complaint and find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman