Summary: Mrs X complained the Council failed to issue her child, Y’s final Education, Health and Care (EHC) Plan following an annual review within statutory timescales which caused a delay in Y receiving Occupational Therapy (OT) provision. The Council was at fault. It delayed issuing Y’s amended EHC Plan by 27 weeks following an annual review. It also meant Y lost the opportunity to receive specialist OT provision in the Plan between February and July 2025. The Council agreed to apologise to Mrs X and make payments to recognise Y’s loss of OT provision and the distress and uncertainty caused to her.

The complaint

1. Mrs X complained about delays in the Education, Health, and Care (EHC) Plan annual review process for her child, Y. She said the Council failed to issue a final amended EHC Plan after an annual review in November 2024 within statutory timescales.
2. Mrs X says the matter has caused her distress, frustration and uncertainty. She also says the faults have caused Y to lose out on sensory occupational therapy provision.

Back to top

The Ombudsman’s role and powers

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. 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.
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

7. I have investigated Mrs X’s complaint about the Council’s handling of the EHC Plan process for Y from November 2024 when the annual review took place until August 2025 when the Council issued Y’s amended EHC Plan.
8. I have not investigated matters which have happened after August 2025. This is because these are new, and the Council has not had the opportunity to respond through its complaints process. Further, any disagreement about the content of the EHC Plan is appealable to the SEND tribunal.

Back to top

How I considered this complaint

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

Back to top

What I found

Relevant law and guidance

EHC Plans

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 the council can do this.
12. 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 
13. 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)

SEND tribunal

14. 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.
15. There is a right of appeal to the Tribunal against the 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.

Annual reviews

16. 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.
17. Where the council proposes to amend an EHC Plan, the Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within 4 weeks of the annual review meeting. The council must then issue any final amended plan within 8 weeks of the amendment notice. This means a final plan must be issued within 12 weeks of the review meeting.

What happened

18. Y has had an Education Health and Care (EHC) Plan since 2024. An annual review of Y’s EHC Plan took place in November 2024 after transition from early years to mainstream provision.
19. The annual review highlighted there was a shared professional agreement a sensory Occupational Therapy (OT) assessment was needed for Y.
20. Following the review, the Council contacted Mrs X about the sensory OT assessment for Y.
21. Mrs X contacted the Council and advised it of a primary special school she would like consulting. She contacted the Council again in December 2024 and twice in January 2025 but did not receive a reply.
22. In February 2025 Mrs X complained to the Council, she said:
• she had not received any communication from the Council despite calling and emailing weekly;
• Y’s case worker had been changed multiple times, and she had not been notified of these changes; and
• Y’s need for sensory OT and regular speech and language therapy (SLT) were not being met, preventing educational progress.
23. In its response the Council said:
• it apologised for poor communication;
• it acknowledged several case worker changes had taken place, this was communicated through its EHC hub;
• it apologised that it had yet to formally respond to Y’s annual review;
• requests from Y’s school for additional funding and a private OT assessment were being considered; and
• it would consult with Y’s school to establish if a referral back to SLT was needed, review the timescale for an OT assessment, consult with Mrs X’s preferred school and respond to email communications within 5 days.
24. Mrs X escalated her complaint. She said despite the Council’s reassurances, Y’s EHC Plan had not been finalised, disadvantaging Y.
25. The Council said:
• a referral back to SLT had been completed;
• a decision to amend Y’s EHC Plan had been made on the 21 March, as had agreement to fund a private OT assessment. The assessment was due for completion in May;
• consultations had happened with schools, including Mrs X’s parental preference; and
• a draft plan had been issued.
26. The OT assessment was completed in June. The Council decided the OT provision to be included in Y’s EHC Plan, this was:
• nine hours of OT support to train staff to ensure therapy strategies are embedded into Y’s school day;
• daily 1:1/ small group sensory circuits and movement breaks guided by an occupational therapist; and
• a 1:1 multi-sensory and fine motor skills programme provided twice daily.
27. The Council issued Y’s final amended EHC Plan in August 2025 naming a mainstream school as Y’s placement. Changes in content, including the provision in section F remained largely the same to the provision Y was already receiving. Mrs X was provided with her appeal rights to the SEND tribunal.
28. The Council reissued Y’s final plan in late August and again in mid-September 2025.
29. Mrs X remained unhappy with the Councils response and asked the Ombudsman to investigate. She said the delays and lack of communication had caused distress to the family and caused Y to lose out on education, social support, progression and development.
30. Mrs X appealed section B, I and F of Y’s EHC Plan to the SEND tribunal. The Council have since named and agreed a specialist school for section I, which Y now attends. Mrs X continues to appeal sections B and F.

The Council’s response to us

31. The Council accepted it delayed completing the 2024 annual review within statutory timescales which delayed Mrs X’s right of appeal.
32. It said changes to the EHC Plan were refinements in wording and the only new provision was sensory occupational therapy.
33. The Council accepted communication had not met expected standards and Mrs X’s case had not been progressed as quickly as it should.
34. It offered to pay Mrs X £350 in recognition of the delay to the annual review process and a further £350 to acknowledge the frustration, distress, delayed appeal rights and poor communication.

My findings

Annual review delays

35. Following the annual review in November 2024 the Council should have issued a decision to amend letter within four weeks. It did not do so until March 2025, a delay of 18 weeks which was fault.
36. After deciding to amend Y’s EHC Plan the Council should have issued the amended EHC Plan by the 5 February 2025. The Council did not issue the amended EHC Plan until August 2025, an overall delay of 27 weeks. That was fault and caused Mrs X frustration, uncertainty and delayed her right of appeal to the SEND tribunal.
37. It is open for Mrs X to appeal to the SEND tribunal if she has any dispute about the content of the EHC Plan issued in August 2025 and the subsequent reissues.

Occupational therapy assessment

38. It is clear from the annual review records in November 2024 that there was a professional agreement that Y required an assessment. Further, the Council contacted Mrs X shortly after the review to start arrangements for this. Therefore, the OT assessment should have been completed within the 12-week statutory timescale in order for any provision to be included in the final Plan which should have been issued by February 2025.
39. The Council did not fund a private OT assessment for Y until March 2025, four months after the annual review. The assessment was not completed until June 2025. The delays meant Y’s OT provision was not included in their EHC Plan until August/September 2025.
40. On balance, had OT assessment had been completed without delay, OT provision would have been incorporated into an earlier EHC Plan and would have been in place for Y much earlier.
41. The delays in both completing the OT assessment and issuing the amended EHC Plan meant Y lost the opportunity to receive OT provision for one and a half terms between February 2025 (statutory completion of the EHC Plan after annual review) to August 2025.

Communication

42. The Council has acknowledged it poorly communicated with Mrs X after Y’s annual review. This caused Mrs X distress and uncertainty. The Council apologised and set actions for improvement which is appropriate.
43. The Council has already agreed to undertake work on improving the EHC Plan review process after the Ombudsman upheld other cases. For this reason, I have not made further service improvement recommendations here as we will monitor compliance of and the impact of these changes through our casework.

Back to top

Action

44. Within one month of the final decision the Council has agreed to take the following action:
1. Apologise in writing to Mrs X to acknowledge the injustice caused by the faults identified. We publish guidance on remedies which sets out our expectations for how organisation should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Pay Mrs X £900 (£600 per term) to acknowledge Y’s loss of occupational therapy provision for one and a half terms as a result of the 27 week delay in issuing Y’s amended EHC Plan following the annual review in November 2024.
3. Pay Mrs X £350 to acknowledge the uncertainty, frustration, and impact on her appeal rights she experienced as a result of the Council’s failure to adhere to the Education, Health and Care Plan statutory process and timescales.
45. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

46. I have completed the investigation with a finding of fault causing injustice by delays in the EHC Plan annual review process. The Council agreed to my recommendations to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman