Summary: Mrs X complained the Council delayed issuing her child, Y’s Education, Health and Care (EHC) Plan following an annual review (AR) in July 2024, ahead of Y’s transfer year in 2025. The Council was at fault. It delayed issuing Y’s EHC Plan by four months following the July AR. The Council agreed to apologise and make a payment to Mrs X and Y to recognise the distress and uncertainty the delay caused.

The complaint

1. Mrs X complained the Council delayed amending her child, Y’s Education, Health and Care (EHC) Plan following an annual review in July 2024, ahead of Y’s 2025 transfer year. She said the Council also delayed naming a school in Section I of the Plan and communicated poorly throughout the process. She said the Council failed to take the family’s views into account, resulting in inaccuracies in Y’s Plan.
2. Mrs X said the inaccuracies in the plan led their preferred school to decide it could not meet Y’s need and the delay caused uncertainty about Y’s future school placement. This caused Y and the wider family avoidable distress. She wants the Council to correct inaccuracies in the plan, reconsult with her preferred school, secure a suitable placement, and improve its service.

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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. 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. 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.
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)
7. 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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How I considered this complaint

8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. Mrs X 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

Relevant law and legislation

Education, Health and Care Plans

10. 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.
11. 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. 
12. 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).

Annual Reviews

13. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. 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.
14. The council must review and amend an EHC Plan in enough time before to a child or young person moved between primary school to secondary school. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases.

The Council’s complaint handling policy

15. The Council operates a two- stage complaints process
• Stage 1: The relevant service’s Complaints Officer carries out an initial investigation. The Head of Service acts as the designated officer for that service, ensuring the complaint is reviewed fairly and thoroughly. The Council aims to respond within 20 working days of receipt.
• Stage 2: If the complainant remains dissatisfied, the complaint can be escalated to a more senior manager or a different manager who conducts a full review and provides a comprehensive response. The Council generally aims to respond within 20 working days of escalation.

SEND tribunal

16. 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.
17. There is a right of appeal to the Tribunal against a council’s 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 in their EHC Plan.

What happened

18. Mrs X has a child, Y who has special educational needs and disabilities. Y has a diagnosis of autism and suffers with mental health issues including anxiety. Y has an EHC Plan which outlines specialist provision they are entitled to. Y attended a specialist primary school and was due to transfer to secondary school in September 2025.
19. In July 2024 Y’s school carried out their transitional AR. The Council was invited but did not attend.
20. In December 2024 it sent a draft EHC Plan to Mrs X asking her to comment on the draft within 15 days.
21. In early January 2025 the Council contacted Mrs X asking for her comments on the Plan. She asked the Council to consider an extension to the deadline as she was unable to review the plan due to needing to supervise Y over the Christmas holidays while they were out of school. She further said school professionals she wanted to consult with about the draft plan were also off during the school holiday time and could not be contacted. In her response Mrs X informed the Council of her preferred school placement for Y.
22. The Council said it was unable to extend the deadline as it was working towards the statutory deadline which requires it to amend the Plan by mid-February 2025. It acknowledged Mrs X choice of preferred school placement for Y.
23. In February the Council issued Y’s final amended EHC Plan, naming ‘a specialist school’ as placement in Section I. It did not name a specific school. Mrs X told us she made no comments on Y’s final amended EHC Plan.
24. A week later, Mrs X contacted the Council, expressing a number of concerns about the Plan. She asked why a school placement had not been included. The Council explained that it was unable to complete Section I at the time but would update it as soon as possible. The Council also informed Mrs X that, as the Plan was in its final version, no further changes could be made at that stage. Any amendments would need to be addressed through a future AR process.
25. Mrs X asked why the Council had not named her preferred school for Y. The Council said it consulted the preferred school, but it could not meet Y’s needs so it was now consulting with other schools. When Mrs X contacted the preferred school directly, it confirmed it could not provide the required 1:1 support which is stated in the Plan.
26. In March 2025, Y’s father, Mr X contacted the Council and, after receiving no response, submitted a formal complaint. He complained the Council had failed to name a school in Section I of Y’s EHC Plan and that its communication with the family had been inadequate. He also noted the draft EHC Plan had been sent only to Mrs X in December 2024, preventing him from providing comments. Additionally, he disputed the EHC Plan’s reference to Y requiring 1:1 supervision, stating this was inaccurate.
27. The Council responded to Mr X in May 2025. It apologised for being unable to name a school in Section I of the Plan in February, explaining that it was still consulting with schools and had not yet secured a placement. The Council confirmed it would issue a final, amended EHC Plan once it could name a school. It also reminded Mr X that by issuing the final amended Plan in February, it had fulfilled its legal duty and ensured the family had access to mediation and the option to appeal to the Tribunal if they disagreed with the Plan’s contents.
28. Mr X escalated his complaint to stage two, saying the Council had not fully addressed his concerns. After receiving no response for several weeks, he requested an update. The Council told him there was a delay in sending him its response, but he could escalate the matter to us, which Mr X did in May 2025.
29. Following our enquiries, the Council sent Mr X its stage-two complaint response in July 2025. It apologised for sending the December 2024 draft EHC Plan only to Mrs X. The Council also clarified the final EHC Plan did not state Y required 1:1 support throughout the day; rather, it specified that Y needed a high level of support, with the Plan outlining the particular circumstances in which this would be necessary.
30. The Council issued Y’s final, amended EHC Plan at the end of July 2025, naming a school in Section I. This was not the school the family had identified as their preferred option in January 2025.

My findings

Annual Review delays in transfer year

31. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
32. The Council carried out Y’s annual review in July 2024 and met the overall statutory deadline of 15 February 2025 for reviewing and amending the Plan in a transfer year. However, after an annual review, councils must issue the final amended EHC Plan within 12 weeks.
33. The Council should have issued Y’s final amended Plan by early October 2024, but it did not do so until mid-February 2025. This was a delay of four months outside statutory timescales which was fault. The delay caused Mrs X and Y avoidable frustration. Had the Council issued the final amended EHC Plan in October 2024, Mrs X would have had more time to review the draft Plan and provide her comments.
34. The Council has an ongoing SEND improvement plan which is addressing delays in reviewing EHC Plans and delays in its complaints handling process. We will continue to monitor progress of this through our casework and so, further service improvement recommendations are not required at this time.

Not naming Y’s preferred school in Section I

35. When the Council issued Y’s final amended EHC Plan it did not name a specific school in Section I. The Council consulted with the family’s preferred school, however the school decided it could not meet Y’ needs. The Council consulted with further schools until it identified another school which it named in Y’s amended final EHC Plan it issued in July 2025.
36. Mrs X told us the February Plan had inaccuracies and did not meet Y’s needs. The law says we cannot investigate complaints when someone had a right of appeal to the Tribunal. If Mrs X was unhappy about specific contents of Y’s Plan or the school placement in Section I she could have used her right of appeal to the SEND tribunal.

Poor communication and complaint handling

37. We reviewed several email exchanges between the Council and Mrs X and found the Council generally responded within a reasonable timeframe. However, there were delays in the Council’s complaint-handling process. In its stage two response, the Council partially upheld Mr X’s complaint and apologised for any emails it may have failed to answer. It also offered to revisit any missed correspondence if Mr X brought those messages to its attention.
38. The Council delayed responding to Mr X’s complaints in line with its policy at stage one and two which was fault. This caused Mr X avoidable distress. The Council apologised for its delays in its complaint responses to Mr X which is suitable to remedy the injustice caused.

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Actions

39. Within one month of the final decision the Council agreed to apologise to Mrs X and pay £200 in recognition of the uncertainty caused by the Council’s delay in issuing Y’s EHC Plan between October 2024 and February 2025. 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 the apology I have recommended.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. I have found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman