Summary: Mrs X complained the Council failed to follow the correct process for completing an annual review of her child, Y’s, Education, Health and Care Plan. We find the Council at fault for a delay in issuing a final amended Education, Health and Care Plan following an annual review. This delay caused distress, frustration and uncertainty for Mrs X and her child. The Council has agreed to apologise and make a symbolic financial payment to remedy the injustice caused.

The complaint

1. Mrs X complained the Council failed to follow the correct process for completing an annual review of her child’s Education, Health and Care Plan, ignored her emails and phone calls, and failed to provide adequate support when her child was struggling to attend mainstream school. Mrs X told us she has lost her job due to needing time off to support her child and she feels she has been ignored and unsupported by the Council. Mrs X also told us her child’s mental health has been impacted. Mrs X would like the Council to find an appropriate setting for her child and a financial payment in recognition of the distress caused.

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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 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. I have not investigated the Council’s actions in completing school consultations as this is closely linked to the school named in section I of Y’s EHC Plan. Section I of an EHC Plan has a right to appeal which it was reasonable for Mrs X to use when the final Plan was issued in June 2025.
7. I have investigated the Council’s actions in securing the special educational provision detailed in Y’s EHC Plan between July 2024 and June 2025. I have also investigated the Council’s actions in completing the January 2025 annual review, its communication and complaint handling between June 2024 and June 2025.

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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

Legal and administrative background

EHC 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 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.
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)  
13. 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 reviews

14. 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) 
15. 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.

Council complaint policy

16. The Council has a two stage complaint process. At stage one the Council should deal with the complaint within 10 working days.
17. At stage two, the Council should deal with the complaint within 28 working days.

What happened

18. The Council first issued an EHC Plan for Y in August 2023.
19. An annual review meeting was held to review Y’s EHC Plan in July 2024. As part of this annual review process, Y’s attendance was noted to be at 95% and no concerns were raised about her attendance at the named school.
20. In December 2024 Mrs X contacted the Council to ask it to consult with a specialist setting with a view to naming it on Y’s EHC Plan. Mrs X also asked the Council to arrange an early annual review. I have seen no evidence which shows the Council were made aware of any attendance difficulties at this stage.
21. Y’s case officer responded to Mrs X’s emails, and they remained in regular communication until an early annual review meeting took place in January 2025.
22. During the January 2025 annual review meeting Y’s attendance was recorded to be above 90%. The annual review says Y’s ability to manage in a mainstream setting was declining but it does not detail any attendance difficulties.
23. In accordance with statutory timeframes for completing an annual review the Council should have issued a final amended EHC Plan by the first week of April 2025. The Council did not issue the final amended EHC Plan until the first week of June 2025.
24. In December 2024 Mrs X contacted her SEN caseworker to ask for the Council’s complaint policy. I have seen no evidence to confirm Mrs X received a response to this email.
25. Mrs X submitted a stage one complaint in March 2025. Mrs X contacted the Council over a month later to ask for an update on her complaint.
26. The Council issued a stage one complaint response at the end of April 2025 which partly upheld Mrs X complaint. Mrs X responded to the Council the same day to ask the Council to escalate her complaint to stage two.
27. The Council issued a stage two complaint response in June 2025.

My findings

28. There is no evidence of fault in the Council’s communication with Mrs X relating to the January 2025 annual review. The caseworker regularly responded to Mrs X’s emails and kept her updated.
29. There is no evidence of fault in the Council’s consideration of its section 42 duty to provide the special educational provision detailed in Y’s EHC Plan between July 2024 and June 2025. The information included in the July 2024 and January 2025 annual reviews do not indicate Y was unable to attend the school named on her EHC Plan. I have seen no evidence to suggest the Council had reason to believe Y’s special educational provision was not being provided through their attendance at school.
30. There was a 10 week delay in the Council issuing the final amended Plan following the January 2025 early annual review. This is fault which caused Mrs X distress and frustration and delayed her right to appeal.
31. At both stages of dealing with Mrs X’s complaint the Council delayed in providing its responses. At stage one there was a delay of approximately 20 days. At stage two there was a delay of approximately 8 days. This is fault which caused Mrs X distress and frustration.

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Action

32. Within one month of the final decision the Council will:
• Apologise to Mrs X for the injustice caused by 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 £500 to Mrs X in recognition of the injustice caused by the delay in issuing the final Education, Health and Care Plan and the delays in complaint handling.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman