Summary: Miss X complained the Council delayed issuing her child’s Education, Health and Care (EHC) Plan following an annual review. We find the Council was at fault for failing to issue the final amended EHC Plan within statutory timescales. This caused Miss X avoidable uncertainty and meant her child missed special educational provision. The Council will apologise and make a payment to Miss X.

The complaint

1. Miss X complains the Council delayed issuing her child, Y’s Education, Health and Care (EHC) Plan following a review. She also says the Council failed to consider her request for a personal budget.
2. Miss X says this has caused stress and uncertainty, and Y’s needs have not been met.

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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. 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).

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How I considered this complaint

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

Legislation and guidance

EHC Plan 

9. 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. 

Maintaining the EHC Plan

10. 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)  
11. 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.

Reviewing EHC Plans

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 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) 
13. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
14. 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.

Personal Budgets

15. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
16. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
17. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
18. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.
19. The council’s (and health commissioning body’s where relevant) duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.

What happened

20. Miss X’s child, Y, has had an Education, Health and Care (EHC) Plan since February 2023.
21. The Council held the annual review meeting in January 2024.
22. Following the annual review meeting, the Council received the paperwork from Y’s education setting in February. However, it did not issue its annual review decision or a final amended EHC Plan within the required timescales.
23. Miss X did not contact the Council during 2024 about the progress of the amended EHC Plan. She says she thought Y’s education setting was chasing the Council, and assumed the Council was progressing the annual review process.
24. In early February 2025, Miss X contacted the Council because she needed a copy of the EHC Plan for an application she was making. She was worried the amended EHC Plan had not been issued and did not appear on the Council’s system. She complained the delay meant Y had missed out on the correct support.
25. After Miss X complained, the Council issued a proposed amended EHC Plan and then the final amended EHC Plan in late February.
26. In March, the Council responded to Miss X’s complaint and apologised for not issuing the EHC Plan. It upheld her complaint, told her it had since issued the EHC Plan, and offered £400 to recognise the delay.
27. In late March, Miss X escalated her complaint. She said the February 2025 plan did not reflect Y’s needs at that time because it was based on outdated information from 2024. She also said the Council had not acknowledged her request for a personal budget to fund Speech and Language Therapy (SaLT).
28. The Council issued its final response in June. It confirmed it upheld Miss X’s complaint. It said it appeared the education setting had continued to implement the provision outlined in the original EHC Plan.
29. The Council noted Miss X was privately funding SaLT. It said Y had recently been allocated a new National Health Service (NHS) SaLT, who had agreed to liaise with the private therapist. The Council said it would share new SaLT advice as part of the next annual review process. It also said it was considering her request for a personal budget.
30. The Council repeated its offer of £400 as a remedy.
31. Miss X did not accept this remedy and brought her complaint to the Ombudsman.

Council response to enquiries

32. During our enquiries, the Council accepted it did not complete the EHC Plan process following the annual review. It said the caseworker responsible had since left the organisation. It said Miss X’s email was the first time it became aware the amended EHC Plan remained outstanding and said it took steps to promptly rectify the error.
33. The Council told us it could not explain why the amended EHC Plan was not issued after the annual review. It said it started the review process but did not complete or issue the proposed amended Plan. It explained it was dealing with high caseloads at the time and said its operating system does not alert staff to outstanding casework.
34. The Council provided a copy of the final amended EHC Plan. This set out specific SaLT provision, including the need for an individual programme for Y to be written and delivered daily within the education setting. The previous plan did not include this.
35. The Council also told us Miss X’s personal budget request came following the review meeting in June. However, it acknowledged it was considering the request in its final complaint response, which indicates it was aware of Miss X’s personal budget request earlier.

Analysis

36. The Council held Y’s annual review meeting in January 2024 and should have issued Y’s final amended EHC Plan within 12 weeks of the meeting.
37. The Council did not issue the final amended EHC Plan until February 2025, around 56 weeks after the annual review meeting.
38. This represents a delay of 44 weeks. This was fault. The Council accepted there was delay and could not fully explain this. It said contributing factors included high caseloads and its system not providing reminders. While this may explain the delay, it does not remove the Council’s legal responsibility to meet its statutory duties.
39. Y’s final amended EHC Plan sets out specific SaLT provision which was not specified in the previous Plan. If the Council had issued the amended Plan within the statutory timescales, Y could have accessed this support sooner. On balance, I find the delay caused Y to miss out on SaLT provision. The delay caused Miss X avoidable uncertainty and frustration and delayed her right to appeal.
40. Miss X said she had previously asked the Council to consider a personal budget but could not provide evidence of any earlier requests. The earliest evidence shows she submitted an application in February 2025, which the Council said in its complaint response it was considering. There is no evidence the Council made a clear decision on that request. This was fault. Miss X later submitted a further personal budget request in August 2025, which the Council considered and refused. There is no evidence an earlier decision on the February 2025 request would have led to a different outcome or caused Miss X a significant injustice. Therefore, I have not suggested an action on this point.
41. I have considered the Council’s offer of £400 to recognise the delay in issuing the final amended EHC Plan. Y received some support under the previous EHC Plan. However, she did not receive the added support set out in the final amended Plan during delay. I find the Council’s offer does not consider Y’s loss of special educational provision, including SaLT, during the 44-week delay. I therefore recommend the Council increases its payment by £450, making £850 in total.

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Action

42. To remedy the injustice caused by the above faults, within four weeks of my final decision, the Council will:
• Apologise to Miss X in line with our guidance on Making an effective apology
• Pay Miss X £850, to recognise the delay in issuing the final amended EHC Plan and the loss of special educational provision due to the delay. This payment will also acknowledge the avoidable uncertainty and frustration she suffered because of the delay.
43. I have not actioned a service improvement relating to delay, as the Council has evidenced it has an action plan in place following a SEND inspection, and has evidenced improvement in its service since the matters complained about.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. 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