Summary: Mrs X complained the Council failed to secure suitable education provision for her child, Y. The Council delayed issuing Y’s amended Education, Health and Care Plan for 21 weeks following an annual review. This caused Mrs X frustration, uncertainty and delayed her right of appeal to the Tribunal. The Council has already remedied the injustice caused to Mrs X.

The complaint

1. Mrs X complained the Council failed to secure a suitable education provision for her child, Y. Mrs X said the Council did not complete the annual review for Y’s Education, Health and Care (EHC) Plan early. This meant the provision was not in place for the start of the school year, when Y became compulsory school age.
2. Mrs X said this caused her stress and uncertainty, and Y did not have a school place for September 2025. Mrs X said this could mean her and her husband will have to reduce their working hours to care for Y. Mrs X would like the Council to show it has listened to her. If the Council provides a school placement through a tribunal, then she would like the Council to compensate her.

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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. 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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6).
7. We also cannot investigate a complaint if someone has appealed to a tribunal about the same matter or if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended).
8. 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.
9. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
10. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
11. Part of Mrs X’s complaint is that the Council has failed to provide Y with an education and secure the provision in their EHC Plan from September 2025. We cannot investigate this part of Mrs X’s complaint as the Council has not had an opportunity to respond to this complaint. Even if we decided it would be unreasonable to notify the Council of the complaint we could still not investigate as Mrs X has appealed Y’s EHC Plan to the Tribunal. I have investigated events between May 2024 and June 2025.

How I considered this complaint

12. I considered evidence provided by Mrs X and the Council, as well as relevant law, policy and guidance.
13. Mrs X and the Council have 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

The Law

Education, Health and Care (EHC) Plans

14. 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. 
15. 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).
16. 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.
17. The council must review and amend an EHC Plan in enough time before a child or young person moves between key phases of education. 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 key transfers include a child’s transition from early years provider to school.

What happened

18. Y had an EHC Plan which the Council issued in June 2024. The Plan said Y would attend a mainstream school setting from September 2025, after Mrs X decided to defer Y’s start date until September 2025. Mrs X said this was because she did not feel a mainstream setting could meet Y’s needs.
19. Mrs X asked for an early annual review in or around October 2024 to make sure the Council could review and amend Y’s EHC Plan before the deadline on 15 February 2025. The Council held an annual review meeting on 3 October 2024.
20. The Council issued a draft of Y’s amended EHC Plan on 23 April 2025. The same day, Mrs X complained to her MP that Y may not have a school place in September 2025 as the Council delayed completing Y’s annual review paperwork. The following week, the Council told Mrs X it had received concerns from the MP, and it had recorded these as a complaint.
21. The Council responded to Mrs X’s complaint and apologised for not quickly processing Y’s paperwork from the annual review in October 2024. It accepted it had missed the four-week statutory timescale after the annual review to decide whether to maintain or amend Y’s EHC Plan. The Council offered to pay Mrs X £300 for the delay and £200 for the distress and frustration it caused Mrs X.
22. On 22 May 2025, the Council issued Y’s final amended EHC Plan. It did not name a specific school in the EHC Plan but specified specialist provision for Y.
23. In late May 2025, Mrs X told the Council she did not accept the suggested payment remedies, and she wanted to escalate her complaint to stage two. The Council responded that if Mrs X was unhappy with its complaint response, she could challenge the EHC Plan through the Tribunal. Mrs X appealed the lack of named school in the EHC Plan to the SEN Tribunal and complained to the Ombudsman in June 2025. Y turned statutory school age in June 2025.

My findings

24. The Council has accepted it did not issue its decision to amend Y’s EHC Plan within four weeks of the annual review meeting on 3 October 2024. This was fault. The Council should then have issued Y’s amended EHC Plan within eight weeks of its decision to amend the Plan, by 26 December 2024. The Council did not issue the final amended EHC Plan until 22 May 2025. This was also fault, resulting in a total delay of 21 weeks and the Council failing to issue the EHC Plan before 15 February in the year Y was due to move between phases of their education. The Council also accepted it failed to keep in contact with Mrs X during that time. This was fault.
25. The delays following the review caused Mrs X frustration, uncertainty and delayed her right of appeal to the Tribunal. Mrs X says Y missed out on an education and their special educational needs because of the delay by the Council. Y turned statutory school age in June 2025 and was due to start school the following term in September 2025. I have not investigated events from September 2025 for the reasons set out in paragraphs six to eleven.
26. The Council’s apology and proposed payment of £500 is in line with our guidance on remedies. It reflects the frustration and uncertainty the Council’s delay caused Mrs X. It also reflects it delayed Mrs X’s right of appeal to the tribunal. The Council has agreed to repeat its offer to pay Mrs X £500.
27. The Council had an action plan in place to improve its EHC Plan process. This included recruiting and training new practitioners. The Council’s action plan was expected to improve the service by September 2025, so it would have been in the process of this during the events of this complaint. Because the Council was already taking reasonable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Decision

28. I find fault causing injustice which the Council has already remedied.

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Investigator's decision on behalf of the Ombudsman