Summary: Miss X complained about the Council’s delays with completing the annual review process of her child’s, Y, Education, Health and Care Plan. Miss X also complained about the Council’s failure to provide Y with the provision set out in his Plan. There was fault by the Council which caused injustice to Y and Miss X. The Council will take action to remedy the injustice caused.

The complaint

1. Miss X complained the Council:
1. delayed completing the annual review process of Y’s Education, Health and Care (EHC) Plan following the review meeting held in March 2025
2. failure to provide Y with the provision set out in Section F of his EHC Plan.
2. Miss X said as a result, Y lost out on provision and support and that the matter affected his well-being. Miss X said the matter also caused her distress, affected family time with no respite for her due to the amount of attention and support she had to provide to Y.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
5. 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.
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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What I have and have not investigated

8. My investigation into Miss X’s complaint should end in August 2025 (when the Council issued its final response to Miss X’s complaint). But I have exercised discretion to extend my investigation until June 2026 when Y’s final EHC Plan was issued after the March 2025 annual review meeting. This is because it was an ongoing issue and we consider it unreasonable to direct Miss X back to the Council to make another complaint about the same issues.
9. Therefore, I have investigated matters from March 2025 to June 2026. This covers the period from when the annual review of Y’s EHC Plan was held to when the Council issued his final Plan.

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How I considered this complaint

10. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
11. 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

Education, Health and Care Plans

12. 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.
13. The council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person (section 42 of the Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
14. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The review process includes a review meeting, and the subsequent decision, which have appeal rights.
15. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or cease the EHC Plan. Where the decision is to amend the EHC Plan, the council must then issue any final amended Plan within eight weeks of the ‘amendment notice’. Therefore, a final EHC Plan must be issued within 12 weeks of the review meeting.
16. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final Plan is issued.
17. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal.
18. 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). The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.
19. The Council’s Education, Health and Care (EHC) Hub manages SEND assessments, plans, and reviews, allowing families and professionals to collaborate transparently.
20. The Council has a two-stage complaints procedure, and its responses should be issued within 20 working days.

Background

21. Miss X’s child, Y, has some health conditions and special educational needs (SEN).
22. Y attends School 1 and he has an Education, Health and Care (EHC) Plan. Some of the provisions set out in Y’s final EHC Plan which was issued in 2024 included:
1. a specific and regular communication intervention that supports the development of Y’s non-verbal communication skills and understanding such as a social communication skills package (30 minutes per week).
2. frequent movement-breaks to allow Y to refresh and refocus on the task in hand. Provide a laptop to complete lengthy pieces of writing.
3. time to talk about anything that is making Y anxious or stressed with key adult/s to discuss any issues to reduce his anxiety (20 minutes per week).
4. a key adult to facilitate a ‘meet and greet’ every morning with Y to ally his anxieties and fears about the day to ensure he is regulated for learning. Use of evidence-based programmes and resources by adults working with Y to develop his emotional regulation and social skills.
5. support to engage with appropriate therapeutic methods to help Y to learn to better understand and manage difficult feelings.
6. structured time to discuss alternative strategies for resolving conflict (30 minutes per week)
7. specific teaching and reinforcement so that he learns to identify dangers in his environment and learn how to keep himself and others safe (20 minutes per week).
23. Miss X said Y did not receive any of the above SEN provision since his 2024 final EHC Plan was issued.

Key events

24. School 1 arranged an annual review meeting of Y’s Education, Health and Care (EHC) Plan for mid-March 2025.
25. In early March, Miss X said she spoke with School 1 about her concerns that Y was not receiving the provision in his EHC Plan and asked how the Council ensured the provision were secured and provided to him. Miss X sent a follow-on email to School 1 about her concerns which she said was also uploaded on the Council’s EHC Hub.
26. On 17 March, School 1 held Y’s EHC Plan annual review meeting with Miss X and Y’s father in attendance. Miss X said she raised her concerns about the delivery of Section F provision to Y and that School 1 said Y ‘masked his emotions and behaviour’ which she disagreed with. Miss X said she explained the challenges Y faced due to his health conditions and what strategies she used to support Y. The Council did not attend the meeting.
27. School 1 sent a copy of Y’s teachers’ reports to the Council which indicated his progress, positive attitude towards learning and his struggle to stay focused on tasks. It also sent the Council the annual review report. School 1 acknowledged Miss X’s concerns and it explained the reasons for the level of support it provided to Y and the steps it would take to address her concerns moving forward. The annual review report stated:

• Y was making progress in his learning and development, so, there was no immediate concern, and no additional intervention was required.
• School 1 had provided Y with continued support based on promoting his independence and ensuring that his needs were being met through differentiated and inclusive teaching strategies.
• School 1 was open to working closely with the Council to ensure that Y received the support that would help him thrive.

28. The Council did not issue its decision letter after the review meeting to inform Miss X whether it wished to maintain, amend or cease Y’s EHC Plan.
29. On 28 March, Miss X made a formal complaint to the Council about its failure to provide Y with the provisions in his EHC Plan. Miss X asked the Council to confirm what steps it would take to ensure Y received the SEN provision in his EHC Plan.
30. In mid-April, an internal email by School 1 showed it agreed to allocate a laptop to Y and to give him a dedicated contact detail which he could use to communicate with relevant staff if required.
31. Another internal email in June showed School 1 raised concerns about putting in place the ‘meet and greet’ provision in Y’s EHC Plan particularly about the potential impact it would have on other children that were also supported by the key adult and that it was unable to provide the sessions. School 1 confirmed Y attended animal therapy, received support across his subjects and it had arranged training for the laptop allocated to him.
32. School 1 also had a provision map for Y which set out an overview of the provision it provided to him. This included animal therapy sessions, emotional literacy sessions, teaching assistant support in lessons and access to a laptop. Miss X said some of the provision in the document were struck off which indicated such provision had been taken out without informing her.
33. In April and June, Miss X chased the Council for its response to her complaint. When the Council did not respond to her complaint, Miss X made a complaint to the Ombudsman.
34. On 20 August, the Council issued its response to Miss X’s complaint and it:

• said the information in the annual review report indicated Y had been making progress at school and that School 1 did not identify or request additional provision for Y beyond what was already on offer.
• said School 1 stated that during the preparation and at the annual review meeting, Miss X did not raise her concerns with it until she made a formal complaint to the Council.
• accepted there were delays with completing the March 2025 annual review process and with issuing its response to Miss X’s complaint
• apologised to Miss X and paid her a financial remedy of £800 for the delays.

35. Y continued to attend School 1, received education and some of the provision in his EHC Plan between March 2025 and June 2026.
36. On 12 June 2026, the Council issued Y’s final EHC Plan. The provision set out in Section F remained the same and School 1 remained the named setting. Miss X said the Council did not issue her a letter advising her of the right to appeal the final Plan to the Tribunal.
37. The Council informed Miss X that it:

• would contact School 1 to ensure the provision in Y’s EHC Plan was being appropriately implemented
• said it would arrange an annual review of Y’s EHC Plan
• recommended that School 1 should refer Y to the Council’s advisory program to provide additional professional advice to support the need for further amends for Y’s EHC Plan.

Analysis

Annual Review Process and Complaint Handling

38. The Council’s decision letter should have been issued on 14 April 2025 (4 weeks after the review meeting) as to whether it decided to maintain, amend or cease Y’s EHC Plan. The Council did not issue its decision letter after the annual review meeting in line with statutory guidelines. This was fault and it caused uncertainty to Miss X.
39. Also, the Council should have issued Y’s final EHC Plan on 9 June 2025 (12 weeks after the review meeting). It did not issue Y’s final Plan until 12 June 2026. This was a significant delay of approximately 53 weeks, and it was not in line with statutory timescales. This was fault.
40. There was further fault by the Council for its failure to issue Miss X with a letter accompanying the final EHC Plan advising her of her right of appeal to the Tribunal. This was fault.
41. The Council’s failings in how it handled the annual review process of Y’s EHC Plan caused distress, frustration and uncertainty to Miss X. It also delayed and denied Miss X of her appeal rights had she wished to have exercised them.
42. However, I do not find the Council’s delays caused any specific injustice to Y. This is because the SEN provision set out in Section F of the final EHC Plan issued in June 2026 was the same as what was in his previous Plan.
43. There were also delays with the Council’s complaint handling. The Council did not issue its final response to Miss X’s complaint until after the Ombudsman’s involvement. It took the Council approximately five months to deal with Miss X’s complaint (March 2025 – August 2025). This was fault and it caused Miss X distress and the time and trouble chasing an outcome of her formal complaint.
44. I acknowledge the Council already accepted fault for its delays with the annual review process of Y’s EHC Plan and its complaints handling. The Council apologised to Miss X and made her a financial payment of £800 to acknowledge the injustice caused to her because of its delays from March 2025 to August 2025. This is welcome. However, the £800 financial remedy the Council offered and paid to Miss X for the above period is higher than what the Ombudsman would have recommended in line with our guidance on remedies. For this reason, I will not recommend an additional payment for the injustice caused to Miss X by the Council’s delays from September 2025 to June 2026.

SEN Provision set out in Section F of Y’s EHC Plan

45. The Council’s legal duty to secure the provision set out in Section F of Y’s EHC Plan under Section 42 of the Children and Families Act 2014 is non-delegable. There was no evidence to show how the Council satisfied itself Y received all the SEN provision in his EHC Plan.
46. The Council’s August response focussed on the fact that School 1 did not identify or request additional provision for Y after the March 2025 annual review meeting. I find the Council failed to address Miss X’s complaint about its failure to discharge its Section 42 duty in Y’s case. This was fault.
47. There was no evidence to show the Council continued to have an oversight of the delivery of Y’s provision during this period particularly at a time it was investigating Miss X’s complaint. This is because School 1’s internal emails in April and June also showed delays and that Y did not receive all the SEN provision in his EHC Plan. This was fault.
48. The Council’s fault to discharge its Section 42 duty meant Y lost out on some of his SEN provision and support. It also caused Miss X distress and uncertainty as to whether the Council provided Y with all the SEN provision in his EHC Plan between March 2025 and June 2026.
49. Y continued to attend School 1, received education and some provision set out in his EHC Plan which I find mitigated the injustice caused to Y.
50. I note Miss X’s point about the strikethroughs made in Y’s provision map. However, evidence shows no provision was struck off or removed, instead School 1 took out some words such as Y’s name at the start of a sentence to condense the contents of the document. This was not fault. The content of Y’s final EHC Plan issued in June 2026 also showed the Section F provision remained the same.
51. We have recently made service improvement recommendations in other decisions that the Council should remind relevant staff of the Council’s legal duties under Section 42 of the Children and Families Act 2014 and to provide a plan it introduced to help drive improvement within its SEND service. We are continuing to monitor the actions the Council takes to ensure compliance with those and similar recommendations. For this reason, I have not made service improvement recommendation about the same identified issues in this case. These identified issues are already being addressed through other cases we have investigated. However, service improvement recommendation about how it completes an EHC Plan annual review process will be made in the ‘action’ section below.

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Action

52. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following actions within one month of the final decision:

• apologise in writing to Y and Miss X to acknowledge the injustice caused to them by the Council’s identified faults as set out above. The apology should be in accordance with our guidance, Making an effective apology
• make Miss X an additional payment of £1,200 on behalf of Y, in recognition of his loss of some provision and support set out in his Education, Health and Care Plan between March 2025 to June 2026. This payment includes the distress and uncertainty caused to Miss X by the Council’s failings as identified above
• secure and provide Y with all the provision set out in his Education, Health and Care Plan without further delay.

53. Within two months of the final decision:

• provide an action plan to address how the Council monitors and completes annual reviews of children/young people’s Education, Health and Care Plans in line with statutory timescales. This is to ensure appropriate special educational needs provision and support are provided to them in a timely manner and that decision letters after review meetings whether to maintain, amend or cease the Plan are issued and to advise parents/guardians of their appeal rights to the Tribunal.

54. The Council should provide us with evidence it has complied with the above actions.

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Decision

55. I find fault by the Council causing injustice to Y and Miss X. The Council has agreed actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman