Summary: Ms X complained that the Council, in respect of her daughter Y’s special educational needs, failed to complete an Annual Review and produce an amended Education, Health and Care Plan within the statutory timescales. We found fault with the Council’s actions. The Council has agreed to apologise to Ms X and make a symbolic payment.

The complaint

1. Ms X complained that the London Borough of Tower Hamlets (the Council) in respect of her daughter, Y, failed to complete an Annual Review within the statutory timescales and failed to amend the Education, Health and Care (EHC) Plan as a result of the review. Ms X also complained that the Council failed to carry out a transition review for Y’s secondary education, did not consult placements properly and did not secure the provision in her existing EHC Plan. Y has not been able to attend school during this period and Ms X also complained that the Council failed to put alternative provision in place. This caused Y to miss on out essential education and support and significant distress and inconvenience to Ms X.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint 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)
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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What I have and have not investigated

7. 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)
8. 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.
9. 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, or if the appeal is withdrawn or conceded.

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How I considered this complaint

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

Special educational needs

12. A child or young person with special educational needs may have an 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. 

Reviewing EHC Plans

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. 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. Following the review meeting the council must issue a decision to either 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) 
14. 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.

Key transfers pre-16

15. 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.

Section 19 duty

16. Section 19 of the Education Act 1996 says that councils must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.

Establishing a section 19 duty

17. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
18. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
19. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.

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What happened

20. Ms X’s daughter, Y, had an EHC Plan dated May 2023. The school she attends held an annual review on 28 March 2024. Her attendance over the previous academic year was over 90% and she was in Year 5. Ms X said at the annual review that Y was reluctant to go to school, not all the 1:1 support detailed in her EHC Plan was being provided, and prolonged teacher absence were all affecting her mental health. She said Y presented very differently at home to when she was in school.
21. Following the meeting the school produced an updated therapeutic care plan and an amended draft EHC Plan showing the suggested changes. It sent this to the Council in late April 2024, but it completed the wrong template form using one with the heading ‘no significant changes required’.
22. Ms X chased the Council in June and July 2024. In July 2024 the Child and Adolescent Mental Health Service (CAMHS) sent a letter saying that Y’s mental health was deteriorating and she was having difficulty attending school due to anxiety.
23. On 20 August the Council issued its decision saying it was not amending the EHC Plan. I can only investigate up to this point, but I have added the following paragraphs to provide context to the investigation.
24. During September and October 2024 Ms X chased the Council as she did not understand the decision given the content of the meeting. The Council did not respond so in October 2024 she appealed to the SEND Tribunal about the decision to refuse to amend the EHC Plan.
25. The Council produced two draft EHC Plans on 27 September and 4 October incorporating some of the changes suggested at the Annual Review. Ms X said she did not receive these. It then consulted with other schools in January 2025 and issued a further amended EHC Plan on 15 February naming the current school in section I. Ms X appealed against this plan as well and the two appeals were joined. In August 2025 the Tribunal ordered an Education Other Than At School package for Y.

Complaint

26. Ms X complained to the Council in April 2025. It responded in May 2025, saying that the phase transfer review (to secondary school) had been done in April 2024, the decision to maintain the statement issued in August 2024 was an error following from the incorrect paperwork used by the school. Once the error was identified it has sent amended draft EHC plans to Ms X and there was an appeal now in progress.
27. Ms X escalated her complaint in June 2025, but the Council said it could not respond as there was an appeal in progress.
28. In response to my enquires the Council said it acknowledged the error with the annual review form and acted as soon as it was identified. It also said there were significant staff shortages in the SEN team in 2024 which contributed to the delays in completing annual reviews.

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Findings

Annual review

29. The Council delayed in completing the annual review process. It should have issued its decision whether to change or maintain the Plan within four weeks of the meeting (by 26 April 2024). It did not do so until 20 August, 4 months later. This was fault which caused Ms X frustration and uncertainty over Y’s education for the summer term. It also delayed her ability to submit an appeal to the Tribunal.
30. The Council also failed to pick up that the wrong form had been completed, and changes were required to the EHC Plan. This meant it issued the wrong decision in August 2024. I accept the school contributed to this error but as it also enclosed a draft EHC Plan with suggested changes, I consider the Council should have noticed the discrepancy and contacted the school for clarification. This was fault which caused delay and uncertainty to Ms X.

Alternative Provision

31. There was no evidence of poor attendance for the first two terms of the 2023/24 academic year. However, at the Annual Review Ms X said that Y was reluctant to attend due to a deterioration in her mental health. This was confirmed by CAMHS in July 2024. Given the delay in acting on the Annual Review report and the failure to scrutinise the documents properly it is likely the Council failed to pick up the attendance difficulties. I cannot conclude whether or not it would have taken any action to make alternative provision but the failure to consider the situation was fault, which caused Ms X uncertainty.

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Action

32. In recognition of the injustice caused to Ms X and Y, I recommend the Council within one month of the date of my final decision:

• apologises to Ms X and makes a symbolic payment of £750.

33. I have not made a service recommendation as the fault occurred two years ago and we have made recommendations in this area in two similar complaints in the last twelve months.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. 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