Summary: The Council has accepted it is at fault for delay organising mediation, providing the wrong details in the consultation, and poor communication in the Education, Health and Care (EHC) planning process. It has apologised for this. The Council is also at fault for delay issuing a decision and updated EHC Plan following an annual review. I have asked the Council to apologise and make a financial payment to remedy the distress caused. I have not investigated matters which Ms X has appealed to the Tribunal.

The complaint

1. Ms X complained about delays in the Education, Health and Care (EHC) planning process and said the Council sent the wrong EHC plans to parent preference schools. Ms X said this resulted in schools not having space for her child. Ms X was not satisfied with the school named in the EHC Plan and appealed this to the Tribunal. She also complained about poor communication. She said this has caused distress to the whole family.

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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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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How I considered this complaint

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

Relevant legislation

The Education, Health and Care (EHC) Plan

8. 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 and reviewing the Education, Health and Care (EHC) Plan

9. 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)  
10. 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) 
11. 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.

Key transfers

12. 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 are: 

• early years provider to school;  
• infant school to junior school;  
• primary school to middle school;  
• primary school to secondary school; and  
• middle school to secondary school.  

Mediation

13. 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. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation.
14. A child’s parents or the young person do not have to consider mediation if their disagreement only relates to the placement named in section I or that no placement is named in section I.

Appeal to the Tribunal

15. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
16. 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)
17. 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.

What happened

18. I have summarised below the key events; this is not intended to be a detailed account.
19. Several medical professionals have been involved with C since birth and support their medical conditions and learning needs. The Council issued C’s first Education, Health and Care (EHC) Plan in June 2021.
20. The School held an annual review meeting in June 2024 and sent the documents to the Council in October 2024. The review noted C had not met the outcomes on the EHC Plan and they still need support. It noted the parents asked for a special school or a specialist unit for secondary education.
21. The Council sent a proposed draft EHC Plan to Ms X in early November 2024 and an amended version in late November 2024. The Council issued a further amended plan in February 2025.
22. Ms X applied for mediation. In late March 2025, all parties attended a mediation meeting.
23. Following the mediation, the Council issued another final amended EHC Plan in June 2025. Like the February 2025 Plan, it named a mainstream primary school until the end of the academic year and a mainstream secondary school from the start of the new academic year.
24. Two days later, Ms X appealed the EHC Plan to the Tribunal.
25. The Tribunal hearing took place in October 2025. The order named the same mainstream secondary school.

The complaint

26. Ms X complained to the Council in April 2025. She complained about poor communication, delay arranging mediation and said the Council had not confirmed a school place for C for the new academic year.
27. The Council issued a stage one response in May 2025 and a stage two response in June 2025. It upheld Ms X’s complaint about poor communication and apologised. It explained there was an unprecedented demand on the service. It was setting up a new case management system to improve communication.
28. It also upheld Ms X’s complaint about delay arranging mediation. It explained this was because of lack of availability from the Council and the mediation company due to an increase in requests.
29. The Council did not uphold Ms X’s complaint about C not having a confirmed school place for September and explained it had named a mainstream school which would meet C’s needs with support.
30. The Council upheld Ms X’s complaint about not following processes for C’s phase transfer to secondary school. It explained that when it was consulting with schools to see if they could offer C a place for September 2025, it had sent an old version of the EHC Plan to a specialist school. It said this was the result of human error. It apologised for the mistake and explained it did not impact on C getting a place.

Analysis

Issuing a decision and Plan after the annual review

31. The Council must issue a decision to amend, maintain or cease to maintain the EHC Plan within four weeks of the annual review, and send a copy of the new amended plan to the family. The School held the review meeting in June 2024 and the Council issued an amended version of the plan in November 2024. The Council should have issued the amended plan within four weeks, which would have been July 2024. This was a delay of four months.
32. The school held the annual review meeting in June 2024 and sent the paperwork to the Council in October 2024, following the meeting. The main delay in issuing the decision is because of the Schools delay providing the documents to the Council. The Council can delegate holding the meeting to a school, but it cannot delegate the responsibility to complete the review within timescale. The Council therefore remains liable for the delay caused by the School. The Council was at fault for the four-month delay issuing a decision following the annual review meeting. This caused the family distress as they did not know what the result of the review meeting was, and what the amended Plan might look like.

Mediation

33. In its complaint response, the Council upheld Ms X’s complaint about delay arranging mediation on the February 2025 EHC Plan. The Council was at fault, which it has already accepted.
34. The Council explained this was because of a lack of availability from both the Council and the mediation company due to an increase in requests. The Council apologised for the delay and said the mediation has now taken place. The Council has already provided a suitable remedy; there is no remaining injustice.

Consultation

35. In response to Ms X’s complaint about the processes for phase transfer not being followed, the Council accepted in its complaint response that it sent the wrong plan to the school for consultation and apologised to Ms X. This was fault which the Council accepted. It explained this was a human error and did not impact on C getting a place. The Tribunal named the same mainstream school from September 2025 as the Council had already named in the final version of the February 2025 Plan. Therefore, but for the fault, the result would have been the same. There is no remaining injustice.

Dissatisfied with the school named in the Plan

36. Ms X was unhappy with the secondary school named in C’s February 2025 EHC Plan. That Plan was superseded by the June 2025 EHC Plan which named the same school. Ms X appealed that Plan to the Tribunal, which was the correct way for her to try and have a different school named.
37. The correct way to appeal a school named in the Plan is to the Tribunal, which is what Ms X did. The law says if someone has appealed to the Tribunal, we cannot investigate it. This is not something I can look at.

Communication

38. The Council accepted in its complaint response that it is at fault for poor communication. I agree with the Councils finding that this is fault. The Council has already remedied the injustice as it has apologised to Ms X and made service improvements.

Summary of fault causing injustice

39. The Council has accepted it is at fault for delay organising mediation, providing the wrong EHC Plan in the consultation, and poor communication. It has apologised for this in its complaint response, explained how this happened and the service improvements it has made to avoid the same mistake happening again. This is a suitable response to remedy any injustice caused.
40. I cannot look at matters which Ms X appealed to the Tribunal. I have therefore not investigated the school named in the EHC Plan.
41. The Council is at fault for delay issuing a decision and updated plan following the June 2024 annual review meeting. This caused distress as the family did not know what the decision was going to be and what a new plan might look like.

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Action

42. Within four weeks of the final decision, the Council should:
• Apologise and pay Ms X £200 for the distress caused by the delay in the annual review process. 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 the apology.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

44. 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