Summary: Mrs X complained the Council delayed in issuing an Education, Health and Care Plan following an emergency annual review for her son, Y, and failed to secure special educational provision when he was unable to attend school. We find the Council at fault for a delay in issuing the final amended Education, Health and Care Plan following the annual review. This caused frustration and uncertainty for Y and Mrs X. The Council has agreed to re-offer Mrs X a symbolic payment and secure occupational therapy provision to remedy the injustice caused.

The complaint

1. Mrs X complained the Council:
• Delayed in issuing a draft and final Education, Health and Care Plan following an emergency annual review.
• Failed to secure suitable educational provision and the special educational provision detailed in Y’s Education, Health and Care Plan when he was unable to attend school.
• Communicated poorly throughout the process.
• Did not agree to education other than at school.
2. Mrs X told us Y missed out on a year of education, his mental health significantly declined, and there has been an impact on her own mental and physical health. Mrs X also told us she has paid privately for support, and this has caused financial hardship for the family. Mrs X would like the Council to apologise, complete an investigation, implement Y’s Education, Health and Care Plan, reimburse the cost of private therapy, provide a financial remedy for the loss of education and improve its communication and accountability within its SEND team.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
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. 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)
7. 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)
8. 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

9. Y stopped attending school in September 2024. This is the starting point for my investigation.
10. Following an emergency annual review meeting the Council issued an amended final Plan in March 2025. Mrs X had a right to appeal this Plan however, as the Plan was issued without a placement named, the Council explained it would continue school consultations. For this reason, it was reasonable for Mrs X to allow the Council to complete school consultations rather than appeal.
11. The Council issued a further amended final Plan at the end of April 2025 to correct some errors in the March 2025 Plan. Mrs X was not happy with the content of the Plan so I consider it was reasonable for her to appeal this Plan. April 2025 is the end date for my investigation.
12. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. For this reason, I have not investigated Mrs X complaint the Council failed to agree an EOTAS package as Mrs X had a right to appeal this decision.
13. My investigation looks at the Council’s actions in completing the annual review, securing special educational provision and its communication with Mrs X between September 2024 and April 2025.

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How I considered this complaint

14. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
15. Mrs 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

Legal and administrative background

16. 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. 
17. 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)  
18. 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) 
19. 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.

What happened

Annual review

20. Y stopped attending school in September 2024. Mrs X contacted the Council the following week to make them aware Y was not attending school and to request and early review of Y’s EHC Plan.
21. An early review was held in November 2024. Following the annual review the Council agreed to amend Y’s EHC Plan. In accordance with the statutory timeframes, the Council should have issued the final amended Plan by the middle of February 2025.
22. The Council issued a final amended Plan at the end of March 2025. This Plan did not contain the agreed amendments, so a further final Plan was issued at the end of April 2025. This is a delay of approximately 10 weeks.

Special educational provision

23. The Council issued a final Plan for Y in February 2024. This Plan was active when Y stopped attending school in September 2024.
24. Section F of this EHC Plan set out the special educational provision Y should receive. Alongside the special educational provision to be delivered by Y’s school, his Plan also stated he should receive 6 occupational therapy sessions. There was no set time frame for the sessions to be delivered, however Y should have received the provision by February 2025.
25. Y stopped attending school at the end of September 2024 and Mrs X informed the Council in the first week of October. Ms X’s communication with the Council explained the school intended to apply for alternative provision to support Y while he was unable to attend school. In response, the Council considered Y’s access to education and determined an early review was required to gather information about the reasons Y was unable to attend his named setting.
26. Following the early annual review in November 2024, a request for Education Other Than at School (EOTAS) was considered by the Council. The Council determined EOTAS was not required but it agreed an interim package of education should be put in place.
27. Y was removed from the school roll at the end of December 2024.
28. At the beginning of January 2025, the Council’s initial offer for interim education consisted of three hours of specialist mentoring per week. The Council’s records show it considered this was suitable for Y’s needs at that time. The Council planned to provide this support for twelve weeks in the hope Y would be able to access a larger package of support and reintegrate into learning activities.
29. In April 2025 the Council reconsidered Y’s needs and increased his package of support to include bespoke tutoring and learning support alongside the specialist mentoring. This was agreed for a further thirteen weeks.
30. Mrs X has provided evidence the provision provider had difficulties in securing staff to deliver the provision which was agreed in April 2025.
31. The Council also agreed to complete the occupational therapy review and provide the occupational therapy provision outlined in Y’s EHC Plan. The Council has not provided any evidence this has been provided.
32. At the beginning of May 2025, the Council increased Y’s package of support again to include play therapy.

Communication

33. Between September 2024 and the beginning of May 2025 the Council remained in consistent contact with Mrs X. The Council provided timely responses to Mrs X’s communication during this time.
34. In April and May 2025 there was a breakdown in communication and the Council failed to respond to a number of Mrs X’s emails.

My findings

35. There was a 10 week delay in the Council issuing the final amended Plan following the emergency annual review in November 2024. This delay is fault which caused uncertainty and frustration for Y and Mrs X.
36. In response to Mrs X’s complaint, the Council has apologised for the delay and offered a symbolic payment of £200 to acknowledge the frustration and uncertainty caused. This remedy is in line with our Guidance on Remedies, so I have not recommended a further remedy.
37. There is no fault in the Council’s consideration of its section 19 duties once it became aware Y was unable to attend school in October 2024. The Council took steps to gather the relevant information to allow it to make a decision on whether a section 19 duty was owed. Once the Council determined the duty was owed, it arranged for a short term interim package of support which its reviewed and increased regularly.
38. Where there was a delay in the agreed provision being provided, this was not a fault of the Council. The Council secured Mrs X’s preferred provider and funded the level of provision it determined was suitable for Y to access.
39. Y’s occupational therapy provision should have been secured and fully delivered by February 2025. The Council did not provide any occupational therapy provision between February 2024 and February 2025. This is fault which caused Y to miss out on the occupational therapy provision detailed in his EHC Plan for a whole year.
40. There was a delay in the Council responding to Mrs X’s emails between April and May 2025. This is fault which caused Mrs X frustration.
41. In response to Mrs X’s complaint, the Council recognised there had been delays in its communication with Mrs X which had caused her frustration and uncertainty. The Council apologised to Mrs X and offered a symbolic payment of £200 to acknowledge the injustice caused. This remedy is in line with our Guidance on Remedies, so I have not recommended a further remedy.

Action

42. Within one month of the final decision the Council will:
• Re-offer the symbolic payments if Mrs X has not already accepted these.
• Secure the occupational therapy provision detailed in the February 2024 Education, Health and Care Plan. The Council should ensure there is a set plan for the provision to be delivered within 6 months of the final decision.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

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