Summary: There was delay in holding an annual review of an EHC Plan and fault in the way the Council arranged the review meeting. Recommendations for an apology and symbolic payment to acknowledge the injustice are made.

The complaint

1. Ms X, a Representative, complains on behalf of Ms Y. Ms X complains the council:
• delayed the Annual Review of Ms Y’s child’s Education, Health and Care (EHC) Plan;
• failed to gather essential professional reports; and,
• refused to fund professionals’ attendance at the review meeting.
2. Ms Y added additional complaints at stage two of the complaint process, after the annual review meeting was held, that the Council had:
• Ignored professional advice and parental voice;
• Ignored the views of the child;
• Proposed to reduce provision in the EHC Plan.
3. When Ms X brought the complaint to the Ombudsman, she raised a further issue that the Council had missed the statutory timeframe to amend the EHC Plan after the review meeting. The meeting took place in May, and a final amended Plan was not issued until December. Ms X said this delayed Ms Y’s right of appeal to the Tribunal.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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. The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699 (‘Tribunal Procedure Rules’) give the Tribunal wide ranging case management powers, including to determine the evidence it requires to see.
7. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
8. 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 s34H(1), as amended)

Back to top

How I considered this complaint

9. I considered evidence provided by Ms X, Ms Y and the Council as well as relevant law, policy and guidance.
10. Ms X, Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Chronology of events

12. Ms Y and her child moved into the Council’s area in Winter 2024.
13. Councils must review EHC Plans at least once a year. The previous Council reviewed the Plan in Autumn 2023.
14. Ms Y’s child’s EHC Plan has monitoring arrangements recorded in Section F of the Plan (provision section) that parents and all professionals involved must be invited to the review meeting and provided with an opportunity to make their views known.
15. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must review the EHC Plan either within twelve months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  
16. 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) 
17. As more than a year had already passed from the previous review by the time Ms Y moved into the Council’s area, the date for completing the review was three months from the date of transfer; that is by early March 2025. Both the meeting and the decision whether to amend the Plan had to be completed by early March.
18. The Council wrote to Ms X and Ms Y in April about the meeting arrangements. The Council said it was not funding professionals to attend. If there were reports that required funding Ms X and Ms Y were to contact the Council in advance to agree this.
19. The review meeting took place in early May, and the Council issued a decision to amend 2.5 weeks later, together with an amendment notice and draft plan. Therefore, the review was completed 2.5 months late.
20. A second draft plan was issued in September and a final Plan in December 2025. Ms Y is in the process of appealing the December 2025 final Plan to the Tribunal.
21. Ms X says the final Plan should have been issued within twelve weeks of the annual review meeting (by July) and so was twenty-one weeks late.
22. Ms Y’s child received Education otherwise than at School (EOTAS) provision under s.61 Children and Families Act 2014. The package included holding team around the child meetings. Following consultation with Ms X and Ms Y, the Council provided a personal budget setting out the provision.
23. A team around the child meeting was held in February 2025, but Ms X says only one of the five providers commissioned attended. Ms X complains this was because of lack of funding.
24. Ms Y says the absence of key professionals at the annual review meeting meant the Council did not have full information on which to make an informed decision. Ms Y has said two providers who gave advice to the review stated Ms Y’s child was not ready to return to school, but the Council’s decision after the review was to start consulting schools with a view to ending EOTAS provision this year.

Complaint handling

25. The Council acknowledged the review was late. It apologised but said the delay had not led to any loss of provision.
26. The Council said all relevant professionals had been invited to the review meeting and to submit advice and given the required notice. It said professionals did not have a legal obligation to attend. It said it considered all input, written and verbal, received as part of the review before making its decision to amend the Plan.
27. At stage two of the complaint process Ms X and Ms Y raised concerns about the standard of professional advice. The Council did not accept there had been any procedural irregularities in its handling of the review but did agree, as independent providers were involved, it would be helpful for the Council to provide guidance about the evidence required for reviews.

Relevant law and guidance

28. Regulation 19 of the Special Educational Needs and Disability Regulations 2014 says when undertaking a review of an EHC Plan, a Council must:
• Consult the child and the child’s parents;
• Consider the chid or young person’s progress towards achieving the outcomes in the EHC Plan;
• Consult the school or other institution attended by the child or young person.
29. Where a child or young person does not attend a school or other institution, Regulation 21 says the Council must invite the following people to a meeting as part of the review:
• The child’s parents or the young person;
• An officer of the Council who deals with special educational needs;
• A health care professional identified by the relevant commissioning health body;
• An officer from social care;
• Any other person whose attendance the local authority considers appropriate.
30. Two weeks before a review meeting the Council must obtain advice and information from the persons referred to above and circulate it.
31. 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). I refer to this as the s.42 duty.

What I have and have not investigated

32. We cannot investigate issues where the Council has not had an opportunity to comment. The Council’s final complaint response was provided in July and did not address the delay in issuing a final amended Plan, which happened afterwards. We cannot investigate this until the Council has been given the opportunity to comment.
33. We also cannot investigate a complaint about lack of funding for professionals to attend team around the child meetings. This was not part of the original complaint raised with the Council, or us, but mentioned only in response to our draft decision. Again, we would need to see evidence this matter had completed the Council’s own complaint process first. We would also note that as the EHC Plan has been appealed then the content of the Plan (including what items are funded) is something that can be addressed via the appeal and working document process.
34. The courts have established that if someone has appealed to the Tribunal, 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 same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
35. Ms X says there were deficiencies in the professional advice obtained for the review and Ms X and Ms Y clearly disagree with the changes the Council made to the Plan following the review. They also consider the parental and child voice has not been considered. Ms X refers to a ‘false narrative’ by the Council to justify removal of provision from the EHC Plan. All of these are issues which the Tribunal will, or can, consider and so we cannot comment on them. We cannot pre-empt what view the Tribunal may take about the evidence or provision.
36. The only matter that we can consider in this investigation is the administration of the review process.

Analysis

37. The Council has accepted it failed to hold the review on time and apologised. I am satisfied this is a satisfactory remedy. The outcome of the review was to reduce provision, not increase it. Therefore, I am not persuaded the delay has caused a significant injustice. Ms Y’s child was able to keep the higher level of provision for longer than would have been the case had the review been heard on time.
38. Ms X and the Council disagree whether the law requires professionals to be invited to attend the meeting and funded to attend. It is not the role of the Ombudsman to determine disagreements about the law, that is the role of the court; however, in this case, Section F of the EHC Plan required the Council to invite all professionals involved to attend the review meeting and provide them with an opportunity to make their views known. The Council has a legal obligation to secure the monitoring arrangements under its s.42 duty as these were included in Section F of the Plan. It should therefore have been willing to pay for the professionals’ time, and it was fault the Council declined to do so. I do note however that there was an opportunity for the family to have raised the matter of funding when the personal budget was provided, and I have not seen evidence the family did so.
39. The Council does not have any powers to make independent professionals attend; this would be a matter for the professionals themselves.
40. It is speculative whether the Council would have made a different decision had professionals attended and given oral evidence in addition to the written evidence. However, the uncertainty whether the outcome may have been different is itself an injustice.

Agreed Action

41. Within four weeks of my final decision, the Council will:
• apologise to Ms X for failing to fund professionals to attend the review meeting despite this being required by the monitoring arrangements in the EHC Plan;
• pay Ms X £150 for the distress and uncertainty caused.

Back to top

Decision

42. There was delay in holding an annual review of an EHC Plan and fault in the way the Council arranged the review meeting. The Council has agreed actions to remedy the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman