Summary: Mrs X complained the Council poorly managed the process for reviewing and amending her child’s Education, Health and Care Plan, delayed securing alternative education when her child stopped attending school, failed to ensure they received the support set out in their Plan and failed to properly carry out a Tribunal decision. We found fault due to delay in the annual review process, securing some of the provision in the Plan and following the Tribunal’s decision. For the period we have investigated, we consider the Council’s actions of an apology and symbolic payment provide a suitable remedy.

The complaint

1. The complainant, Mrs X, complains the Council poorly managed the process for reviewing and amending her child’s Education, Health and Care Plan between March 2023 and April 2024. Mrs X also complains the Council delayed securing alternative education when her child stopped attending school in October 2023 and failed to ensure they received the support set out in their Plan. Mrs X also complains the Council failed to properly carry out a Tribunal decision.
2. Mrs X says this delayed her appeal rights causing her avoidable distress and her child missed a suitable education and therapies. Mrs X also says this had a harmful impact on the whole family and they incurred unnecessary costs.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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))
7. 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)
8. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
9. 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)
10. 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

11. I have not investigated any events that took place after July 2025. This period has not yet been considered under the Council’s own complaint process, so it is premature for the Ombudsman to consider it (please see paragraph 6).
12. I have not investigated matters where a right of appeal has been used, or which would overlap with matters the Tribunal was asked to consider and would risk the Ombudsman trespassing onto the role of the Tribunal (Local Government Act 1974, section 26(6)(a), as amended). This means I have not investigated Mrs X’s complaint the Council failed to make suitable alternative educational provision for Z after April 2024. This is when the Council issued the Final EHC Plan which provided a right to appeal to the Tribunal.
13. This is because:

• 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 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); and
• 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 decision not to issue an EHC Plan, the special educational provision or educational placement in an EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

14. 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.
15. Mrs X had the right to appeal against the content of Z’s EHC Plan issued in April 2024. She exercised this right in June 2024 and the appeal concluded in January 2025.
16. In my view, Z’s non-attendance at school is linked to Mrs X’s disagreement about the content of the April 2024 EHC Plan and the named placement as set out in her subsequent appeal to the Tribunal. On this basis we cannot investigate Mrs X’s complaint about a lack of provision for Z from April 2024 to January 2025.
17. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
18. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the Tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 
19. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal.
20. I have investigated Mrs X’s complaint about the annual review process between March 2023 and April 2024 and the failure to carry out a Tribunal decision from January 2025.

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How I considered this complaint

21. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
22. 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

Background and legislation

23. 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. 
24. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision needed by the child or the young person. 
• Section G: Any health provision required because of their learning difficulties or disabilities which results in the child or young person having SEN.
• Section H1: The social care provision which must be made for the child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.
• Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. (Where relevant this includes adult social care provision to meet eligible needs under the Care Act 2014).
• Section I: The name and/or type of educational placement 

25. 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) 
26. 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.
27. 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.
28. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• 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;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

Key events

29. The following is a summary of key events. It does not include everything that happened.
30. Mrs X’s child, Z, attended School A from 2016 to October 2023 and had an Education, Health and Care (EHC) Plan.
31. An annual review of Z’s EHC Plan had been held by School A on 22 March 2023. The Council wrote to Mrs X on 13 June 2023 to confirm its decision to amend the plan but it did not propose to change the placement.
32. A draft plan was issued to Mrs X on 27 July 2023. The Council has acknowledged delays in progressing Z’s annual review between March and July 2023 and says this was due to workload and staffing issues and concurrent evidence gathering from multi-disciplinary professionals.
33. The Council issued subsequent amended versions of Z’s EHC Plan in August 2023.
34. An annual review was held by School A on 1 November 2023. The Council wrote to Mrs X on 14 November 2023 following this review with its decision to amend the plan but it did not propose to change the placement. The annual review document is signed and dated 22 November 2023. Mrs X says she did not receive the decision letter following this review.
35. School A advised the Council on 3 November 2023 that Z was not attending school. There was correspondence between the school and Council about arranging suitable tuition and that the Occupational Therapy (OT) and Speech and Language Therapy (SALT) provision was indirect therapy that could be provided both at home and by a future tutor.
36. A draft plan was issued on 5 December 2023.
37. Z received 4 hours of tuition a week from 18 December 2023. Mrs X sought additional tuition and the weekly hours were increased to 8 hours from the end of January 2024.
38. The Council has provided a copy of an annual review document which is signed and dated 22 February 2024 by the school. This is described in the summary of discussion as being an emergency annual review as the position had been reached where a change of placement was being sought as Z’s placement had irretrievably broken down. Mrs X disputes this meeting took place and I note the discussion appears to reflect the position in November 2023.
39. The final EHC Plan was issued on 15 April 2024.
40. Mrs X instructed a solicitor who wrote to the Council at the end of May 2024 about the final EHC Plan not being accurate or up to date and about School A being named as there was consensus this placement had irretrievably broken down. The solicitor sought education otherwise than at school (EOTAS) for Z.
41. Mrs X appealed the April 2024 EHC Plan to the SEND Tribunal in June 2024. This included an appeal about sections B, F and I and an extended appeal seeking changes to C, D, G and H. The Council agreed an EOTAS package in June 2024 while the Tribunal appeal process progressed.
42. For the reasons outlined at paragraph 17 and 18 I cannot investigate the Council’s conduct during the appeal process or Mrs X’s associated legal costs.
43. Following the issuing of the agreed Consent Order on 30 January 2025, the Council was required to amend Z’s EHC Plan within the Tribunal’s five-week timescale, setting a deadline of 5 March 2025. The amended Final EHC Plan was issued on 20 February 2025. However, Mrs X subsequently identified omissions from the agreed working document and several further amended versions were produced to correct these issues with the amended Final EHC Plan being issued on 27 March 2025.
44. In responding to my enquiries, the Council accepted delay during the annual review process and delays in securing some of the therapeutic provision specified for Z in their Plan.
45. The Council has referred to the wider context of a national shortage of suitably qualified OTs and SALTs at the time. Despite active efforts to commission specialist provision from external and private providers, the Council was unable to source therapists with the required level of expertise within the necessary timeframe. Mrs X was kept informed of this by the case officer at the time.
46. The Council also accepted that physiotherapy provision was not delivered between October 2023 and June 2024, resulting in an eight-month lapse in this aspect of Z’s EHCP. The Council has accepted this was fault and proposed a payment of £3,680 to recognise the missed provision.
47. The Council also accepted that the combination of Z’s non-attendance, the unsuccessful placement consultations, and the gaps in physiotherapy delivery likely contributed to understandable distress and uncertainty for Mrs X and her family. In recognition of this, the Authority proposed an additional payment of £250 to Mrs X.
48. The Council also confirmed it has implemented the following service improvements:

• a dedicated Annual Review Team was established in 2024
• weekly performance monitoring of statutory deadlines
• a revised quality-assurance framework for Review reports
• a new digital tracking tool
• mandatory training for SEN case officers on legal timeframes

Analysis

49. Z’s school held an annual review in March 2023. This confirmed amendments were required to Z’s EHC Plan. The Council should have issued Z’s final amended EHC Plan within 12 weeks of the annual review meeting. The Council did not issue the Final Plan until April 2024. This was fault which delayed Mrs X’s appeal rights and caused her uncertainty about Z’s education.
50. The Council has also accepted fault in the delay in securing some of the therapeutic provision specified for Z and failing to ensure Z received the physiotherapy provision in their EHC Plan.
51. Finally, there was delay following the Tribunal’s decision at the end of January 2025 before the Council issued the agreed Final EHC Plan on 27 March 2025. This is fault which will have caused Mrs X avoidable time and trouble.
52. In responding to the Ombudsman, the Council offered £3,680 to Mrs X together with an additional symbolic payment of £250 in recognition of the distress caused to both her and Z. I consider this provides a suitable remedy and the Ombudsman would not seek more.
53. I have also noted the changes the Council has made to its Annual Review process which the Ombudsman would welcome. I have therefore not made any further service improvement recommendations as we will monitor the impact of these changes through the complaints we receive.

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Action

54. The Council will take the following action within one month of my final decision:
1. write to Mrs X to apologise for the fault identified in this statement;
2. pay Mrs X £3,680 for the missed provision in Z’s EHC Plan; and
3. pay Mrs X £250 in recognition of the distress caused to both her and Z.
55. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
56. The Council should provide us with evidence it has complied with the above actions.

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Decision

57. 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