Summary: Mrs X complained the Council delayed completing an annual review and delayed issuing Z’s amended final Education, Health and Care (EHC) Plan, breaching statutory timescales. We have found the Council’s delays amounted to fault, causing Mrs X and Z avoidable frustration and uncertainty. The Council has agreed to apologise and pay a symbolic financial remedy to recognise the injustice caused.

The complaint

1. Mrs X complained the Council delayed completing an annual review and delayed issuing Z’s final amended Education, Health and Care (EHC) Plan, breaching statutory timescales.
2. Mrs X said the Council’s delays caused avoidable frustration and uncertainty, while frustrating her right to appeal to the SEND Tribunal.

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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. 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.
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 Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
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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Relevant legislation, guidance and policy

Education, Health and Care Plans

9. 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.

Reviewing EHC Plans

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.

Appeal rights and the Ombudsman’s jurisdiction

12. Relevant to this complaint, 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; and
• amendment to these elements of an EHC Plan.
13. 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)
14. 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.

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What I found

Key events

15. At the time of the events complained of, Z had an EHC Plan and was attending an alternative education provision setting.
16. On 13 January 2025, the Council held an annual review meeting to consider the content of Z’s EHC Plan. The record of the meeting shows the Council intended to amend Z’s EHC Plan. However, the paperwork did not specify what these proposed amendments would be.
17. On 24 April 2025, Mrs X complained to the Council:
• Mrs X said the Council had not issued a written decision following the annual review meeting, confirming it would amend Z’s EHC Plan. Mrs X said the Council had breached statutory timescales for confirming its decision and setting out the proposed amendments. She said any delay in confirming its decision and issuing an amended EHC Plan would frustrate her right to appeal to the SEND Tribunal.
• Mrs X asked the Council to confirm its decision in writing and issue a draft EHC Plan as soon as possible.
18. The Council responded to Mrs X’s complaint on 13 May 2025. It accepted it had not issued a written decision after the annual review, thereby failing to comply with statutory timescales. The Council noted Z’s current placement would end in July 2025 and arrangements from September 2025 onwards were unclear. It said it would issue its written decision to amend Z’s EHC Plan by 16 May 2025 and would issue a draft EHC Plan as soon as possible, which it would use to consult with potential settings. The Council said any placements would be approved by its decision panel and it would issue an amended final EHC Plan once Mrs X had been able to comment on the draft. The Council upheld Mrs X’s complaint, apologising for the distress caused.
19. On 16 May 2025, Mrs X asked the Council to escalate her complaint. She said the Council had not sent her its decision, as promised.
20. The Council issued its written decision, confirming it would amend Z’s EHC Plan, on 19 May 2025. On 10 June 2025, the Council sent Mrs X its proposed draft amendments.
21. Mrs X sent the Council her comments and amendments on 22 June 2025. On 23 June 2025, the Council responded to Mrs X’s escalated complaint:
• The Council set out what should have happened. It said in line with statutory timescales, it should have issued its written decision to amend Z’s EHC Plan by 10 February 2025, and issued an amended final EHC Plan by 7 April 2025.
• The Council said it now needed to propose further draft amendments. It said it would send a further draft EHC Plan to Mrs X later that day, allowing time for Mrs X to comment.
• The Council apologised and upheld Mrs X‘s complaint, providing the Ombudsman’s details.
22. The Council consulted with potential settings in August 2025. Mrs X asked the Council when it would issue Z’s amended final EHC Plan. She said Z was due to enrol at their preferred setting (College Y), but the Council had not yet finalised the placement named in Z’s EHC Plan.
23. On 10 September 2025, the Council told Mrs X its decision panel would shortly consider the placement and funding request. It said it could finalise Z’s EHC Plan once this happened.
24. On 24 September 2025, the Council issued Z’s amended final EHC Plan, naming College Y as the setting.

Analysis

Did the Council act with fault?

25. Paragraphs 10 and 11 set out the statutory timescales for completing the annual review procedure, providing a written decision and issuing an amended final EHC Plan. In its complaint response, the Council accepted it did not meet these timescales. It correctly identified the date by which it should have issued a written decision confirming its intention to amend Z’s EHC Plan, and the date by which it should have ultimately issued Z’s final amended EHC Plan. I agree with the Council’s own findings.
26. The Council did not issue Z’s amended EHC Plan until 24 September 2025. There was therefore an overall delay of around five months in fully completing the review procedure and issuing the final amended plan. I have found the Council at fault for this delay.

Did the Council’s faults cause an injustice?

27. Z began attending College Y, the setting ultimately named in the EHC Plan, at the beginning of the academic year in September 2025. This was before the Council issued the plan. The Council’s delay did not therefore affect Z’s attendance at the named setting, or cause missed education provision.
28. However, the Council’s delay caused Mrs X and Z avoidable frustration. It also caused avoidable uncertainty over what provision and what educational setting the Council would ultimately specify in Z’s EHC Plan, and whether Z would be able to continue attending their preferred setting after starting. This avoidable uncertainty and frustration, at a moment of transition in Z’s academic career, is an injustice.
29. The delay also meant Mrs X did not receive her right to appeal the Council’s decisions about the content of Z’s EHC Plan at the correct time. In the event, I understand Mrs X did not submit an appeal. Nonetheless, the frustration arising from the denial of a timely appeal right is an injustice in itself.
30. Mrs X told the Ombudsman the faults identified in this case had continued after the events complained of and had likely affected others. I note this concern and have addressed it in paragraph 33.

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Action

31. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mrs X and Z for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our published Guidance on Remedies.
2. Pay £500 in recognition of the avoidable frustration and uncertainty caused by the Council’s delay completing the annual review procedure and issuing Z’s final amended EHC Plan. This is a figure of £100 per month, for a delay of around five months. In recommending this figure, I have considered the Ombudsman’s Guidance on Remedies and recommendations made in similar cases.
32. The Council should provide us with evidence it has complied with the above actions.
33. Following other recent investigations, the Ombudsman recommended the Council develop and implement a procedure to monitor its annual reviews, ensuring they are completed within statutory timescales. These recommendations would also address the faults identified in this case. The Council accepted the Ombudsman’s recommendations and I have not therefore duplicated them here. The Ombudsman will monitor the Council’s services through our casework.

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Decision

34. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman