Summary: Miss X complains the Council has not dealt properly with her daughter Y’s education, causing delay to appeal rights and missed special educational needs provision. The Council is at fault because it delayed issuing Y’s Education Health and Care Plan, delayed therapy assessments and did not respond to Miss X’s complaint properly. Miss X suffered delay to her right of appeal, Y has suffered significant delay to assessments of her needs and Miss X did not receive a proper complaint response. As well as the appropriate remedies the Council has already offered, it should apologise to Miss X and provide training and guidance.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains the Council has not dealt properly with her daughter Y’s education because:
• It failed to comply with statutory timescales and to issue the amended Education, Health and Care Plan within time after an annual review; and
• Its complaint handling process was flawed as a result of inaccurate or contradictory information provided.
2. Miss X says her right of appeal was delayed, and Y has missed educational provision

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
7. 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.
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 34H(i), as amended)
9. 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

10. I have investigated Miss X’s complaint about how the Council has dealt with Y’s education with regard to the delay to an EHC Plan and referrals for therapy assessment.
11. I have not investigated issues about special educational needs provision in Y’s September 2024 EHC Plan because Miss X’s complaint to the Ombudsman was about the period following the annual review in November 2024 and she confirmed to me that issues around missing provision concerned that which she believed should have been made following the review.
12. I have not investigated issues about special educational needs provision which Miss X says should have been in Y’s EHC Plan after the 2024 Annual Review, because Miss X has appealed to SENDIST Tribunal and this is therefore outside the Ombudsman’s jurisdiction. Consequently, no part of this decision involves consideration of any remedy in respect of missed provision.

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How I considered this complaint

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

Law, guidance and policies

15. 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. 
16. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

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).
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. 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.
20. 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.
21. 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;
• amendment to these elements of an EHC Plan.

Jurisdiction

22. 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)
23. 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. For example, delays in the process before an appeal right started.
24. 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). 

What happened?

25. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
26. Y is 7 years old and experiences communication and interaction difficulties which are additionally impacted by her significantly delayed language skills. She attended School A and was issued with an EHC Plan in September 2024.
27. An EHC Plan annual review was completed at the end of November 2024. It was agreed that Education and Inclusion, and Occupational Therapy assessments would be undertaken.
28. Miss X complained to the Council in June 2025 that it had not issued an amended EHC Plan and failed to secure special educational needs provision for Y.
29. The Council held a telephone call with Miss X about her complaint.
30. The Council responded to Miss X’s complaint towards the end of June 2025.
31. Miss X was not happy with the complaint response and escalated her complaint to stage 2 of the Council’s complaints procedure. After escalating her complaint, Miss X extended her complaint about a missed provision period from 6 months to one year.
32. In July the Council issued a draft revised EHC Plan for Y. In early August 2025, the Council issued a final EHC Plan for Y.
33. The Council responded to Miss X’s stage 2 complaint in mid-August 2025. It upheld part of her complaint about delays to the EHC Plan annual review process.
34. Miss X appealed to Tribunal about Y’s EHC Plan, including sections I and F. The Tribunal has not yet determined Miss X’s appeal.

Analysis

The Councils complaint response

35. In its stage 2 complaint response, the Council said:
• It accepted Y’s final EHC Plan should have been issued by 18 February 2025 and this had not happened until 6 August 2025, a delay of 24 weeks.
• It accepted there was a 7 month delay in making referrals to its communication and interaction team and for an occupational therapy sensory assessment.
• It did not accept there had been missed provision. It said, “The school had submitted a request for exceptional funding on 20 March 2024 to be able to provide Y with the highest level of support that she currently receives. The increase in funding was agreed by the County Council on 08 April 2024. The annual review held in November 2024, reflected upon the provision and added to Section F of the amended draft EHC Plan.”
• It did not accept there were contradictions between the Council’s telephone call to her about her complaint and its stage 1 complaint response.
• it would apologise to Miss X for the referral delays and review the assessment outcomes to identify any missed provision due to the delay.
• It offered Miss X a financial remedy of £350 for the delay to completing Y’s EHC Plan annual review and delaying her right of appeal.

Enquiries to the Council

36. At the time I made enquiries to the Council, there were no therapy assessment reports available. In response to my enquiries the Council said:
• “while it accepts that there was a significant delay and the frustration this caused and therefore proposes a Time and Trouble payment of £500, it cannot agree to a payment for missed provision at this stage.
• as part of the Stage 2 it was agreed that an appropriate SEN Manager would review assessment findings should it identify that there was any missed provision. There is not any evidence to state that this took place as expected and for this we do apologise.
• While it is possible that an OT assessment may identify a need for additional support, the County Council cannot pre-empt the assessment or Tribunal process or assume agreement will be reached through the Working Document process in advance of the hearing.
• while it is possible that an OT assessment may identify a need for additional support…it cannot therefore assume that there is missed provision, as it cannot assume both the contents of the OT report.
• It is aware the delays in this case are not acceptable hence the time and trouble offer of £500 for Miss X to recognise the delay and frustration and an additional £500 to Y herself for the impact of not seeking this assessment sooner. This is a total of £1000 for Time and Trouble, and we want to sincerely apologise to both Miss X and Y regarding the delays.”

Delay to Y’s EHC Plan

37. I agree with the Council there was a delay to Y’s EHC Plan being issued. This is fault by the Council. Miss X suffered a delayed right of appeal. The Council has offered a remedy in respect of this as outlined below.
38. The Council accepts that the two assessments agreed at the November 2024 annual review were significantly delayed. This is fault by the Council. The Council has offered a remedy in respect of this as outlined below.

Missing SEN provision following the EHC Plan annual review

39. Miss X complains that Y has missed special educational needs provision that should have been included in Y’s EHC Plan following the November 2024 annual review.
40. For the reasons outlined in paragraphs 21 to 23 above, I am unable to consider this part of Miss X’s complaint. This is because Miss X has appealed this matter to Tribunal and it is therefore out of the Ombudsman’s jurisdiction.

Complaint Handling

41. Following Miss X’s stage 1 complaint, the Council held a telephone call with her. There is no independent record of what was said during this call.
42. The Council then provided Miss X with a stage 1 complaint response, which recorded a series of actions the Council said it would complete.
43. When she escalated her complaint to stage 2, Miss X complained the stage 1 complaint response was factually incorrect and directly contradicted the resolution confirmed during the earlier phone call.
44. Miss X said the Council had acknowledged fault during the phone call, upheld her complaints and offered an apology but reversed this position in the stage 1 written complaint response. She also said the stage 1 complaint response failed to uphold her complaint about failure to provide educational provision.
45. As I am unable to ascertain what was said during the telephone call, there is insufficient evidence to allow me to make any decision about whether or not the stage 1 response accurately reflects the prior telephone call. I have therefore not investigated this part of Miss X’s complaint any further.
46. The Ombudsman is unable to investigate Miss X’s complaint about missing SEN provision, as set out above.
47. However, in reviewing the stage 1 complaint response, I do not consider it to be satisfactory. The stage 1 response contains a summary of complaint, outlines what the Council will not investigate and promises a formal complaint response as part of a list of actions.
48. The stage 1 complaint response is therefore not actually a complaint response, because it does not detail the Council’s response to Miss X’s complaint. This is fault by the Council. Miss X did not receive a proper stage 1 complaint response.
49. After Miss X escalated her complaint, the Council responded fully and appropriately at stage 2.

Action by the Council

50. The Council has offered a number of remedies as set out below.
51. A payment of £350, “solely to recognise the injustice caused by the delay in issuing the amended EHC Plan rather than for missed educational provision. The calculation was £50 per month of delay for loss of appeal rights.”
52. A payment of £500 to Miss X, “to recognise the delay and frustration”
53. A payment of £500 to Y, “for the impact of not seeking this assessment sooner.”
54. The Council says, “This is a total of £1000 for Time and Trouble, and we want to sincerely apologise to both [Miss X and Y] regarding the delays.”
55. The Council has offered these remedies and provided its rationale for them.
56. I have considered these remedies in respect of the matters within the Ombudsman’s jurisdiction only, and as explicitly referred to by the Council. These remedies are in respect of delay, frustration and time and trouble. I consider these remedies proposed by the Council above to be appropriate.
57. The Ombudsman cannot consider any remedy in respect of missed provision as that is a matter for Tribunal to determine.

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Action

58. To remedy the outstanding injustice caused by the fault I have identified, the Council should take the following action within 4 weeks of my final decision:
• Apologise to Miss X for the fault found. 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.
• Provide training and guidance to staff handling complaints to ensure complaint responses include an actual response to the matters complained about.
59. The Council should provide us with evidence it has complied with the above actions.

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Decision

60. I find fault causing injustice. The Council has already agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman