Summary: The Council failed to complete an annual review of an Education, Health and Care Plan, held during an ongoing appeal, in line with Statutory Regulations. This meant provision that may have been added to the Plan was delayed until the end of the appeal. The Council also failed to meet statutory timeframes for amending the Plan after the Tribunal order, but this did not, on the balance of probabilities, cause significant injustice. The Council has agreed to apologise, make a symbolic financial payment to acknowledge the uncertainty and distress, and make service improvements.

The complaint

1. Ms X complains about the way the Council has handled her child Y’s education and special educational provision.
2. Ms X complains:
• The Council named an unsuitable school in Y’s Education, Health and Care (EHC) Plan which could not meet Y’s needs. The school put Y on a reduced timetable and the Council failed to intervene to provide suitable alternative education Y could access.
• The Council issued a decision to amend the EHC Plan in April 2025 but did not provide a draft plan and did not complete the amendment process to issue a final amended version within twelve weeks. Instead, the Council relied on the working document process to amend the Plan via the Tribunal appeal process.
• After the end of the Tribunal process the Council failed to issue the amended final Plan within the statutory timeframe.
3. Ms X says as a result of the fault, Y missed out on education and the Council caused unnecessary distress and inconvenience.

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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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure special educational provision as set out in Section F of the young person’s EHC Plan.
8. 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)
9. 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.
10. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.
11. 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

12. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
14. 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 found

Relevant law and guidance

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 council can do this.

16. 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 (SEN) and Disability Regulations 2014 and SEN Code paragraph 9.176) 
17. 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.
18. The statutory process for reviews is not affected by any related appeal to the Tribunal.
19. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s special educational needs (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.

20. 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)
21. 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 special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
22. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
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.
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). 

Chronology of events

25. In late 2024, the Council issued an EHC plan for Y naming School A, the mainstream primary school Y already attended.
26. Ms X considered School A could not meet Y’s needs and said the Council had named it without consulting the school.
27. Ms X appealed the final EHC Plan to the Tribunal in early 2025. Ms X asked the Tribunal to name a special school, School B.
28. A review of the EHC Plan was held in April 2025. The Council’s decision after the review was that the Plan needed to be amended. It issued a decision letter but no amendment notice showing what changes it intended to make to the Plan. Instead, the Council used the working document process in the appeal and provided its suggested changes in July.
29. Ms X complained the Council’s suggested changes did not reflect the discussions at the review meeting.
30. In Summer 2025 we considered a complaint by Ms X about Y missing education in 2024/5. Ms X said the school had put Y on a reduced timetable, and the Council had failed to intervene to ensure Y received suitable fulltime education and the provision in Section F of the EHC Plan, for example by providing alternative education.
31. We found the complaint about missed education and alternative provision was outside our jurisdiction because Ms X had used an alternative legal remedy of the Tribunal appeal.
32. Ms X’s appeal was concluded in October 2025 with agreement Y attend School B. Representatives from School B attended the oral hearing and discussions were held during the day of the hearing to ensure Ms X was satisfied School B could meet Y’s needs. This is referenced in the Tribunal decision.
33. The Tribunal ordered the Council to:
• Amend the Plan to name the new school within two weeks of the order;
• Amend the special educational provision in the Plan within five weeks of the order.
34. The Council arranged for Y to start at School B two weeks after the date of the order, but it was thirteen weeks late in issuing the amended Plan.
35. The Council has accepted this delay was fault but says the delay did not cause significant injustice as Y was able to start at the special school on time. The Council also accepted there was an administrative error related to wording in Section B (description of Y’s SEN) which it corrected.
36. The Council has apologised to Ms X and accepted fault in several areas (including issues not within our jurisdiction). Ms X remains dissatisfied because:
• The Council has not accepted it should have issued a final amended Plan after the Spring 2025 review. It says this would have caused confusion with the ongoing appeal and working document process. Ms X says updating the Plan would have allowed Y to access special educational provision added to the Plan sooner.
• The Council has not provided a financial remedy for the missed education or the distress caused.
• School B did not have an accurate Plan for four months and Ms X considers this meant Y did not have access to all the necessary special educational provision.
37. Ms X brought her complaint to the Ombudsman in late 2025.

What I have and have not investigated

38. I have not investigated whether Y missed out on education in 2024/5 or whether the Council should make a financial payment for missed education. We issued a final decision on this part of the complaint in 2025, finding it was outside our jurisdiction due to the related appeal. The period for which we could not consider loss of education continued until Autumn 2025 when the appeal was resolved. (Local Government Act 1974, section 26(6)(a), as amended). Y then moved schools and education was provided.
39. I have investigated the Spring 2025 review process. While I cannot comment on the nature of any changes to the Plan, as these were considered by the Tribunal, I can comment on the administration of the review.
40. The Council has admitted delay in issuing a final amended Plan after the Tribunal decision and has apologised.

Analysis

41. The Council did not follow the correct process for the Spring 2025 review. This was fault. The process is set out in law, and the law does not make any provision to suspend the usual amendment process when there is an appeal.
42. The correct process would have been to complete the annual review in the usual way, issuing an amendment notice together with the decision letter to amend, and completing the amendments within twelve weeks of the review meeting in March.
43. This would have led to another final Plan being issued, which Ms X may have wished to also appeal. The Tribunal can accommodate this situation; the original appeal continues but is amended to include the appeal against the second final Plan.
44. Ms X is correct to say this may have led to some changes in Y’s EHC Plan being made by July rather than November. The uncertainty of whether this may have altered the provision available to Y is an injustice.
45. The timescales when actions need to be taken after a Tribunal order are set out in SEND Regulation 44. The Council failed to amend the Plan in line with statutory timescales and has accepted this was fault and apologised. Y did however start at School B within two weeks of the final order.
46. I am not persuaded the delay meant School B was unaware of Y’s needs or the provision that was required to be made for four months. School B was a special school, two members of senior staff had attended the hearing in person, and there were discussions about the provision with Ms X on the day of the hearing. School B therefore did have insight into the provision required before Y started.
47. Documents from the next review held in Spring 2026 show Y had settled into School B well and was making progress.
48. I find there was a thirteen-week delay by the Council in amending the Plan, but I do not find this caused Y significant injustice. I am satisfied the apology already provided is a suitable remedy.

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Agreed action

Within four weeks of my final decision:

49. The Council will apologise to Ms X for the error in failing to complete the Spring 2025 review correctly.
50. The Council will pay Ms X, on behalf of Y, £200 to acknowledge the impact of this delay and the uncertainty whether different provision would have been available to Y sooner.

Within two months of my final decision:

51. The Council will update training and guidance for officers to ensure that reviews held during appeals are completed in line with statutory requirements.
52. The Council will provide us with evidence it has complied with the above actions.

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Decision

53. I find fault causing injustice. The Council has agreed actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman