Summary: Miss X complains the Council did not properly review her child D’s Education, Health, and Care Plan and ensure it was suitable for them. There was fault by the Council which caused avoidable distress to D and Miss X, and uncertainty about what special educational needs provision D may have missed. The Council agreed to apologise, agrees a dated action plan with Miss X of next steps for updates to D’s Education, Health, and Care Plan, and pay a financial remedy. It will also make an action plan of how it will avoid recurrence of the same faults and report this to its SEND Governance Board for monitoring.

The complaint

1. Miss X complains the Council failed to provide suitable special educational needs (SEN) support for her child, D, in 2023 and 2024. Miss X says the Council:
• delayed in reviewing D’s Education, Health, and Care (EHC) Plan after a review meeting in May 2023;
• failed to arrange an Occupational Therapy assessment D needed as part of the review for the updated EHC Plan to meet their needs; and
• failed to deliver the outcomes it promised when it investigated Miss X’s complaint about this. In its April 2024 complaint response it said it would review the Plan urgently, but still did not do this.
2. Because of this, Miss X says D’s EHC Plan was out of date and not suitable for them. They struggled in school without support they needed, which affected their mental health. Miss X also could not get extra support for D from other services which needed the EHC Plan as evidence for access, because the Plan did not properly explain D’s needs. These issues caused Miss X stress.
3. Miss X wants the Council to review D’s EHC Plan urgently, so it is suitable for their needs. She also wants compensation.

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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 suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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. 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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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)

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How I considered this complaint

9. I considered:
• information provided by Miss X and discussed the complaint with her;
• documentation from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
10. Miss X and the Council had opportunity to comment on my draft decision. I considered any comments received 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).

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What I found

Legislation and guidance

Education, Health, and Care (EHC) Plans

12. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
13. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for producing and reviewing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.

EHC Plan reviews

14. 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 take place. The process is only complete when the council issues a decision about the review.
15. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
16. 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 this decision within four weeks of the date of the review meeting.
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.
18. The Council must then issue any final amended EHC Plan within eight weeks of the notice of proposed amendments. (R(L, M and P) v Devon County Council [2022]). Therefore, it must issue a final Plan within twelve weeks of the review meeting.

EHC Plan appeal rights

19. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
20. There is a right of appeal to the SEND Tribunal against:
• a decision not to amend an EHC Plan following a review;
• once a Council issues a final EHC Plan, the description of the child’s SEN, the SEN provision specified, the school or placement specified, or the fact that no school or other placement is specified.
21. We can look at complaints about delays in the process before an appeal right started.

What happened

22. D started year 6 in September 2021. Following an EHC Plan review, the Council issued a final amended EHC Plan for D in December 2021.
23. In September 2022, D started year 7 at a special secondary school. In May 2023, in the final term of year 7, D’s school held an EHC Plan annual review meeting. The Council did not attend the meeting.
24. D started year 8 in September 2023. Following the May 2023 review meeting, the Council had not yet issued its decision about whether it would amend the EHC Plan. In March 2024, the Council had still not issued its decision, so Miss X complained.
25. In April 2024, a month after Miss X complained, the Council wrote to Miss X that it proposed to amend D’s EHC Plan following review. It did not include details of the proposed amendments. The next day, it responded to Miss X’ s complaint. The Council:
• accepted it was at fault because it had delayed in the review process after the May 2023 review meeting. It said it never received the meeting paperwork from D’s school and apologised it had missed this. It said it had asked D’s school for the paperwork and would update the Plan once it received this; and
• said it would ask D’s school to arrange a new annual review meeting soon to update the EHC Plan further. The Council caseworker would be in touch with Miss X directly to respond to her request for updated Occupational Therapy (OT) and Speech and Language Therapy (SaLT) assessments to inform updates to the EHC Plan.
26. Miss X came to the Ombudsman three weeks later.
27. After Miss X came to the Ombudsman:
• the Council told us it had found out D’s school no longer held copies of the May 2023 annual review paperwork, so it could not update the SEN provision in the Plan. However, it had still issued an amended EHC Plan to complete the May 2023 review. It said this amended Plan only included changes to the section containing Miss X and D’s views (because Miss X had provided this part of the paperwork to the Council directly). Miss X said this is not correct and she did not receive any updated final Plan for D;
• D’s school held a further annual review meeting in May 2024, as the Council had asked it to following the complaint response. When D started year 9 in September 2024, the Council had not issued a decision about whether it would amend the EHC Plan following this May 2024 review. The school then held another review meeting in November 2024. At the start of January 2025 the Council issued a draft EHC plan, but had not issued a final EHC Plan.

My findings

Period investigated

28. Miss X said the last final EHC Plan the Council issued was in December 2021. She said the Council did not properly review D’s EHC Plan after this, so it missed an annual review between the December 2021 EHC Plan and the May 2023 annual review meeting. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons to. Miss X first came to the Ombudsman in April 2024, so we would usually only look at what happened after April 2023. I have not investigated events before April 2023. I do not consider there are good reasons it took Miss X longer to complain. I am satisfied Miss X could have complained sooner to the Council, and to the Ombudsman, about events before April 2023.
29. Miss X says issues with D’s EHC Plan continued after she came to us in April 2024. However, I have not investigated events after this. The law says councils must have reasonable opportunity to respond to a complaint before we look at it. If Miss X wishes to complain about the review process followed by the Council after the May 2024 review meeting, she would need to make a new complaint to the Council about this first. If she remains dissatisfied following the Council’s response, she could then make a new complaint to us to ask us to consider it.

EHC Plan review

30. We can look at delays in the EHC Plan review process. We expect councils to follow statutory timescales set out in the Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
31. After the May 2023 review meeting, the Council should have decided whether it would amend D’s EHC Plan within four weeks. It took eleven months to tell Miss X it proposed to amend the Plan, and only did so after Miss X made her complaint. The Council accepted it was at fault because it failed to complete the review within statutory timescales.
32. When the Council wrote to Miss X in April 2024 to say it would amend the EHC Plan, it did not include any details of what amendments it proposed to make. This was out of line with the Regulations and Code, so was further fault.
33. On the balance of the evidence available, I decided the Council did not issue any amended EHC Plan to complete the May 2023 review, as it said it had after the complaint. I also found the Council did not explain to Miss X what it told the Ombudsman, that D’s school no longer held copies of the May 2023 annual review paperwork. The Council’s failure to properly follow up on its complaint outcome and explain this to Miss X, was fault.
34. On the balance of probabilities, I also find the Council did not contact Miss X following its complaint response as promised. It did not respond to her request for updated OT and SaLT assessments to update the EHC Plan. This was fault.

Injustice caused

35. Delays and failure to complete the review caused frustration and distress to D and Miss X. I cannot say, even on the balance of probabilities, what SEN provision D may have missed from August 2023 (the deadline for issuing an amended EHC Plan), and April 2024 (when Miss X came to us). Too much time has passed since the May 2023 review meeting, and the records of what was discussed and proposed are lost. There remains uncertainty about what provision the Council may have included in the EHC Plan had it completed the review on time, and properly considered Miss X’s comments about updated assessments she thought D needed. The uncertainty that remains causes D and Miss X distress, for which the Council should provide a remedy.
36. The Council’s delays also frustrated the family’s right to appeal to the SEND Tribunal about the provision in the EHC Plan. The right of appeal only arises when a council issues a final EHC Plan.

Recurrent fault by the Council

37. The Council accepted it was at fault because it failed to complete the review within statutory timescales. It said it would remind its staff of the importance of following up on EHC Plan reviews.
38. However, we have repeatedly found fault with the Council for failing to complete EHC Plan reviews within statutory timescales and it has repeatedly, because of our recommendations, issued reminders to its staff about this. Three of these reminders were during the period Miss X complains about but did not prevent the faults in her case. Therefore, I have recommended the Council takes further action.

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Agreed action

39. Within one month of our final decision, the Council will:
1. apologise to D and Miss X for the faults identified and the impact of those faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology;
2. meet with Miss X to discuss next steps for D’s EHC Plan. As part of this meeting, it will seek and record Miss X’s views about:
1. updates needed to the EHC Plan, including any views about D’s school placement;
2. any updated assessments Miss X considers D needs to update the EHC Plan, such as OT and SaLT assessments; and
3. whether Miss X would like to request a personal budget/ direct payments for the provision in D’s EHC Plan.
3. following the meeting with Miss X, within two weeks it will write to her to confirm:
1. whether it has agreed to arrange any updated assessments Miss X asked for, and if not the reasons for this;
2. its process for considering any personal budget/ direct payment request made by Miss X, including timescales; and
3. a full action plan of next steps, with dates. It will provide the Ombudsman with a copy of this action plan.
4. pay Miss X a total of £1,000, comprising of:
1. £500 to recognise the avoidable distress and uncertainty caused to D; and
2. £500 to recognise the avoidable distress and uncertainty caused to Miss X.
40. Within three months of our final decision the Council will review the six cases from 2023 and 2024 where we found similar fault and recommended reminders to its staff about EHC Plan review timescales. It will:
1. produce a dated action plan of how it will avoid recurrence of the same faults by making changes to practice and procedure or staff training; and
2. report this review outcome and action plan to its SEND Governance Board so it can decide how progress against the plan should be monitored.
41. The Council will provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation. There was fault by the Council which caused avoidable distress to D and Miss X, and uncertainty about what SEN provision D may have missed. The Council agreed to our recommendations to remedy this injustice. It will also make an action plan of how it will avoid recurrence of the same faults and report this to its SEND Governance Board for monitoring.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman