Summary: Miss X complained the Council delayed in carrying out an annual review of their child, Y’s, Education, Health and Care (EHC) Plan and failed to ensure Y received the provision in the Plan. Miss X also complained the Council failed to communicate with her during the process. The Council accepts it was at fault. It has apologised and offered Miss X a payment to recognise the impact of its failings. I am satisfied with the Council’s actions. The Council has agreed to issue Y’s final amended EHC Plan without delay.

The complaint

1. Miss X complained the Council delayed in carrying out an annual review of their child, Y’s, Education, Health and Care (EHC) Plan and failed to ensure Y received the provision in their plan. Miss X also complained the Council failed to communicate with her during the process. Miss X says this has caused her and her family unnecessary distress. She wants the Council to improve its service.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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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How I considered this complaint

5. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
6. 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

Education, Health and Care Plans

7. 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. 
8. 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).
9. The council must arrange for the EHC Plan to be reviewed. For a child under five the council should consider reviewing the Plan at least every three to six months. This complements the council’s duty to review the Plan at least once a year to make sure it is up to date. 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 discontinue 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 and 9.178) 
10. 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.

What happened

11. Miss X’s child, Y, had an Education, Health and Care (EHC) Plan and started attending school A in September 2023. Y was under five. In February 2024 Miss X raised concerns with the Council about whether Y’s school was delivering all the provision in their EHC Plan. She told the Council Y’s annual review should have taken place in October 2023 and was therefore overdue.
12. Miss X complained to the Council in April 2024. She said the Council had still not carried out Y’s annual review and was failing to ensure Y received the provision in their EHC Plan. In its complaint response the Council accepted it had delayed in arranging Y’s annual review. It said this was due to a shortage of annual review officers. It arranged Y’s annual review for 4 June 2024.
13. Miss X asked the Council to escalate her complaint to stage two. She said she remained unhappy with Y’s provision in school.
14. The Council rearranged Y’s annual review for 19 June 2024. At the review the Council verbally agreed to name school B as Y’s placement from September 2024.
15. In July 2024 it responded to Miss X’s stage two complaint. It said, as Y was under five, it should have carried out their review within three to six months of the previous review. This was no later than October 2023. It said this was due to its approach of delegating responsibility to carry out annual reviews to schools. It also said it had failed to give Miss X enough notice for the rearranged annual review. It accepted it had failed to investigate Miss X’s concerns about Y’s provision in February 2024, and Y had likely missed out on the provision in their plan.
16. The Council apologised and offered Miss X £1500 to recognise the delay and Y’s missed provision. It also offered Miss X £500 to recognise its poor communication. It said it would review its practice around annual review timescales and monitoring of EHC Plan provision. It signposted Miss X to the Ombudsman if she remained unhappy. Miss X did not accept the financial remedy.
17. In August 2024 Miss X continued to chase the Council for the outcome of Y’s annual review and whether Y would start at school B in September. Shortly before the start of term the Council verbally confirmed a place for Y at school B and Y started attending. Miss X complained to the Ombudsman. She said she was satisfied with Y’s placement at school B but had still not received the amended EHC Plan.
18. In response to our enquiries the Council accepted it had still not issued Y’s amended EHC Plan and the annual review documentation. It offered Miss X an added £500 to recognise the continuing delay. The Council issued a draft amended plan in January 2025.

My findings

19. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council accepts it should have carried out Y’s review by October 2023. It took place in June 2024 which was a delay of eight months. This is fault
20. Following the review the Council should have issued Y’s amended EHC Plan within 12 weeks, no later than September 2024. While the Council issued a draft amended Plan in January 2025, the Council accepts it is yet to issue Y’s final amended EHC Plan. This is fault. Y is now at school B and Miss X is happy with the placement. However, Miss X lacks the certainty of an EHC Plan setting out Y’s needs and what arrangements school B should make to meet these. The delay in arranging the review and then issuing the Plan has caused Miss X frustration, distress and uncertainty.
21. The Council also accepts it failed to investigate Miss X’s concerns about Y’s provision in February 2024, and Y likely missed out on the provision in their plan. This is fault. Y’s missed provision amounted to a term and a half’s education from when the Council first became aware of Miss X’s concerns until Y moved to school B.
22. The Council has apologised and offered Miss X £1500 to recognise both the impact of the early delay and the term and half of missed provision on Y. It has offered another £500 to recognise the impact of the continued delay on Y. I am satisfied with the Council’s proposed remedy, which is in line with our Guidance on Remedies.
23. Miss X also complained the Council failed to communicate with her. The Council has accepted fault and offered Miss X £500 to recognise the frustration caused by its lack of communication. This is also in line with our Guidance on Remedies and I am satisfied with the Council’s actions.

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Action

24. Within one month of the final decision, the Council has agreed to:
1. Issue Y’s final amended EHC Plan.
2. Pay Miss X £2500 to recognise the impact of its failings on Miss X and Y.
3. Provide the Ombudsman with details of its progress against the review of its practice around annual review timescales and monitoring of EHC Plan provision, as recommended in its July 2024 stage two complaint response.
25. The Council should provide us with evidence it has complied with the above actions.

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Decision

26. I find fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman