Summary: The Council failed to make sure that Mrs B’s son received his full provision as set out in his Education Health and Care Plan. There was fault by the Council because it failed to review and amend the Plan in accordance with government guidance. The lack of support meant that her son failed his college exams and lost his apprenticeship. The Council has improved how it handles transitions for post-16 students, with a new dedicated team. It should also apologise to Mrs B and her son, and make a payment to recognise the impact on them both.

The complaint

1. Mrs B complains that the Council failed to:
• properly inform her son’s college about the Education Health and Care (EHC) Plan;
• failed to make sure the special educational provision was made; and
• wrongly told the college that the Plan had ceased.
2. Mrs B says that this meant her son did not receive the support he was entitled to. He could not pass his apprenticeship exams and could not stay on his apprenticeship, meaning he lost his job. This has had a significant effect on his mental health and his future plans.

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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. 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

5. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
6. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
7. 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

The law and guidance

8. 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.
9. 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). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
10. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

11. 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 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) 
12. For young people with an EHC Plan, preparation for transition to adulthood must begin from year nine (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate.  
13. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution.
14. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

The Council’s process for enrolment at college with an EHC Plan

15. The Council says the young person and parent would usually apply to the college, and show the EHC Plan to the college. The Council would become aware that the young person intends to enrol at the college either through the annual review process or because the college contacts the Council. The Council would then send a formal consultation to that college to check it could meet the needs and provision set out in the EHC Plan.
16. The college would then have to request funding via the High Needs Funding system.

What happened

17. Mrs B’s son, Mr K, had an EHC Plan and in September 2023 he started an apprenticeship with time at college and exams to pass. Mrs B says the Council failed to properly inform the college about Mr K’s provision under his EHC Plan and this meant that the support was not in place.
18. The Council reviewed Mr K’s EHC Plan in December 2022 when he was in Year 11 of his secondary school as required but by mistake it recorded him as being in Year 10. The Council should have amended Mr K’s plan by the end of March 2023 for him to transition to college but it did not. This meant the Council did not consult the college. Mrs B shared the EHC Plan with the college but it did not contact the Council, nor did it ask the Council to fund additional support (which is available for high need students regardless of whether they have an EHC Plan and is the means for a college to deliver EHC Plan provision).
19. In 2024 the Council formed a post-16 Team and this team considered whether to cease Mr K’s EHC Plan. The Council did not tell Mrs B or Mr K this, but as the college contacted the Council, it notified the college that it was considering whether to cease the Plan.
20. Mrs B made a formal complaint to the Council in July 2024. She said that her son had not had the provision set out in his EHC Plan and that the Council had told the college that it was ceasing the Plan. Mrs B explained that the lack of support had meant that her son had failed his exams and lost his apprenticeship, when he was capable of passing with the right support. Mrs B asked the Council to address this urgently.
21. The Council responded to Mrs B’s complaint. It told her that complaints about the college should be directed to its complaints procedure. The Council did not address the complaint about communication with the college or Mr K’s missed provision. It told Mrs B that it had intended to cease the plan but it will hold this until Mr K’s annual review which was due in September 2024. The Council told Mrs B that if she was dissatisfied with the response, she could complain to the Ombudsman.
22. At that point the Council asked the college to complete the annual review of Mr K’s EHC Plan. The college held an annual review meeting in October 2024 and the Council attended. By this time, Mr K’s apprenticeship placement had broken down. The Council offered alternative educational provision until Mr K could restart a new college course in September 2025. However, he decided to take a break from education. The Council has not ceased the EHC Plan and has sent Mr K and Mrs B an amended EHC Plan for when he wishes to transfer to a new college course. It will consult a college when Mr K has decided where he wants to go.

Findings

23. In response to my investigation. The Council has acknowledged that it made some significant errors and these meant that Mr K’s EHC Plan was not amended for him to start college and he did not receive the correct support whilst there.
24. The Council missed several opportunities to make sure that Mr K was getting the educational provision he was entitled to under the EHC Plan. The Council had done some preparation for post-16 choices as part of earlier reviews but it should have made sure that it reviewed and amended Mr K’s EHC Plan by 31 March 2023 for his transfer to post-16 education, and it did not.
25. Councils can delegate the holding of the review meeting to a school or college, but it remains responsible for completing the review. The Council should have made sure that the annual review of Mr K’s Plan took place in the academic year 2023/2024 and it did not. It had lost track of Mr K’s educational setting and his provision.
26. The Council told the college that it was considering ceasing the EHC Plan, but it had no basis to do this without an up-to-date annual review. This resulted in the college withdrawing any support that Mr K was receiving.
27. The Council told Mrs B to complain to the college about the lack of provision. This might be appropriate with minor problems in the provision of an EHC Plan, but the Council failed to fully recognise that it is responsible for the delivery of that provision, not the college. In its response, the Council did not accept responsibility, offer any explanation to Mrs B, nor apologise for the mistakes it had made in not amending the EHC Plan on time. In addition, given that in this case, there was no EHC Plan provision at all, I would have expected the Council to contact the college direct to establish the position and respond to the complaint, rather than refer Mrs B to the college.
28. The SEN Code of Guidance sets out specific requirements for important educational transitions precisely because many young people with an EHC Plan need additional support or attention around these transitions to reach their potential.
29. Mr K may have had some support from the college but he did not have the full provision as set out in his EHC Plan, particularly after the Council told the college it was considering ceasing his Plan. The latter half of the college year was particularly important as Mr K had to pass the exams to stay on the apprenticeship and without the support he failed the exams and lost his apprenticeship. Mrs B has described how this has impacted on his mental health and his motivation and she has had to support him in activities to try to improve these.
30. The Council has offered to apologise to Mrs B and Mr K and pay them £3,000 in respect of the missed provision. I have consulted the Ombudsman’s guidance on remedies and although the Council’s offer is significant, it does not reflect the impact of the three terms of missed provision. I have increased the amount to £4,000 which better reflects the impact and our guidance.
31. The Council should also make a symbolic payment to Mrs B in recognition of the distress the Council caused her and that it missed the opportunity to take responsibility for the situation when she complained to it.
32. The Council had already identified that it did not have good enough oversight of young people with an EHC Plan who wanted to transfer to college, and that this needed improvement. It has formed a dedicated post-16 team to process its backlog of EHC Plan amendments for these young people, and to monitor their provision at college. Although this did not resolve matters soon enough for Mr K, the team started its work with a backlog and in itself it is a welcome service improvement. I have not recommended any further service improvement save that the Council should share this decision with the relevant staff.

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Action

33. The Council will within one month of the date of this decision:
• Apologise to both Mr K and Mrs B separately. 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.
• Pay to Mrs B £4000 in respect of the impact of the missed provision.
• Pay to Mrs B £300 in recognition of the distress it caused her, and an additional £200 in recognition of the impact on her when it failed to fully engage with her complaint to it.
• Share this decision with relevant staff responsible for maintaining EHC Plans, particularly around transition to different phases of education.
• Share this decision with relevant staff responsible for dealing with complaints about provision not made under and EHC Plan and remind them that the Council remains responsible for provision under a Plan.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman