Summary: Ms X complained the Council delayed accepting her son, Mr G’s, Education, Health and Care (EHC) Plan when it was transferred from another Council’s area in July 2022 and failed to provide any educational provision in the Plan. The Council was at fault. It also failed to provide Ms X and Mr G with relevant appeal rights in relation to Mr G’s EHC Plan. The Council will apologise to Mr G and Ms X for the avoidable frustration they were caused, pay Mr G £7,200 for the two years of specialist provision he missed, and take action to improve its service.

The complaint

1. Ms X complained the Council delayed accepting her son, Mr G’s, Education, Health and Care (EHC) Plan when it was transferred from another Council’s area in July 2022, failed to review and maintain the EHC Plan, and failed to provide any educational provision in the Plan. Ms X said this caused Mr G to miss two years of special educational provision which affected his mental health and wellbeing. Ms X wanted the Council to recompense Mr G for the special educational provision he missed, and to provide the provision in his EHC Plan.

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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. 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)
4. 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.
5. 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)
6. 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

7. I have investigated matters that happened more than 12 months before Ms X complained to the Ombudsman. This is a late complaint as set out in paragraph 3. However, I consider there are good reasons why Mr G and Ms X did not raise this complaint earlier and sufficient records should still be available in order to make a sound and balanced decision. I have exercised discretion to investigate matters between July 2022 and July 2024.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms 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

Relevant legislation and guidance

Education, Health and Care Plan

10. 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.
11. An EHC Plan can be in place up until the young person turns 25, or until the end of the course they are studying or the end of the academic year if they turn 25 before the course is complete.
12. 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.
13. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• 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; and
• amendment to these elements of an EHC Plan.

Provision

14. 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)  

Personal budget

15. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
16. A child’s parent or the young person has the right to request a Personal Budget. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

Transfers

17. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. Where the young person can no longer attend the school or college named in their EHC Plan because of the move, the council must arrange for them to attend another appropriate setting until it can amend the EHC Plan. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014) 

Reviews

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. The process is only complete when the council issues its decision to amend, maintain or cease 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. 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.

Reassessment

20. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
21. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
22. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.

Post 19 considerations

23. For young people with an EHC Plan, preparation for transition to adulthood must begin from year nine (age 13 to 14). Council’s must ensure reviews includes a focus on preparing for adulthood. The Code states all students with an EHC Plan up to the age of 25 should follow a coherent study programme which enables them to achieve the best possible outcomes in adult life. For students who are not taking qualifications, their study programme should focus on high quality work experience, and on non-qualification activity which prepares them well for employment, independent living, being healthy adults and participating in society.

What happened

Background information

24. Mr G is a young adult and lives with his mother, Ms X, and siblings. Mr G has an acquired brain injury that affects the way he thinks, communicates, manages emotions and it affects his behaviour. Ms X supports Mr G. Mr G had an EHC Plan that was written by a different Council, Council 2, in 2016.
25. Mr G’s EHC Plan said he struggled with communication and found conversations very challenging. Mr G’s Plan set out the special educational provision he required, it set out the provision should be reviewed termly. This included:
• A language programme devised to develop his expressive and receptive language skills and address his communication within a social context.
• Support in class in preparation for mock GCSE exams.
• Remedial teaching to support gaps in numeracy knowledge.
• Support with organisation to ensure Mr G had the correct equipment and attended on time.
• A programme to develop handwriting.
26. Mr G moved to this Council’s area in 2017. Council 2 did not inform the Council of Mr G’s move at the time. In 2017 Mr G should have transitioned to post 16 education.

Events subject to this investigation

27. Council 2 informed this Council that Mr G had an EHC Plan and had moved to its area, in July 2022. By now, Mr G was 21 years old.
28. The Council contacted Ms X in August 2022 about Mr G’s EHC Plan. The Council said Ms X requested a reassessment of Mr G’s EHC Plan which it considered in February 2023. The Council said it decided it would be better for Mr G to access a suitable course and then decide if an EHC Plan was still required. There is no evidence the Council provided its decision or appeal rights on the reassessment to Mr G or Ms X.
29. A new caseworker contacted Ms X in April 2023 and explained the previous caseworker had left and asked what Mr G had been doing since 2017. They asked if Mr G had identified a course he wanted to attend. Ms X explained Mr G had tried to enrol on various courses but had not been successful without support. Mr G wanted to learn a trade. Ms X explained Mr G struggled with conversations on the phone and it was better to contact him through Ms X.
30. Ms X contacted the Council at the beginning of December 2023 and told it Mr G wanted to take legal action as the Council had failed to meet the needs set out in his EHC Plan. In response the Council agreed to carry out a review meeting of Mr G’s EHC Plan and organised one for later that month. A third new caseworker again asked for information about the type of course Mr G wanted to do.
31. The Council responded to Ms X’s complaint immediately. It said it did not know Mr G was living in its area and had an EHC Plan until July 2022. Its communication with Ms X and Mr G since then had been poor. It said it had not completed an annual review since it received Mr G’s EHC Plan, but it had now arranged one. The Council acknowledged Mr G had started a college course and a training course but was unable to continue the courses without support, and understood Mr G wanted to learn a trade such as electrics, plumbing or construction. It upheld the complaint and offered an apology.
32. The case worker told Mr G that as he was over 16 he had the right to make decisions and requests about his EHC Plan and so they would communicate directly with him, and not Ms X. The Council held the review meeting with Ms X and Mr G. There is no record of the discussion during the meeting. The Council said it would complete a referral for a construction course and support with employability skills as a result.
33. The Council issued a draft EHC Plan for Mr G’s comments in January 2024. There is no evidence it sent the draft Plan to Ms X.
34. In January the case worker asked Mr G to make contact with the employability skills service they had referred Mr G to. Mr G said he did not understand why he was contacting them.
35. The Council issued a final EHC Plan for Mr G in February 2024. It recorded Mr G had a learning disability that affected his communication skills, attention, working memory and executive skills and meant that he was not completely independent in his self-help skills. The Plan did not specify the name or type of provision Mr G should attend. It set out the specialist educational provision Mr G should receive which included:
• A language programme devised to develop his expressive and receptive language skills and addresses his communication within the social context.
• Encouragement to start tasks independently.
• A trusted adult to talk to when Mr G was feeling anxious or overwhelmed.
• Regular social skills training.
36. There is no evidence the Council sent the final amended EHC Plan to Mr G or Ms X or provided the associated appeal rights to the SEND Tribunal.
37. Mr G contacted the case worker in March 2024 and said he had spoken to the service he had been referred to, but they were not helpful. Mr G said he thought the Council would help finding a construction course, but it had not offered any support. The case worker told Mr G it was not in their remit to help him find a course, but if he told them what he wanted to do they could look into it.
38. Ms X contacted the case worker about the same matter. The caseworker said they would speak with Mr G, as he was over 16. Ms X said she intended to complain as Mr G was now back at square one without support.
39. Having made no progress, Mr G asked the Council for a personal budget in April 2024. He said he was unsupported through his EHC Plan. He wanted a personal budget for care and support for independent living, for a personal assistant to support him attending activities, transport costs, and support in college or a job. The case officer told Mr G he would take the matter to a panel for a decision. There is no evidence the Council provided a response to that request.
40. The Council told Mr G at the end of May that he was not engaging in any options it suggested so it was considering ceasing his EHC Plan. Mr G told the Council he had applied to a college and asked for support on getting on the course. The Council sent a consultation to the college for the trade course.
41. Ms X asked for a review of Mr G’s EHC Plan in early June. She said important information about Mr G’s health and needs had been removed from the draft Plan. The Council said it would not hold a review as there had been no significant changes since the previous review. The Council said it had consulted another college about a construction course.
42. Ms X complained to the Council in July 2024. She said the Council had done nothing to support Mr G to access education or training and he was disadvantaged. Ms X said the EHC Plan was not correct and the Council had removed vital information about Mr G’s needs, and she only had a draft copy of the EHC Plan. Ms X said the Council had failed and delayed in supporting Mr G.
43. The Council responded and said Mr G’s new case worker had sent a consultation to a college Mr G was interested in attending and it would update Mr G when the college responded. It said that it sent the draft and then the amended final EHC Plan to Mr G in February 2024 with his appeal rights.
44. Ms X and Mr G remained unhappy and Ms X complained to us.

Other relevant information

45. Mr G’s EHC Plan was due for annual review in December 2024. In May 2025 the Council told me it had not completed an annual review. I have not investigated what happened after July 2024. Ms X and Mr G can raise a new complaint about matters after July 2024, however the information is relevant to the recommendation I have made below.

My findings

Transfer

46. When Mr G moved to the Council he had an EHC Plan. As the Plan was not ceased, it remained in force. The Council was aware in July 2022 that Mr G was living in its area, and had an EHC Plan. In line with the Code it should have ensured the provision was in place within 15 days or ensured it placed Mr G in an appropriate setting until the Plan was formally amended. It should then have reviewed the Plan within three months, so by October 2022, and issued the amended EHC Plan within a further eight weeks, by December 2022. The Council did not secure the provision or find an appropriate setting for Mr G, did not complete a review until December 2023, after Ms X had complained, and did not issue the amended EHC Plan until February 2024. That was fault and meant Mr G did not have an EHC Plan that properly identified his needs for 14 months. This caused both Ms X and Mr G frustration. I have considered the specialist educational provision in paragraph 49 below.
47. The Council did not provide Ms X or Mr G with the amended final EHC Plan in February 2024, or their appeal rights if they disagreed with the content of the EHC Plan. That was fault. The records show the Council considered it did not need to communicate with Ms X, as Mr G was over the age of 16. Whilst there was no fault in the Council communicating directly with Mr G, the records show he struggled with organisation and communication and Ms X, as his parent, supported him with both. The Council did not ask Mr G if he wanted Ms X to be excluded from communication or had reason to believe it was inappropriate to share information with her. The failure to include Ms X in important communication and provide her a copy of the final amended EHC Plan meant they were both unaware the Plan had been finalised and were prevented from appealing to the SEND Tribunal if they disagreed with the Plan, which Ms X indicated that they did.

Reassessment

48. Ms X asked the Council to complete a reassessment for Mr G in September 2022. At that point Mr G’s Plan had not been reviewed for four years and he had been out of education and training for the same amount of time. The Council should have told Ms X and Mr G of its decision within 15 days and provided their appeal rights to the SEND Tribunal if they disagreed. The Council delayed making a decision for four months and did not inform Ms X and Mr G of its decision and their appeal rights. That was fault and caused Ms X and Mr G frustration and missed appeal rights.

Provision

49. Although Mr G was beyond the age of compulsory education, the Council still had a duty to make sure Mr G received the special educational provision set out in his EHC Plan (Section 42 Children and Families Act). Mr G’s Plan should have included a focus on preparing for adulthood, as set out in paragraph 23, either through qualifications or appropriate work experience or suitable activities. Whilst the case officer sent a referral for an employment skills course and consultation to a college they also told Mr G it was not in their remit to find an appropriate course for him. The records show Mr G tried to identify and enrol on many appropriate courses based on the outcomes he wanted to achieve, but was unsuccessful without support. The Council did not secure the provision either in Mr G’s legacy EHC Plan, or the amended final EHC Plan between July 2022 and July 2024, which was fault. As a result of the Council’s fault, Mr G missed out on two years of specialist educational provision.

Personal budget

50. Mr G requested a personal budget in April 2024 as he felt he was not receiving any support from the Council. The Council should have considered the request and, if it decided to refuse, set out the reasons in writing along with the right to request a review of the decision. The Council did not consider the request or provided a written response. That was fault and caused Mr G frustration.

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Action

51. Within one month of this decision the Council will:
1. Write to Mr G and apologise for the specialist educational provision he missed, and the avoidable frustration and missed appeal rights he experienced as a result of the Council’s faults;
2. Pay Mr G £7,200 for the two years between July 2022 and July 2024 he missed the specialist provision in his EHC Plan. This takes into account Mr G’s specific circumstances at the time and is in line with our guidance on remedies;
3. Pay Mr G a further symbolic amount of £500 to recognise the avoidable frustration and missed appeal rights he was caused by the Council’s delay in completing an initial transfer review and failure to provide its decisions, final EHC Plan and appeal rights;
4. Complete a review of Mr G’s EHC Plan and issue its decision with associated appeal rights to Mr G and Ms X; and
5. Write to Ms X and apologise for the avoidable frustration she was caused by the Council’s delay in completing an initial transfer review, failure to include her in important correspondence, and failure to provide its decisions, final EHC Plan and appeal rights. The Council will pay Ms X a symbolic amount of £500 to recognise the same.
52. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
53. Within three months of the final decision the Council will:
1. Review how it manages and oversees transfers in of EHC Plans for children and young people moving to its area to ensure it complies with Section 15 of the SEND regulations 2014, and how it communicates with young people and their parents or carers about important decisions within the EHC process and subsequent appeal rights. The Council will identify a timebound action plan to complete any improvements that are required to avoid the same faults occurring in the future; and
2. Consider this decision at a relevant scrutiny committee and decide if there are any further action the Council intends to take in relation to the identified faults.
54. The Council will provide us with evidence it has complied with the above actions.

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Decision

55. I find fault causing injustice. The Council has agreed to my recommendations to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman