Summary: We found the Council delayed acting on a transfer of Miss X’s son’s Education Health and Care Plan when she moved to its area. The Council did not provide a new school place for around 19 weeks and it did not provide her son with alternative education while he was out of school. This caused difficulties for Miss X and her son lost out on education.

The complaint

1. Miss X moved to the Council’s area in October 2024. She complains the Council failed to act on the transfer of her son’s Education Health and Care Plan (EHC Plan) within the timescales set out in the SEN Code and relevant regulations. This delayed placing her son in a new school.
2. She complained the Council failed to respond to her when she repeatedly chased for progress reports and as a result it did not seem the Council cared about the situation.
3. Miss X told us the delay in acting and placing her son in a school impacted his well-being and education and it impacted her mental health.

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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. 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)
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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How I considered this complaint

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

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What I found

Transfer of EHC Plan between councils 

9. 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 it is not aware in advance. 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) 

Maintaining an EHC Plan

10. Councils have a duty to make sure a 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)  

Section 19 Education Act 1996

11. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
12. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What Happened

13. Miss X complains about a delay in the Council providing her son with a new school place and a delay in transferring and updating her son’s EHC Plan accordingly. Miss X’s son is referred to as Y in this statement.
14. Y has had an Education Health and Care Plan (EHC Plan) since 2023. Y is non-verbal and his EHC Plan explains that routine is important to him. The EHC Plan sets out Y’s support needs in a classroom environment and some Speech and Language Therapy needs.
15. Y’s old school emailed the Council in June 2024 to make it aware that Miss X and Y intended to move to its area. At that stage the date of the move was unknown.
16. On 20 September, Devon County Council sent its files to the Council.
17. Miss X spoke to the Council on 10 and 17 October advising the Council she would be moving. She was told that nothing could be done until she actually moved.
18. Miss X moved to Somerset on 19 October.
19. Miss X complained that she called the Council numerous times after they moved to try to gain a school place for Y. She says no action was taken and she had no response to contacts she made.
20. The Council recorded Y was in its area on 19 October. Its records show no action being taken until the Council sent consultations to find a school place on 7 November. A school place was found for Y on 19 November. However, funding was not agreed with the school until January 2025 and there was a delay while the school recruited additional resource. Y was not added to the school roll until 10 March 2025.
21. The Council told us neither Y’s new school, nor the Council provided any education for Y between 19 October 2024 and 10 March 2025. There is no evidence the Council suggested Y should continue to attend his old school in Devon in the interim. So, Y was without an education for this period.

EHC Plan Review

22. Y’s EHC Plan was last reviewed in Devon in May/June 2024. The Council provided evidence that the school arranged a review meeting which took place on 20 May 2025. This was updated to the Council’s systems in June 2025 and was still being processed at the time of the complaint.

What should have happened

23. The SEN code states that when a child with an EHC Plan moves to a new council area, the ‘new’ council must make sure the provision in the EHC Plan begins on the date of the transfer. This is the date of the move if the ‘old’ council was aware of the move in advance.
24. In Y’s case, Miss X advised the Council prior to her move and the ‘old’ council sent its files to the Council well in advance of the move, so the date of transfer was the date of Miss X’s move on 19 October. The Council had a duty to secure Y’s EHC Plan provision from this date.
25. The SEN code requires the ‘new’ council to find an appropriate placement for Y if it would be impractical to expect him to attend the existing school named in the EHC Plan. The Council did not conclude that Y should continue to attend his old school and it took the Council around three weeks to send consultations to schools in its area. During this time it appears it did not update Miss X.
26. Although a school was identified in November, Y was unable to attend until resources had been put in place. So, there was a delay of 19 weeks where Y was unable to attend school. This was fault by the Council.
27. In addition, Section 19 of the Education Act 1996 places councils under a duty to arrange an education where it is clear that a child would not receive an education without such arrangements. This applies whether or not a child is on the roll of a school. It was clear in this case that Y was not in school and would not be receiving an education from late October. The Council did not act to secure an education for Y. This too was fault.
28. The delay in finding Y a school, the failure to provide an alternative education while he was unable to attend and the lack of consideration as to what EHC Plan support could have been provided outside the school environment had a significant impact in Y’s case, as he had significant special educational needs and is non-verbal.
29. Where we find fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as the severity of the child’s SEN, the amount of education lost and whether the period of education was a significant one. In Y’s case I have recommended a payment of £2,800. This is based on £2000 per term of missed education.

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Action

30. Within four weeks of my final decision:
31. The Council should apologise in writing to Miss X and Y for the lack of communication when she moved, the failure to secure a school place in a timely way, the lack of alternative educational provision while Y was out of school, and the difficulties this caused to Miss X.
32. To recognise the lack of educational provision to Y for one and half terms caused by the Council’s fault, the Council should pay Miss X, for Y, £2,800.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman