Summary: Mr X complained the Council failed to transfer his son’s (Y) Education, Health and Care (EHC) Plan from a different Council area and delayed amending and implementing his EHC Plan once he had moved. There was delay, but this was not solely the Councils fault. The Council was at fault for failing to provide section F provision. It suggested an appropriate remedy.

The complaint

1. Mr X complained the Council failed to transfer his son’s (Y) Education, Health and Care (EHC) Plan from a different Council area and delayed amending and implementing his EHC Plan once he had moved. Mr X says Y has missed education and this has caused distress to the whole family. Mr X wants the Council to finalise the EHC Plan and provide Y with a permanent place at school.

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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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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(1), as amended)

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What I have and have not investigated

5. I have only considered Mr X’s complaint about delay issuing Y with a new EHC Plan and finding him a new school when he moved into Council B’s area. I have not considered any delay in the EHC planning process related to Mr X requesting an alternative school for Y, as this did not form part of his original complaint.
6. I have not considered the contents of the EHC Plan. Mr X had a right of appeal to the Tribunal if he was not satisfied with the Plan.

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How I considered this complaint

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

The Education, Health and Care Plan

9. 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. 
10. 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. 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) 
11. 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)  
12. 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. 

General section 19 duty

13. 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.
14. 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)
15. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
16. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

17. I have summarised below the key events; this is not intended to be a detailed account.
18. Mr X has a child who has special educational needs. Council A provided Y with an Education, Health and Care (EHC) Plan.
19. In late October 2024, Mr X contacted Council B and explained they were moving to a new house within its area, and Y had an EHC Plan. Within a couple of days, Council B contacted Council A about this and asked for copies of Y’s EHC Plan and other documents.
20. At the beginning of December, Mr X and his family moved to their new home within Council B’s area. Mr X emailed the Council to notify it of this. Council B responded to Mr X and said it was waiting for the documents from Council A.
21. In the middle of December, Council A sent Y’s file to Council B.
22. Council B consulted with schools at the end of December 2024 and beginning of January 2025. The schools responded within two weeks.
23. At the end of January 2025, Council B sent a copy of the draft amended EHC Plan to Mr X which named a school. Mr X was not happy with the named school and said he would appeal this. Mr X also told the Council there was provision missing from the plan, as agreed by the tribunal. It was during this discussion, Council B realised it had an old version of the EHC Plan.
24. Council B sought alternative provision for Y which was in place by late February. The Council provided three hours of face to face, one to one tutoring for Y, five days a week.
25. In March, the Council consulted with schools with the updated version of the EHC Plan. The schools responded within two weeks.
26. The Council named a new school in the EHC Plan which it sent to Mr X in April.
27. Mr X was not happy with the named school and said he would appeal the Plan. He suggested a preferred alternative.
28. The Council consulted with Mr X’s preferred school at the end of April. It responded positively in early May.
29. The Council finalised the EHC Plan in June 2025. It named Mr X’s preferred school.

The complaint

30. Mr X complained to Council B in the middle of March. He complained it had failed to transfer his son’s EHC Plan. He said Council B had also failed to provide suitable education and section F provision as outlined in the plan.
31. Council B responded in late March. It explained Council A sent a different version of Y’s EHC Plan which was significantly different to the new version agreed at tribunal. Council B had to make further amendments to the EHC Plan and reconsult with schools. It said it had ensured ‘that there is alternative provision for [Y], but it is acknowledged that a full-time school placement is needed in order to fully support [Y]’. It apologised for the delay and upheld Mr X’s complaint.
32. Mr X complained to the Ombudsman in April 2025. He said his son did not have a final EHC Plan or school place.
33. In response to my enquiries, Council B said it provided education to Y through the interim tutoring provision. It said ‘not all provision from section F was provided to [Y] through the interim education offer’. It offered a financial payment of £62.50 per hour of missed therapy.

Analysis

Transfer to the new Council area

34. When a child moves from one council area to another council area, the new council must ensure provision is in place within 15 working days. Y moved at the beginning of December 2024. Taking account of the Christmas holidays, we would expect the Council to have a new EHC Plan and provision in place by the start of the new term in January 2025. Council B had prepared a draft EHC Plan for Y by the end of January which is a slight delay, I do not consider this to be significant enough to be fault. Unfortunately, this was not based on the correct EHC Plan from Council A, as discussed below.

Updating the EHC Plan

35. In late October, Council B contacted Council A and asked for copies of Y’s EHC Plan and accompanying documents. This was within a couple of days of Mr X telling it the family was moving. This is a reasonable timeframe. It is not at fault.
36. When Council B received the EHC Plan from Council A in the middle of December 2024, it updated the plan onto its format and sent it out for consultation by the end of December/ beginning of January. Council B processed the EHC Plan within a couple of weeks of receiving it from Council A. This was over the festive period. I consider this to be a reasonable timeframe. It is not at fault.
37. Council B updated the EHC Plan and named a school for Y by the end of January 2025. This was within a month of sending the EHC Plan out for consultation. We expect the provision to be in place within 15 working days. While this is a slight delay, I do not consider it significant enough to be fault.
38. It was only when Council B sent a copy of the updated EHC Plan to Mr X at the end of January that Mr X and Council B realised Council A had sent the wrong EHC Plan. While this was unfortunate, it was not a fault of Council B.
39. Had Council A sent the correct EHC Plan and documents, Council B would have completed the new plan and had provision in place roughly within the timescale.
40. Once Council B received the correct EHC Plan from Council A in early February, it updated its version and consulted with schools in just over a month. It issued a draft version of the new plan, naming a new school, shortly after. While there was obvious delay as the EHC Plan should have already been in place, this extra delay was not because of fault caused by Council B.
41. Council B finalised the EHC Plan and Y has a place at Mr X’s preferred school. There is no outstanding injustice.

Alternative education

42. As explained above, the section 19 duty means Councils must arrange suitable education for pupils who are out of school.
43. When Council B became aware it had drafted the EHC Plan based on the wrong information provide by Council A, it realised it needed to redraft the plan and reconsult schools. It also recognised it needed to provide alternative provision for Y. It looked for this at the beginning of February, which was within a couple of days realising the mistakes within the EHC Plan. The provision was in place by the end of February. Councils have some flexibility regarding the time taken to set up alternative provision, although we usually expect this to be in place within three weeks. I do not consider there was any significant delay offering the alternative educational provision. The Council was not at fault.
44. Education provided by the Council should usually be full time. Where it is provided on a one-to-one basis with face-to-face provision, the provision can be less as it is more concentrated. The Council offered three hours private tuition to Y, five days a week, during the second consultation period. This is an appropriate amount of alternative education. The Council is not at fault.

Section F provision

45. In response to my enquires, the Council accepted it had failed to implement the section F provision Y was entitled to in their EHC Plan, which was fault. This caused Y to miss out on seven hours of therapy. It apologised for this and offered a financial payment of £62.50 per hour of missed therapy. I consider this is a suitable remedy for the injustice caused.

Action already taken by the Council

46. The Council had updated the EHC Plan and named a school which Mr X is satisfied with.
47. In response to my enquiries, the Council offered the following financial remedies, paid to Mr X:
• £437.50 for missed therapy sessions (this is calculated at £62.50 per hour, Y missed seven hours of therapy); and
• £150 for the distress caused.
48. These are satisfactory remedies which the Council should implement within four weeks of my final decision. I do not need to recommend any additional remedies.

Summary of fault causing injustice

49. The Council is at fault for failing to provide section F provision for Y. It has offered a suitable financial remedy.

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Decision

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

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Investigator's decision on behalf of the Ombudsman