Summary: Mrs W complained on behalf of her son Mr X that the Council failed to follow its legal duties when his Education, Health and Care Plan was transferred to it, did not respond to requests for mediation and a new needs assessment, and gave inadequate responses to her requests for contact and complaints. We find the Council at fault for failing to follow its duties regarding the Education, Health and Care Plan and for poor communication and complaint handling. This caused significant injustice of distress, uncertainty, and missed educational provision. The Council agreed to apologise, make a symbolic payment, review the plan and make service improvements to remedy the injustice.

The complaint

1. Mrs W complains on behalf of Mr X about the Council’s handling of his Education, Health and Care (EHC) Plan when he moved into its area. In particular she complains the Council failed to:

1. Follow its legal duties when Mr X’s EHC Plan was transferred to it from his old Council.
2. Respond to her request for mediation or a new EHC needs assessment.
3. Provide adequate responses to her regular requests for contact and formal complaints.

2. She says the Council’s failures caused Mr X to miss provision he was entitled to, denied their right of appeal to the Tribunal and caused significant distress to Mr X and her.

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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. 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.
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. 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

8. I have investigated from 19 April 2024 when Mr X’s EHC Plan was transferred to the Council, until 24 October 2025 when the Council provided its stage two complaint response.
9. I have considered whether a right of appeal to the Tribunal about an earlier decision to cease the EHC Plan, made by a different council, prevented me from investigating the complaint. The transfer meant the Council had a later duty to review the plan and notify Mrs W of its intention to do so. It contacted Mrs W after the transfer and said it would let her know its next steps, but failed to do so. In the circumstances I have decided it would be unreasonable to expect Mrs W or Mr X to use a right of appeal against an earlier decision. This is because they had a reasonable expectation the Council would comply with its duties to provide her information and review the EHC Plan. I have therefore decided the earlier right of appeal does not prevent me from investigating the complaint.

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How I considered this complaint

10. I considered evidence provided by Mrs W and the Council as well as relevant law, policy and guidance.
11. Mrs W and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
12. 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

Law and Guidance

13. The relevant statutory guidance is called the SEND Code of Practice: 0 to 25 years. I refer to it as the Code.

Education, Health and Care (EHC) Plans

14. A child or young person with special educational needs may have an 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. 
15. The EHC Plan is set out in sections which include Section F: The special educational provision needed by the child or the young person. 
16. 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)
17. 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. A review meeting must take place. Following the review meeting the council must issue a decision to either amend, maintain or cease to maintain the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and Code paragraph 9.176) 

Transfer of EHC Plans

18. 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)
19. The new council may bring forward the arrangements for the review of the plan. The new council must tell the child’s parent or the young person, within six weeks of the date of transfer, when they will review the plan and whether they propose to make an EHC needs assessment. (Code paragraph 9.160)

Appeal rights

20. There is a right of appeal to the Tribunal against certain decisions a council makes, including to cease to maintain an EHC Plan.
21. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
22. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

What happened

23. This is a summary of key events. It is not a detailed chronology of everything that happened.
24. Mr X was in further education and had an EHC Plan. It had been maintained by a different council for several years. I refer to this as the old Council. The old Council issued his most recent EHC Plan on 26 March 2024.
25. Mr X moved into Kent County Council’s area. I refer to Kent County Council as the Council.
26. On 19 April 2024 the old Council notified the Council Mr X had moved into its area. It transferred his EHC Plan and provided the relevant documents. It said the full responsibility for the EHC Plan was transferred to the Council. It informed the Council it had previously decided to cease the EHC Plan later that year on 31 July. The old Council also notified Mrs W of the transfer.
27. In May, Mrs W contacted the Council because she had not heard from it. She asked if it had taken over her son’s EHC Plan, whether it would cease in July, or if it would review it.
28. The Council replied to Mrs W a few days later in May. It confirmed it had received the transfer. It said a caseworker would contact Mrs W with next steps within 10 working days. It did not contact her as promised.
29. Within six weeks of the transfer, by 31 May, the Council should have notified Mrs W when it planned to review the EHC Plan. The Council did not provide Mrs W the required notification.
30. On 3 September Mrs W made a stage one complaint to the Council. She complained it had not contacted her about Mr X’s EHC Plan.
31. The Council responded to Mrs W’s complaint on 5 September. It said it would not treat her complaint as a formal complaint because it was about routine management of Mr X’s case. It said someone would contact her in the next few days. It did not contact her as promised.
32. On 21 October Mrs W complained to the Council again. She asked the Council to treat her concerns as an urgent formal complaint. The Council decided to treat her complaint of 3 September as a stage one complaint.
33. On 11 January 2025 Mrs W chased the Council because she had not received a response.
34. On 18 February the Council responded to Mrs W’s stage one complaint. It informed her it was unable to adopt Mr X’s EHC Plan because it had already ceased. It advised her to request a new EHC needs assessment for Mr X.
35. Mrs W contacted the Council on 19 February. She made a stage two complaint. She complained it had failed to inform her of its decision to cease the plan in July the previous year. The Council replied to her the following day. It said the matter was being progressed as a complaint. It said someone would contact her within 10 working days. It did not contact her as promised.
36. Mrs W complained to the Ombudsman in April. The Ombudsman contacted the Council about its outstanding stage two complaint response.
37. The Council responded to Mrs W’s stage two complaint on 24 October. It acknowledged it failed to inform her it had ceased the EHC Plan. It said she should have appealed the old Council’s decision before the EHC Plan was transferred in February the previous year.
38. The Council subsequently reviewed its actions and decisions and provided a response to the Ombudsman in March 2026. It accepted it was at fault for the way it handled the transfer of the EHC Plan, was under the misunderstanding there should be a request for a new EHC needs assessment, incorrectly advised Mrs W to appeal the cease decision with the old Council, and undertook to hold an urgent annual review of the EHC Plan.

Analysis

39. I address each part of Mrs W’s complaint in order below.

a) The Council failed to follow its legal duties when Mr X’s EHC Plan was transferred to it from the old Council.

40. Within six weeks of the transfer of the EHC Plan, the Council had a duty to tell Mrs W that the EHC Plan had been transferred, when it planned to review the EHC Plan and whether it proposed to make an EHC needs assessment. It failed to do so. This was fault.
41. The Council had a duty to review the EHC Plan no later than November 2024. That was 12 months after it had been previously reviewed. It failed to do so. This was fault.
42. The law says the transferred EHC Plan was to be treated as if it had been made by the new Council and must be maintained by the new Council from the date of the transfer. This means the Council had a duty to secure the special educational provision in Section F of the Plan. It has accepted it failed to do so. This was fault.
43. I acknowledge the old Council had decided, before transfer, to cease the plan on 31 July 2024. However, I have decided that did not cause or mitigate the Council’s faults. This is because the Council had an immediate duty to maintain the plan when it was transferred. It should have made and communicated its decisions within 6 weeks. Its faults therefore happened significantly before the old Council would have ceased the EHC Plan had it not been transferred.
44. There is no record the Council made any decisions regarding Mr X’s EHC Plan, including whether or not it intended to uphold the earlier decision to cease the EHC Plan on 31 July, until 1 November 2024. This was more than seven months after the plan was transferred. On this date there is a record the Council decided it would not adopt Mr X’s EHC Plan because the old Council had ceased it.
45. I find the Council at fault for saying it had decided it would not adopt Mr X’s EHC Plan at that point. This is because the Code says it had been immediately responsible for maintaining the EHC Plan since the transfer in February. I have seen nothing in the Code that allows a council to decide whether or not to adopt an EHC Plan that has been transferred to it.
46. I acknowledge the Council subsequently reviewed its actions and accepted fault regarding its handling of the transfer and maintenance of the EHC Plan.

b) The Council failed to respond to Mrs W’s request for mediation or a new EHC needs assessment.

47. On 21 October Mrs W wrote in her complaint that she had contacted mediation services. She wrote neither the old Council or Council responded to the mediation efforts.
48. The mediation service said it contacted the Council. However, I have decided there is not enough evidence to say, even on balance, that it did so. For this reason I do not find the Council at fault for not responding to her reference to mediation.
49. Mrs W also wrote in the same complaint that if the Council intended to proceed with the decision to cease the EHC Plan, she formally requested a thorough assessment of Mr X conducted by the Council.
50. The Council says it has no record of an EHC needs assessment request.
51. I have considered the wording in Mrs W’s complaint. I have decided it is not detailed enough to be understood as a request for a new EHC needs assessment. I have also referred to the Council’s website that explains the steps a person must take to request an EHC needs assessment. I have seen no evidence Mrs W took those steps. For these reasons I do not find the Council at fault for not treating Mrs W’s reference to an assessment as a request for an EHC needs assessment.

c) The Council failed to provide adequate responses to Mrs W’s regular requests for contact and formal complaints.

52. The Council did not promptly contact Mrs W after the EHC Plan was transferred. It first said a caseworker would contact Mrs W with next steps within 10 working days on 29 May 2024 after she chased it.
53. On the evidence I have seen it did not contact her again with substantive information until 5 September, more than four months later. In that contact, the Council told Mrs W it would not treat her complaint as a formal complaint. It said someone would contact her in the next few days.
54. The Council failed to contact Mrs W as promised. This caused her to complain again on 21 October. The Council treated that complaint as a stage one complaint. It responded on 18 February 2025.
55. Mrs W raised a stage two complaint on 19 February. The Council responded on 24 October following contact from the Ombudsman.
56. The Council’s complaint policy says it will provide a full response within 20 working days. The Council took 83 and 174 working days to respond to Mrs W’s stage one and stage two complaints respectively.
57. Based on the evidence above I find the Council took significantly longer than it should have done to respond to Mrs W’s requests for contact and complaints. This was fault.
58. I have considered the content of the Council’s complaint responses. At both stages the Council failed to identify it had not followed the Code when Mr X’s EHC Plan was transferred to it. I also find the complaint responses contained confusing and inaccurate information about its actions and the steps Mrs W should take. I find the complaint responses fell below an adequate standard for these reasons. This was fault.

Injustice and recommended actions

59. I find The Council’s faults caused injustice in the form of significant distress and uncertainty from poor handling of the transfer, delayed annual review and appeal rights, and from poor communication and complaint handling.
60. I also find the Council’s faults caused significant injustice to Mr X in the form of missed special educational provision from 19 April 2024. I find this injustice is ongoing.
61. I make the finding of missed special educational provision because I have seen no evidence the Council secured any of the provision in Section F of Mr X’s EHC Plan, and the Council stated it did not do so.
62. To make my finding on the duration of the missed educational provision I have considered the Council’s response to the Ombudsman of March 2026. It said it now needed to hold an urgent annual review of the EHC plan as it was when transferred. I also note the Council did not at any stage record a decision to cease the plan. Nor did it provide the relevant notification and support laid out in the Code that would have followed a decision to cease. I have also considered the absence of anything in the Code that allows a council to decide whether or not to adopt an EHC Plan that has been transferred to it, as noted in paragraph 45 above.
63. I have decided this evidence shows Mr X’s EHC Plan did not cease. The Council’s duty to secure the special educational provision in Section F for Mr X is therefore ongoing.
64. I have considered our guidance on remedies. It says where fault has resulted in a loss of special educational provision, we will usually recommend a remedy payment within a range per term to acknowledge the harm caused by that loss. I have taken account of the factors laid out in the guidance and Mrs W’s comments about the impact of the loss of provision on Mr X.
65. I have decided to recommend a payment of £1,000 per term for each of the six terms missed, the completion of an annual review, and a written apology, to remedy the injustice.
66. This is intended to remedy the total injustice caused to Mr X from missing provision, as well as the total and consequential injustice also caused to Mrs W due to the missed provision and the Council’s poor communication and complaint handling.
67. I have also decided to recommend the Council improve its service by providing guidance to staff. This is to prevent others suffering similar injustice.

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Action

68. Within four weeks the Council will:
1. Apologise to Mr X and Mrs W for the injustice. 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.
2. Make a symbolic payment of £6,000 to Mrs W to acknowledge the missed educational provision and total consequential injustice. I recommend Mrs W use the money for Mr X’s educational benefit.
3. Start an annual review of Mr X’s EHC Plan.
69. Within 12 weeks the Council will:
1. Issue written guidance to all relevant caseworkers to ensure they understand the Council’s duties, as laid out in the SEND Code of Practice, when an EHC Plan is transferred to it from another council.
70. The Council should provide us with evidence it has complied with the above actions.

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Decision

71. I find fault in the way the Council handled the transfer of the EHC Plan, and communicated, causing injustice. The Council has agreed actions to remedy the injustice. I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman