Summary: Miss Y complained about how the Council handled the transfer of her sons Education, Health and Care Plan when he moved into the area. She said the Council failed to provide the tuition requested, misled her and Mr X about his eligibility for a functional skills qualification, and failed to engage in mediation. We find no fault in the Council’s actions.

The complaint

1. Miss Y complained about how the Council handled the transfer of her son, Mr Y’s Education, Health and Care (EHC) Plan when he moved into the area. Specifically, she says the Council:

1. failed to provide Mr X the one-to-one tuition requested;
2. misled both her and Mr X into believing he was eligible for a functional skills qualification; and
3. failed to engage in mediation.

2. She says this has meant Mr X has been left without necessary support, meaning he has been unable to sit an exam.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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(1), as amended)

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What I have and have not investigated

5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision.  
6. Miss X did not appeal against the July 2024 EHC Plan. Her requests for one-to-one tuition were separate from the special educational provision in the EHC Plan, and she said Mr X always intended to enrol at college. As these matters were not about the Plan itself, I have investigated part (a) of the complaint up to January 2025, when the Council decided to maintain the Plan. Miss X has since appealed to the SEND Tribunal about Mr X’s special educational needs and provision.
7. I have also investigated parts (b) and (c) because they took place before the right of appeal arose or can be considered separately from it.

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How I considered this complaint

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

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. 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. 
11. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.

12. 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)  

Reviewing EHC Plans

13. 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) 
14. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

Transfer of EHC Plan between Councils

15. 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)  

Mediation

16. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation.

Appeal rights

17. There is a right of appeal to the Tribunal against a council’s:

• 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
• decision not to amend an EHC Plan following a review or reassessment.

What happened

18. Mr X previously lived in another Council area and has special educational needs.
19. In July 2024, the previous council issued a final amended EHC Plan for Mr X, naming a type of placement in Section I.
20. Later that month, Mr X, then aged 18, moved into the Council’s area. The previous council formally notified the Council of the move.
21. In August, the Council contacted Mr X about adopting his EHC Plan. Mr X said he wished to attend College A and intended to enrol that day. The Council sent the college a consultation and a copy of his EHC Plan.
22. In September, Miss Y asked the Council to arrange one-to-one tuition to help Mr X re-sit an exam. Following this, a support organisation applied for one-to-one tuition, but Mr X did not give consent, so this was not progressed.
23. Later that month, College A confirmed it could meet Mr Y’s needs and offered him a place, but Mr X did not enrol. A further opportunity to enrol was arranged but not taken up, despite support and encouragement from various agencies. Mr X later said he did not wish to attend college.
24. In October, the Council held a meeting with professionals supporting Mr X to discuss his engagement, career goals and alternative options. Following this, the Council referred him for a one-to-one mentoring programme to support access to tuition, work experience and employment. Mr X did not take up this opportunity.
25. The Council continued to work with other agencies to identify courses, training and funding options, but Mr X did not engage with the support offered.
26. In November, Miss Y again requested one-to-one tuition. The Council explained the support already offered to help Mr X access education and shared further options, including functional skills courses that Mr X could apply for, but he did not take these up.
27. In December, the Council held Mr X’s annual review meeting, during this, the Council agreed to consider one-to-one tuition. The Council supported him to apply for an employment programme, but he did not complete the application.
28. In January 2025, the Council decided to maintain Mr X’s EHC Plan and later issued a final amended EHC Plan. It confirmed that a mainstream further education setting remained appropriate and said it would consult providers once Mr X expressed an interest. The Council did not agree to fund one-to-one tuition as suitable education remained available and accessible, but Mr X had chosen not to engage.
29. Later that month, Miss Y complained that the Council had failed to provide the special educational provision in Mr X’s EHC Plan and again asked for one-to-one tuition. Around the same time, Mr X applied for an online functional skills course due to start in April.
30. Miss Y requested mediation, which was arranged for February but cancelled due to unforeseen circumstances.
31. In February, the Council responded to the complaint. It said significant efforts had been made to engage Mr X in education and training, but he had not participated. It explained that although his EHC Plan named a type of placement, Mr X had not enrolled, and several other offers of support had not been taken up.
32. Dissatisfied with the response, Miss X escalated her complaint, and said it had failed to arrange mediation.
33. In March, Miss X appealed sections B and F of the EHC Plan to the Tribunal.
34. In its final complaint response, the Council explained that multiple professionals had offered support, including college placements, mentoring, apprenticeships and work experience, but Mr X had not engaged. It noted that, as an adult, participation in education was voluntary. It acknowledged the cancelled mediation and said it was arranging a new date.
35. In April 2025, mediation took place. Miss Y learnt that Mr Y would need to be referred via an education programme to be eligible for a functional skills course due to his age. She then brought her complaint to the Ombudsman.
36. In response to my enquiries, the Council said it had explained to Mr X during a meeting that, because of his age, he would need to enrol through an education programme to be eligible for a functional skills qualification. The Council said It had supported him to apply but he did not complete the enrolment.

My findings

One-to-one tuition

37. Mr X’s EHC Plan names a type of placement. The Council initially supported Mr X’s wish to attend college A, but he later decided he did not want to attend.
38. Following Miss Y’s request for one-to-one tuition, a support organisation attempted to arrange this, but the referral could not proceed because Mr X did not give consent. The Council then explored alternative education, training, and employment options, including online courses and mentoring programmes. Mr X chose not to engage with any of these opportunities.
39. During the annual review of the EHC Plan, the Council again considered Miss Y’s request for one-to-one tuition but decided not to provide this, as suitable education remained available and accessible to Mr X. The Council explained that it could not compel him to participate.
40. The evidence shows the Council made sustained efforts to help Mr X access education and provision consistent with his EHC Plan. The reason he did not receive tuition or other provision was because he chose not to participate. I therefore find no fault in the Council’s actions or decision making.

Functional skills

41. There is no written record of the Council specifically explaining to Mr X or Miss Y that, because of his age, he could only access a functional skills qualification through enrolment with an education provider. However, the evidence shows the Council supported Mr X to apply for the qualification through an appropriate education route, for which he remained eligible.
42. I am satisfied that Mr X and Miss Y were not misled about Mr X’s eligibility for functional skills, and the Council took reasonable steps to assist him. I find no fault in this part of the complaint.

Mediation

43. The Council arranged mediation in February 2025, but it was cancelled due to unforeseen circumstances. The Council acknowledged this and worked with Miss Y to rearrange the session, which took place in April 2025.
44. Although there was a short delay, the Council took appropriate steps to ensure mediation went ahead. I find no fault in the Council’s actions.

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Decision

45. I find no fault.

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Investigator's decision on behalf of the Ombudsman