Summary: Mrs X complained about the way the Council dealt with Ms Y’s special educational needs provision in her Education, Health and Care Plan. We have found by the Council, causing injustice, by failing to: deliver the provision set out in Ms Y’s Education Health and Care Plan; complete the annual review process within the statutory timescales; and properly consider Ms Y’s circumstances before deciding to transfer her Plan to another Council. The Council has agreed to remedy this injustice by: apologising, making payments to acknowledge the impact of the missed provision and reflect the upset caused by the delays with the annual review process; and issue a final amended Plan without further delay.

The complaint

1. Mrs X complains, on her daughter, Ms Y’s behalf, the Council failed to:
1. provide Ms Y with the special educational needs (SEN) provision in her Education, Health and Care (EHC) Plan from February 2025; and
2. issue a final amended EHC Plan within the statutory timescale following the annual review meeting in August 2024. It also stopped the process by wrongly trying to transfer the Plan to another council.
2. Because of these failures, Ms Y has continued to miss out on the educational and SEN provision in her EHC Plan. Ms Y and Mrs X have been caused further upset and worry about the arrangements for Ms Y’s education.
3. Mrs X wants the Council to: pay financial redress for the provision Ms Y has missed and the upset caused; issue the final amended plan including the currently requested provision; and apologise for its failures.
4. Mrs X’s representative has assisted her with this complaint. For simplicity I have referred to contact with us or the Council by either Mrs X or her representative as being by Mrs X.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
6. 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)
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)
8. 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

9. I have not investigated any failure to deliver Ms Y’s SEN provision before February 2025. This was considered as part of Ms Y and Mrs X’s first complaint to us and our final decision issued in February 2025.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council, as well as relevant law, policy and guidance.
11. Ms Y, Mrs 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

What should have happened

Education Health and Care (EHC) Plan 

12. A child or young person with special educational needs may have an EHC Plan. This document sets out their needs and what arrangements should be made to meet them.
13. 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.
14. 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 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

Reviewing EHC Plans

16. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. A review meeting must take place. The process is only complete when the council issues its decision to 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 SEN Code paragraph 9.176) 
17. 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).
18. 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.

Transfer of EHC Plan between councils 

19. 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. (Section 15 Special Educational Needs and Disability Regulations 2014)  

What happened

20. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Background

21. The Council issued Ms Y’s final EHC Plan in June 2023, following an appeal to the Tribunal about the content of her previous EHC Plan. The SEN provision set out in section F of the June 2023 EHC Plan included:
1. Speech and Language Therapist devised communication programme and direct Speech and Language Therapy (SALT) sessions with a mentor of Ms Y’s choosing;
2. 3 weekly social communication sessions of 30 minutes;
3. Occupational Therapist (OT) devised sensory programme, delivered twice daily for about 10 minutes by OT trained 1:1 staff;
4. 1 weekly session with a Specialist Practitioner Educational Psychologist (EP);
5. an Education Other Than in School (EOTAS) package including:

• online A level study; and
• online Level 3 course study with appropriately experienced tutor support of 3 hours a week, increasing to 6 hours once Ms Y was able to engage to that level;

March 2024: Ms Y’s first complaint to us

22. Mrs X complained to us the Council had failed to provide most of the SEN provision in Ms Y’s June 2023 EHC Plan, including the psychotherapy and SALT support.

August 2024: Annual Review meeting

23. On 27 August 2024 the Council held the annual review meeting for Ms Y’s June 2023 EHC Plan.
24. In September 2024 Mrs X sent the Council their proposed amendments to the Plan and a personal budget request. She told the Council about a supported internship Ms Y was undertaking linked to her online Level 3 course.
25. The personal budget request was referred to the Council’s Panel who asked for more information about the internship.
26. In October 2024 Mrs X provided the Council with details of the placement (at a location outside of the local district, in Council A’s area). She confirmed Ms Y had completed nine weeks of work experience at the placement since April 2023 and had been offered a six-month internship starting in February 2025. This involved working at the placement during the week alongside her studies for the Level 3 course. Mrs X also asked when the amended EHC Plan would be issued.

December 2024: Ms Y’s further complaint to the Council

27. Mrs X complained to the Council about its continuing failure to deliver Ms Y’s SEN provision and its communication failures. She said:

• the Council had not delivered the SALT and EP provision;
• the tutors commissioned to deliver the tuition support had advised, in June 2024, they could not support Ms Y with the subjects she required or meet her SEN needs; and
• the Council had still not completed the August 2024 annual review or issued Ms Y’s amended final EHC Plan.

February 2025: our decision on Ms Y’s first complaint to us

28. We said we had investigated what had happened in the period following the conclusion of the Tribunal proceedings and the issue of the June 2023 EHC Plan.
29. We noted:

• the Council accepted, in December 2023. it had not delivered some of the provision agreed in Ms Y’s EHC Plan; and
• Mrs X had confirmed the provision was still not in place at the time of her March 2024 complaint to us.

30. The Council agreed to make a payment to Ms Y to recognise the impact on her of the missed provision from 2023 until February 2025, when we made our decision.

Annual review process

31. The annual review process, started in August 2024, had not been completed as at February 2025.
32. The Council contacted Ms Y’s placement for information about her internship and then referred the personal budget request back to its Panel. In March 2025 it asked for further information about course costs and tutor support, which Mrs X provided.

April 2025: Council’s final complaint response

33. In its stage one complaint response the Council had said it was attempting to commission the provision in Ms Y’s June 2023 EHC Plan. In its final response it said it was finding the provision difficult to fulfil because of its specificity.
34. It also said enquiries had been made, following the annual review meeting, and a proposed amended EHC Plan with attainable provision would be shared by 17 April. It accepted there had been a delay with this process.

April/May 2025: transfer of Ms Y’s EHC Plan to another authority

35. The Council spoke to Mrs X in April about Ms Y’s current studying and internship arrangements. Its note of the call says Mrs X told it:

• Ms Y had been volunteering at the placement since April 2023. She was working there as an intern from Monday to Friday;
• She had living accommodation at the placement during the week. She would either come home at weekends or stay with a relative who lived near the placement; and
• When the internship ended in July 2025, Ms Y would return home. Her current intention was to volunteer at the placement from Monday to Friday from September 2025 and stay with her relative when volunteering.

36. On 11 April the Council told Mrs X that, as Ms Y was living in Council A’s area, it would transfer her EHC Plan to that council.
37. Mrs X replied immediately that at no time had she said Ms Y was living in Council A’s area. Ms Y only stayed there when carrying out her work experience at the placement.
38. On 15 April the Council transferred Ms Y’s EHC Plan to Council A.
39. On 7 May Council A transferred the Plan back to the Council.

May 2025: Ms Y’s further complaint to us

40. Mrs X asked us to investigate her further complaint to the Council of December 2024 about its continuing failure to deliver all Ms Y’s SEN provision and delay completing the annual review process.

Current position

41. The Council has told us it has not delivered the provision in Ms Y’s EHC Plan since our decision in February 2025 on the previous complaint.
42. Mrs X says she is currently funding Ms Y’s Level 3 online course and 3 hours of 1:1 tutoring a week.
43. The Council has not yet issued an amended EHC Plan nor completed the annual review process started in August 2024.

My decision – was there fault by the Council causing injustice?

Failure to deliver Ms Y’s SEN provision

44. The Council has confirmed its continued failure, from the date of our previous decision in February 2025, to deliver the SEN provision in section F of Ms Y’s EHC Plan in accordance with its statutory duty. This failure is fault.
45. Because of this Ms Y has continued to miss out on the SEN provision she should have received from February 2025 to the date of this decision.
46. Where 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 harm caused by that loss.  This payment is intended to remedy injustice caused to the child or young person from missing provision, as well as the normal range of consequential injustice also caused to the family due to this fault.
47. The amount is based on the impact on the child/young person and takes account of factors such as the severity of their SEN as set out in their EHC Plan and whether the period was significant in their school career. We also consider the impact of missing provision such as OT and SALT.
48. Here I consider the payment should be towards the middle of the range. I have taken into account that no part of the EOTAS package, OT, SALT or EP support in Ms Y’s EHC Plan has been delivered, and that Mrs X has funded some of Ms Y’s missing provision.

Failure to complete the annual review process

49. The annual review meeting of Ms Y’s current EHC Plan (issued in June 2023) was held on 27 August 2024. This means the Council should have issued its decision to maintain, amend or cease the Plan by 24 September 2024.
50. The Council did not issue a formal decision notice but indicated it proposed to amend Ms Y’s Plan. The amended final plan should have been issued by 19 November 2024.
51. The Council has still not issued a decision or an amended EHC Plan, despite saying in its final complaint response it would do this in April 2025.
52. This failure to complete the annual review process within the statutory timescale is fault.
53. The Council has said it is unable to deliver the current provision - although I note the provision was agreed by the Council during the Tribunal proceedings – and that an amended plan is needed with attainable provision.
54. Yet it has failed to produce this amended plan, and in the meantime Ms Y is still not receiving the current provision and has no appeal rights. The ongoing delay has caused Ms Y and Mrs X continuing upset, frustration and uncertainty about the outcome of the review process.

Transfer of plan to Council A

55. Mrs X told the Council about Ms Y’s work experience and internship at the placement in September/October 2024. The Council knew this placement was in Council A’s area. But it made no enquiries about Ms Y’s living arrangements and whether she had moved to Council A’s area at that stage.
56. I don’t consider it was reasonable for the Council to decide, simply on the basis of its conversation with Mrs X in April 2025 and without making further enquiries, Ms Y was no longer living at the family home with Mrs X and had moved to Council A’s area. There is no evidence it properly considered Ms Y’s circumstances, including Mrs X’s confirmation Ms Y was still living at their home address, before transferring Ms Y’s EHC Plan to Council A.
57. I consider the Council’s failure to properly investigate and consider Ms Y’s circumstances deciding to transfer the plan was fault. Had it done so, in my view it is more likely it would not have gone ahead with the transfer.
58. The transfer further delayed the annual review process and caused Ms Y and her family avoidable upset, frustration and uncertainty about the position, at a time when the proposed amended EHC Plan was already significantly overdue.

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Action

59. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Ms Y and Mrs X for its failure to: deliver the SEN provision set out in Ms Y’s EHC Plan; complete the annual review process within the statutory timescales; properly consider Ms Y’s circumstances before deciding to transfer her EHC Plan to another Council, and for the upset these failures caused. This apology should be in line with our guidance on Making an effective apology:
2. pay Ms Y £4,500 (based on 3 terms from February 2025 to the end of January 2026) to acknowledge the harm caused by the loss of her educational provision. This payment is intended to remedy injustice caused to Ms Y from missing provision, as well as the normal range of consequential injustice caused to the family due to this fault, including any costs incurred by Mrs X in funding some of the missed provision.
3. pay Mrs X £150 to reflect the upset, frustration and uncertainty caused by its failure to complete the annual review process within the statutory timescale and properly consider Ms Y’s circumstances before transferring her plan. This is a symbolic amount based on our guidance on remedies; and
4. complete the annual review process by either issuing Ms Y’s final amended EHC Plan without further delay, or its decision to maintain or cease the Plan, with appeal rights explained.
60. The Council should provide us with evidence it has complied with the above actions.

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Decision

61. I find fault causing injustice. The Council has agreed to take the above action to remedy this injustice.

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Investigator's decision on behalf of the Ombudsman