Summary: The Council failed to investigate and provide oversight when Mrs X complained that her child, Y’s specialist provision in their Education, Health and Care (EHC) Plan was not being delivered. The Council also delayed consulting with post-16 placements and delayed issuing Y’s post-16 EHC Plan by four months. The Council agreed to apologise and make a symbolic payment to recognise the injustice this caused. It will also take action to prevent similar fault occurring in the future.

The complaint

1. Mrs X complained the Council failed to ensure her child, Y received a suitable education and the specialist provision in their Education, Health and Care (EHC) Plan during the 2024/25 academic year. She also complained the Council delayed issuing Y’s post 16 EHC Plan.
2. Mrs X said Y’s education and social development suffered during an important GCSE year which has caused distress and uncertainty.

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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. 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)
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 Mrs X and the Council as well as relevant law, policy and guidance.
8. 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

Relevant law and guidance

EHC Plans

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.
10. 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).
11. 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

Annual reviews

12. 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.
13. 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). 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.
14. The council must review and amend an EHC Plan in enough time before a child or young person moves between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution.
15. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.

What happened

Background

16. Mrs X has a child, Y who in 2024 was of secondary school age. Y was due to transition to post 16 education from September 2025. Y has special educational needs and an EHC Plan. The EHC Plan in place in 2024 named a mainstream school (School Z) however Y has attended an alternative provision since 2023 which is part of School Z.
17. The Council had issued Y’s EHC Plan in in September 2023. Mrs X appealed to the SEND tribunal in December 2023 specifically about the absence of advice from Y’s therapist which meant a lack of therapy provision in the Plan.
18. Mrs X had previously complained to the Council in June 2024 about Y’s alternative provision School Z not providing Y with a full time education or the provision in their EHC Plan. The Council issued Mrs X with a final complaint response in August 2024 upholding her complaint and accepting Y had only received education on a part time basis for a period of 22 months up to July 2024. Mrs X accepted a payment from the Council in recognition of the injustice caused to Y.

September 2024 onwards

19. Y remained on roll at School Z at the start of the 2024/25 academic year. Records show a meeting took place at School Z in October 2024 to discuss Y which Y’s case officer and Mrs X attended. Email correspondence notes Y was being supported well at School Z and there were currently no concerns. The notes show the Council planned to update Y’s EHC Plan to name a post-16 college from September 2025.
20. The Council issued an amended EHC Plan for Y in December 2024 following an order from the SEND tribunal. This Plan continued to name School Z.
21. There is no other record of correspondence or contact from Mrs X with the Council until she submitted a new complaint in late April 2025. Mrs X said there had been a continued lack of ensuring Y’s EHC Plan was being followed at School Z, a lack of support from the post-16 transition team and a lack of support around Y’s GCSE exams.
22. The Council responded to Mrs X in May 2025. It said Y’s case officer consulted with College A in December 2024 and it returned a positive response in February 2025. The Council acknowledged it should have issued an amended Plan by the end of March 2025 but needed to meet with College A first to discuss Y’s needs. The Council accepted delays in consulting with College A and that it could have done more around supporting Mrs X and Y around post-16 plans.
23. Mrs X escalated her complaint to stage two of the complaints process in early June 2025. Mrs X said again that there was a continued lack of ensuring Y’s EHC Plan was being followed by School Z which followed on from her previous upheld complaint. Mrs X further complained about the lack of post-16 support. Mrs X said she had to take on the additional role of liaising with Y’s college and ensuring they were entered into the correct exams.
24. The Council responded in July 2025. It said it had already addressed and apologised for the delay in issuing Y’s EHC Plan and for not providing the right level of support for Y’s post-16 transition. It said exam arrangements would usually be for the school to arrange and the Council would not normally have a role in this.
25. Records show Y left School Z in mid-June 2025. The Council issued Y’s amended EHC Plan in July 2025 naming College A as their post-16 placement from September 2025.
26. Mrs X remained unhappy and complained to us.

The Council’s response to us

27. The Council said it was not made aware of concerns around Y’s attendance or delivery of the EHC Plan during the 2024/25 academic year. It said there was no record of School Z or Mrs X advising it of reduced timetables or issues around EHC Plan provision until Mrs X complained in April 2025. The Council said Y’s attendance at School Z during the 2024/25 academic year was at 70% with the majority of absences being because of lateness or medical appointments.

My findings

EHC Plan provision

28. Following Mrs X’s previous upheld complaint Y remained at School Z at the beginning of the 2024/25 academic year. Evidence shows Mrs X and the Council attended a meeting at School Z in October 2024 and no concerns were raised about Y’s attendance, education or EHC Plan provision. There is no evidence the Council received any further communication or report of concerns from either Mrs X or School Z until Mrs X’s stage one complaint in April 2025. Given no concerns were raised at the October meeting and no other complaints were raised there was no reason for the Council to investigate or take action around Y’s education. So, there was no fault between September 2024 and April 2025.
29. Mrs X’s complaint in April 2025 was vague however it did raise concerns that School Z was not delivering Y’s EHC Plan. Given the past upheld complaint about similar issues the Council should have provided some oversight and investigation into this at this point. Not doing so was fault and caused Mrs X frustration and uncertainty. However, given Y left school in June it is unlikely Council intervention would have had any impact given the short timeframe.
30. Part of Mrs X’s complaint was about a lack of support for Y’s GCSE exams. GCSE exams and any adjustments required is usually for schools to administer and there is no evidence showing the Council was required to have a role in this for Y. Therefore, there is no fault, and it would have been for Mrs X to raise concerns about Y’s GCSE exam arrangements with School Z.

Post-16 transition

31. The Council has accepted a delay in issuing Y’s post-16 EHC Plan and a delay in consulting with College A. It has also accepted poor communication around the matter. The Council should have carried out a post-16 annual review and issued Y’s post-16 EHC Plan by 31 March 2025. There is no evidence of an annual review meeting (the Council appears to have used the conclusion of tribunal proceedings at the end of 2024 instead) and the Council issued Y’s amended Plan four months late which caused distress and uncertainty.

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Action

32. Within one month of the final decision the Council agreed to:
1. Apologise to Mrs X and pay her £300 to acknowledge the distress and uncertainty caused by the Council’s failure to provide oversight and investigation into Y’s EHC Plan provision and the delay in issuing Y’s post-16 amended EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Complete an action plan to ensure the Council has sufficient procedures in place for the following:
1. To ensure it provides oversight and investigation into complaints or concerns raised that provision in an Education, Health and Care (EHC) Plan is not in place at any time.
2. To ensure annual reviews are held for all children with Education, Health and Care (EHC) Plans approaching post-16 education to ensure timely consultations with post 16 placements. The Council should hold the reviews to ensure amended Plans are issued by 31 March in the year of transition.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman