The Ombudsman's final decision
Summary: The Council failed to process and deal with the transfer of an Education, Health and Care (EHC) Plan from another council area in line with law and statutory guidance for Mrs X’s son, Mr Z. It failed to hold an annual review before amending Mr Z’s Plan and failed to put in place any education between September 2025 and March 2026. The Council agreed to apologise to Mr Z and Mrs X and make a payment to acknowledge the injustice caused. It also agreed to carry out an organisational action plan to ensure it processes transferred EHC Plans in line with law and guidance in the future.
The complaint
Mrs X complained about how the Council handled her son, Mr Z’s Education, Health and Care (EHC) Plan after it accepted responsibility for it from another council area (Council B) in September 2025. Mrs X said the Council issued a new draft Plan without holding an annual review and then delayed issuing a final Plan until March 2026. She said Mr Z received no education during this period.
Mrs X also complained about the content of the final EHC Plan and how the Council has handled Mr Z’s education after March 2026.
Mrs X said the matter has caused distress and uncertainty and impacted on Mr Z’s ability to cope at their named placement.
The Ombudsman’s role and powers
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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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 statement.
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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated I have investigated how the Council handled Mr Z’s EHC Plan upon transfer from Council B after accepting it in September 2025 and how it provided education for Y up to March 2026.
Mrs X continued to raise concerns to us about the content of Mr Z’s EHC Plan issued in March 2026 and about how it has handled Y’s education after that point.
I have not investigated any matters after March 2026 because at this point the Council issued Y’s final Plan naming College 2. Any concerns Mrs X had with the content of the EHC Plan at this point came with a right of appeal to the SEND tribunal. Due to the restrictions outlined in paragraphs 18-21 below I cannot look at those concerns.
Mrs X will need to make a new complaint to the Council in the first instance about any concerns she has about Mr Z’s education after March 2026, including how College A has provided Mr Z’s specialist provision outlined in the EHC Plan.
How I considered this complaint
I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
Relevant law and guidance EHC Plans 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.
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 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).
Annual reviews 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.
SEND tribunal There is a right of appeal to the SEND tribunal against the 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.
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).
This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
Transfer of EHC Plans between councils Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. Once the EHC Plan is transferred the new council has the same legal duties as if it had issued the plan itself.
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).
If it is no longer practicable for the child or young person to attend the school or college named in Section I of the EHC Plan then the new Council has a duty to arrange for them to attend another appropriate school as soon as the EHC Plan is transferred. The Council should then start the process of reviewing and amending the EHC Plan straight away. (SEND Code of Practice, 9.159) The new Council must tell the child’s parents or the young person within six weeks of the date of transfer when it will review the Plan or whether it proposes to carry out an EHC needs assessment. (SEND Code of Practice, 9.160).
What happened Mrs X has an adult son, Mr Z. Mr Z turned 18 during 2025. Mr Z has special educational needs and a disability which affects their movement and independence. Mr Z has had an EHC Plan for a number of years. Much of Mr Z’s specialist provision is around adult support in the college environment, teaching with a multi-sensory approach and developing his social and emotional skills and independence.
Prior to September 2025 Mr Z lived in Council B’s area with his father and attended an independent specialist college (College 1).
In August 2025 Council B contacted the Council and informed it that Mr Z was currently living with Mrs X in its area. It said Mr Z had not attended College 1 since March 2025. It said there was an ongoing court case about where Mr Z should live but it would shortly be transferring the EHC Plan to the Council to maintain given that is where Mr Z was currently living.
In September 2025 Council B told the Council it had transferred Mr Z’s EHC Plan and documentation. The Council confirmed to Mrs X that it had accepted Mr Z’s EHC Plan and would determine whether an annual review was required. It confirmed it was reviewing College 2 which had offered Mr Z a place and was Mrs X’s preferred choice of placement.
The Council told us it had difficulties accessing Mr Z’s EHC Plan after Council B had transferred it. The Council said the documents had access restrictions, and it did not resolve these until the end of October 2025.
The Council said upon reviewing Mr Z’s EHC Plan that it appeared historic and contained out of date information with the last annual review undertaken by Council B being from 2023.
In November 2025 the Council sent Mrs X a draft EHC Plan without holding an annual review or consulting with Mrs X. Upon receiving the draft Plan Mrs X told the Council it was not accurate and questioned why the Council had consulted a number of educational settings which she believed were not suitable.
Mrs X complained to us towards the end of 2025. She believed the Court had made an order for the Council to name College 2 in Mr Z’s EHC Plan. As it stood Mrs X said Mr Z has no educational placement to attend which was causing him to display distressing and challenging behaviour.
We asked the Council for further information. The Council confirmed it had not investigated Mrs X’s complaint through its own complaints procedure. It said it had accepted responsibility for Mr Z’s EHC Plan but no court order had been made directing it to name College 2. The Council said it was currently working on and reviewing Mr Z’s draft EHC Plan.
The Council issued Mr Z’s final EHC Plan in mid-March 2026 which named College 2 in Section I of the Plan with a start date in April 2026. Mr Z had remained without any educational placement until that date. Records show since April 2026 Mr Z has struggled to attend College 2 regularly and Mrs X continues to have concerns around his timetable and the content of the EHC Plan.
Mrs X remained unhappy and asked us to investigate.
The Council’s response to us The Council said on receipt of Mr Z’s EHC Plan there were gaps and no recent annual review therefore it decided to issue a draft EHC Plan with a full annual review arranged for July 2026. The Council said the ongoing court case would determine where Mr Z was to live and therefore who would maintain the EHC Plan going forward.
The Council told us that between July 2025 and April 2026 it had accepted 41 other EHC Plans from other councils. Of these 14 were reissued as draft plans and 21 are pending. The other 6 were ceased or had transferred out of its area again. The Council however confirmed it had not received any other complaints about these Plans.
My findings
Transfer of Mr Z’s EHC Plan The Council accepted Y’s EHC Plan from Council B in September 2025. The Council says it could not access the documentation until the end of October 2025 due to system/permission errors. However, those issues were for the Council to resolve at the time. Any delay in accessing the documentation does not change the transfer day which in line with the Code is date the Council B sent the Plan to the Council (so mid-September).
Following transfer of the EHC Plan the Council should have told Mrs X within six weeks of the date of transfer when it would review the Plan or whether it proposed to carry out an EHC needs assessment. There is no evidence it did so which is fault.
In line with the law and the Code upon receipt of Mr Z’s EHC Plan the Council had the same legal duty towards the EHC Plan as if it had issued the EHC Plan itself. The only way to change the transferred Plan was to either issue and amended version following an annual review or an EHC needs reassessment. The Council did neither and instead issued a new draft Plan during November 2025. All of this was procedurally incorrect and fault.
While procedurally incorrect the Council should have issued Mr Z’s amended final EHC Plan within a maximum of eight weeks of issuing the draft EHC Plan, so by mid-January 2026. It did not so until mid-March 2026 which was a further delay of eight weeks and fault causing distress and uncertainty.
The Council’s process in dealing with transferred EHC Plans is incorrect and not in line with the law or the Code. It has confirmed that of 41 transferred EHC Plans since July 2025 it issued new draft Plans in 14 cases without holding an annual review and 21 are still pending. I have made a service improvement recommendation below to address these issues.
Mr Z’s education In line with relevant law and the Code the Council had a legal duty to secure an education and special educational provision set out in section F of Mr Z’s EHC Plan from the date of transfer. It was not practicable for Mr Z to attend the placement named in the transferred Plan therefore the Council should have either arranged for them to attend another appropriate college or secured provision in another way. The Council did neither which was fault and meant Mr Z did not receive any education or the provision in his EHC Plan between September 2025 and March 2026. This also caused both Mr Z and Mrs X distress and uncertainty.
As outlined above if Mrs X has concerns about the final EHC Plan or the education Mr Z received after March 2026 she had the right to appeal to the SEND tribunal and make a new complaint to the Council.
Action
Within one month of the final decision the Council agreed to take the following action: Apologise to Mr Z and Mrs X and pay Mrs X a total of £2250 to acknowledge the impact on Mr Z’s education and the distress and uncertainty caused by the Council’s handling of Mr Z’s transferred EHC Plan and the failure to secure appropriate education for him between September 2025 and March 2026.
Within three months of the final decision the Council should develop an action plan to address how it processes transferred Education, Health and Care (EHC) Plans from other councils. The action Plan should include: A review of its current procedures to ensure it processes transferred EHC Plans in line with the law and statutory guidance. This includes Holding an annual review prior to issuing a new draft Plan.
Telling the child’s parents or the young person within six weeks of the date of transfer when it will review the Plan or whether it proposes to carry out an EHC needs assessment.
Ensuring education and the provision the EHC Plan is in place for the child or young person at the time of the transfer.
A review of all the 21 transferred EHC Plans the Council has accepted since July 2025 which are still pending to ensure it processes them in line with actions outlined above.
The Council actions included should be timebound and take no longer than six months to implement.
The Council should provide us with evidence it has complied with the above actions.
Decision I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice.
Investigator's decision on behalf of the Ombudsman