Council delayed accepting EHCP when it was transferred from another council area, Ombudsman finds

The case concerned Mr G, a young adult who lives with his mother, Ms X, and siblings.

Mr G has an acquired brain injury that affects the way he thinks, communicates and manages emotions. He had an EHC Plan that was written by a different council, ‘council 2’, in 2016.

Mr G’s plan set out the special educational provision he required, which included:

• a language programme devised to develop his expressive and receptive language skills and address his communication within a social context
• support in class in preparation for mock GCSE exams
• remedial teaching to support gaps in numeracy knowledge
• support with organisation to ensure Mr G had the correct equipment and attended on time
• a programme to develop handwriting.

Mr G moved to the London Borough of Bromley (the council) in 2017. Council 2 did not inform the council of Mr G’s move at the time.

Council 2 informed the council that Mr G had an EHC Plan in July 2022. By now, Mr G was 21 years old.

The council contacted Ms X in August 2022 about Mr G’s EHC Plan. The council said Ms X requested a reassessment of Mr G’s EHC Plan which it considered in February 2023.

The council said it decided it would be better for Mr G to access a suitable course and then decide if an EHC Plan was still required.

Ms X contacted the council at the beginning of December 2023 and told it Mr G wanted to take legal action as the council had failed to meet the needs set out in his EHC Plan. It said it did not know Mr G was living in its area and had an EHC Plan until July 2022.

The council acknowledged Mr G had started a college course and a training course but was unable to continue the courses without support, and understood Mr G wanted to learn a trade such as electrics, plumbing or construction.

A final EHC plan was issued by the council for Mr G in February 2024. The plan did not specify the name or type of provision Mr G should attend.

The Ombudsman noted: “There is no evidence the council sent the final amended EHC Plan to Mr G or Ms X or provided the associated appeal rights to the SEND Tribunal.”

At the end of May 2024, the council told Mr G that he was not engaging in any options it suggested so it was considering ceasing his EHC Plan. Mr G told the council he had applied to a college and asked for support on getting on the course. The council sent a consultation to the college for the trade course.

Ms X asked for a review of Mr G’s EHC Plan in early June. She said important information about Mr G’s health and needs had been removed from the draft plan.

The council said it would not hold a review as there had been no significant changes since the previous review.

Eventually, Ms X complained to the Ombudsman that the council:

• delayed accepting her son’s Education, Health and Care (EHC) Plan when it was transferred from another Council’s area in July 2022;
• failed to review and maintain the EHC Plan;
• failed to provide any educational provision in the plan.

She said this caused Mr G to miss two years of special educational provision which affected his mental health and wellbeing.

Analysing the case, the Ombudsman said: “The council was aware in July 2022 that Mr G was living in its area, and had an EHC Plan. In line with the Code it should have ensured the provision was in place within 15 days or ensured it placed Mr G in an appropriate setting until the Plan was formally amended.

“It should then have reviewed the Plan within three months, so by October 2022, and issued the amended EHC Plan within a further eight weeks, by December 2022. The council did not secure the provision or find an appropriate setting for Mr G, did not complete a review until December 2023, after Ms X had complained, and did not issue the amended EHC Plan until February 2024. That was fault and meant Mr G did not have an EHC Plan that properly identified his needs for 14 months.”

The Ombudsman noted that Ms X asked the council to complete a reassessment for Mr G in September 2022. At that point, Mr G’s Plan had not been reviewed for four years and he had been out of education and training for the same amount of time.

Considering Mrs X’s complaint, the Ombudsman found the council should have told Ms X and Mr G of its decision within 15 days and provided their appeal rights to the SEND Tribunal if they disagreed.

Looking at the issue of provision, the Ombudsman said: “Although Mr G was beyond the age of compulsory education, the council still had a duty to make sure Mr G received the special educational provision set out in his EHC Plan. Mr G’s Plan should have included a focus on preparing for adulthood […], either through qualifications or appropriate work experience or suitable activities.”

The Ombudsman concluded that the council did not secure the provision either in Mr G’s legacy EHC Plan, or the amended final EHC Plan between July 2022 and July 2024, which was fault.

To remedy the injustice caused, the Ombudsman recommended the council:

• write to Mr G and apologise for the specialist educational provision he missed, and the avoidable frustration and missed appeal rights he experienced as a result of the council’s faults;
• pay Mr G £7,200 for the two years between July 2022 and July 2024 he missed the specialist provision in his EHC Plan.
• pay Mr G a further symbolic amount of £500 to recognise the avoidable frustration and missed appeal rights he was caused by the council’s delay in completing an initial transfer review and failure to provide its decisions, final EHC Plan and appeal rights;
• complete a review of Mr G’s EHC Plan and issue its decision with associated appeal rights to Mr G and Ms X; and
• write to Ms X and apologise for the avoidable frustration she was caused by the council’s delay in completing an initial transfer review, failure to include her in important correspondence, and failure to provide its decisions, final EHC Plan and appeal rights. The council will pay Ms X a symbolic amount of £500 to recognise the same.

A Bromley Council spokesperson said: “The Council responded to the Ombudsman and will be implementing all the recommended actions. Our priority remains ensuring that every child or young person who has SEND receives the best possible support and education. However, like many councils, we face significant pressures as demand for SEND services continues to rise while resources, both within the Council and from partner agencies, remain limited. This is a challenge shared nationally, as reflected in the Ombudsman’s own reports and data.”

Lottie Winson