Ombudsman recommends council issue guidance to caseworkers on duties when EHC Plans transferred

To remedy the injustice caused, the council was recommended to pay £6,000 to the family involved.

It was also urged to issue written guidance to caseworkers “to ensure they understand the council’s duties, as laid out in the SEND Code of Practice, when an EHC Plan is transferred to it from another council”.

The woman behind the complaint, Mrs W, complained on behalf of her son, Mr X, that the council failed to follow its legal duties when his Education, Health and Care Plan was transferred to it, did not respond to requests for mediation and a new needs assessment, and gave inadequate responses to her requests for contact and complaints.

Mr X was in further education and had an EHC Plan. It had been maintained by a different council (‘the old council’) for several years. The old council issued his most recent EHC Plan on 26 March 2024.

Mr X moved into Kent County Council’s area (referred to as the Ombudsman as ‘the council’).

On 19 April 2024, the old council notified the council that Mr X had moved into its area. It transferred his EHC Plan and provided the relevant documents. It said the full responsibility for the EHC Plan was transferred to Kent.

It informed the council it had previously decided to cease the EHC Plan later that year on 31 July. The old council also notified Mrs W of the transfer.

In May, Mrs W contacted the council because she had not heard from it. She asked if it had taken over her son’s EHC Plan, whether it would cease in July, or if it would review it.

The council replied to Mrs W a few days later in May. It confirmed it had received the transfer. It said a caseworker would contact Mrs W with next steps within 10 working days. However, it did not contact her as promised.

The Ombudsman noted: “Within six weeks of the transfer, by 31 May, the council should have notified Mrs W when it planned to review the EHC Plan. The council did not provide Mrs W the required notification.”

On 3 September, Mrs W made a stage one complaint to the council. She complained it had not contacted her about Mr X’s EHC Plan.

The council responded to Mrs W’s complaint on 5 September. It said it would not treat her complaint as a formal complaint because it was about routine management of Mr X’s case.

On 21 October, Mrs W complained to the council again. She asked the council to treat her concerns as an urgent formal complaint. The council decided to treat her complaint of 3 September as a stage one complaint.

On 18 February, the council responded to Mrs W’s stage one complaint. It informed her it was unable to adopt Mr X’s EHC Plan because it had already ceased. It advised her to request a new EHC needs assessment for Mr X.

Mrs W contacted the council on 19 February. She made a stage two complaint. She complained it had failed to inform her of its decision to cease the plan in July the previous year.

Analysing the complaint, the Ombudsman found the council failed to follow its legal duties when Mr X’s EHC Plan was transferred to it from the old council.

The Ombudsman said: “The law says the transferred EHC Plan was to be treated as if it had been made by the new council and must be maintained by the new council from the date of the transfer. This means the council had a duty to secure the special educational provision in Section F of the Plan. It has accepted it failed to do so. This was fault.

“I acknowledge the old council had decided, before transfer, to cease the plan on 31 July 2024. However, I have decided that did not cause or mitigate the council’s faults. This is because the council had an immediate duty to maintain the plan when it was transferred. It should have made and communicated its decisions within 6 weeks. Its faults therefore happened significantly before the old council would have ceased the EHC Plan had it not been transferred.”

The Ombudsman concluded the council also failed to:

• respond to Mrs W’s request for mediation or a new EHC needs assessment.
• provide adequate responses to Mrs W’s regular requests for contact and formal complaints.

The Ombudsman found this caused “significant injustice of distress, uncertainty, and missed educational provision”.

To remedy the injustice caused, the council was recommended to:

• Apologise to Mr X and Mrs W for the injustice.
• Make a symbolic payment of £6,000 to Mrs W to acknowledge the missed educational provision and total consequential injustice.
• Start an annual review of Mr X’s EHC Plan.
• Issue written guidance to all relevant caseworkers to ensure they understand the Council’s duties, as laid out in the SEND Code of Practice, when an EHC Plan is transferred to it from another council.

A Kent County Council (KCC) spokesperson said: "KCC does not comment on individual cases. However, where the Ombudsman upholds a complaint, we carefully consider their findings and will implement their recommendations in full.

"We take all complaints seriously and use them as an opportunity to learn and improve our services. Learning is shared across the Council to help strengthen practice and ensure we provide the best possible support to residents."

Lottie Winson