Summary: X complained about how the Council supported her daughter’s special educational needs. There was fault in how the Council managed the Education Health and Care plan process, considered whether it needed to arrange alternative education and responded to X’s complaint. The Council agreed to apologise, pay a financial remedy and review its procedures.

The complaint

1. X complained about the support the Council provided for her daughter, Y’s, special educational needs from 2020. She said the Council:
1. failed to properly assess Y’s needs, including carrying out important assessments;
2. took too long to make an Education Health and Care (EHC) plan for Y;
3. produced a plan which did not meet Y’s needs and named an unsuitable school;
4. did not tell her she could ask for a personal budget or direct payments for Y;
5. did not review Y’s EHC plan within a year of making it;
6. failed to provide alternative education when Y could not attend school due to health problems;
7. communicated poorly with both her and Y’s school;
8. failed to provide the support named in Y’s EHC plan both during and after X appealed to the tribunal;
9. caused delays during the tribunal process;
10. continues to not pay her the agreed personal budget; and
11. poorly handled her complaints.
2. As a result, she said that Y missed over a year’s worth of education at an important time during her school life, her health became worse and was caused significant avoidable distress. X said that she and her husband were also caused significant distress, inconvenience and frustration, and had to arrange and pay for alternative education for Y themselves.
3. X wanted the Council to apologise, compensate her for the distress and costs it caused and improve its processes.

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What I have and have not investigated

4. I have investigated all parts of X’s complaint apart from parts c) and i). The final section of this statement gives my reasons for not investigating these parts of the complaint.

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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. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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.
10. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
11. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
12. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within existing court or tribunal proceedings. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
13. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
14. 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(i), as amended)

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How I considered this complaint

15. I considered:
• the information X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
16. X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
17. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Special educational needs

Education health and care plans

18. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
19. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Timescales and process for EHC assessment

20. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Gathering advice for assessments

21. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
22. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
23. Those consulted have a maximum of six weeks to provide the advice.
24. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)

Reviews of education health and care plans

25. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
26. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
27. Where a 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;
• a notice providing details of the proposed amendments; and
• 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)
28. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
29. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
30. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Personal budgets and direct payments

31. Parents of children with EHC plans have a right to ask for a personal budget to provide the support in the plan. A personal budget is an amount of money the Council decides is necessary to deliver the provision set out in an EHC plan. Personal budgets can be delivered though:
• direct payments to parents;
• directly commissioned services;
• a third party managing the budget for parents; or
• a combination of the above.
32. Councils must provide information on personal budgets in its guidance on SEN services available locally.
33. Councils must also review direct payments within the first three months of the direct payments being made, and can ask the person receiving direct payments for information and evidence about how they are using a direct payment.

Appeals to the SEND tribunal

34. Where the Tribunal orders a council to:
• amend the special educational provision named in an EHC plan, the council must amend the EHC Plan within five weeks of the order being made; or
• amend the name or type of school in an EHC plan, the council must amend the EHC Plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014, regulations 44(2)(e) and 44((2)(f)) 
35. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)

Service failure

36. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

Alternative education provision

37. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
38. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
39. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
40. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
41. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
42. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
43. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

44. X’s daughter, Y, has special educational needs due to various health conditions, including attention deficit hyperactivity disorder (ADHD), anxiety, depression and language disorders.
45. Y started attending School B, a mainstream secondary school in September 1999 and struggled with the new environment. X asked the Council to assess Y’s special educational needs in March 2020 and the Council agreed to carry out the assessment around two months later. In her application for an assessment, X set out what she believed to be Y’s needs and said that Y had not been attending school for around two or three months.
46. To inform its assessment, the Council asked for information and advice from:
• Y’s school;
• its educational psychology and occupational therapy services;
• a speech and language service; and
• the community paediatrician.
47. The Council send X a draft of Y’s EHC plan around a week before the end of July 2020.
48. After X sent the Council her comments on the draft plan, the Council and X exchanged further draft plans and comments until the Council issued the final EHC plan in early October 2020. The Council then issued an amended version of this EHC plan in later November 2020. Both final plans named School B as Y’s educational placement. At the time the Council issued both final plans, it had not received or chased the speech and language advice it had requested.
49. X was not satisfied with the support listed in Y’s EHC plan or that School B was a suitable placement. X appealed to the SEND tribunal in mid-January 2021.
50. In June 2021, during the tribunal proceedings, X told the Council that Y was no longer attending School B, despite efforts to reintegrate her into school, and that she wanted it to arrange alternative education for Y. The Council approached X’s preferred provider and arranged remote learning for Y starting in September 2021.
51. The SEND Tribunal hearing took place in mid-October 2021. At the hearing, X and the Council reached an agreement about what support and education Y needed. They agreed that Y should receive education through a combination of online learning and face-to-face tuition at home. The Tribunal formalised the agreement a few days later and ordered the Council to issue an amended plan within 10 working days. The Council issued an amended EHC plan based on the tribunals order in early December 2021.
52. During October and November 2022, X and the Council discussed possible ways to arrange a learning mentor for Y, as this was included in the post-tribunal EHC plan. The Council told X that it could arrange a learning mentor if she wanted it to, or that it could include the costs in Y’s personal budget. X told the Council she wanted to include the learning mentor in the personal budget.
53. At the end of November, X told the Council she was finding it difficult to arrange a learning mentor for Y and asked the Council to help her arrange this. However, the Council did not send X information about its preferred supplier until mid-January 2022. X then arranged a learning mentor through the Council’s preferred supplier.
54. Shortly after it issued the amended plan after the tribunal, the Council tried to arrange an annual review to prepare for Y’s next stage of education. The Council said X did not agree with the dates the Council offered, so the review was delayed until March 2022.
55. The EHC plan agreed after the tribunal said that X would receive a direct payment to cover:
• 45 hours a year speech and language therapy;
• an emotional literacy programme;
• 4 sessions every term with a councillor and psychotherapist;
• 3 hours a week individual tuition in several subjects; and
• 10 hours a week support from a learning mentor.
56. X sent the Council her bank details shortly after the Tribunal hearing so that the direct payments could start. However, the Council did not sent X the paperwork it required her to complete until shortly before it issued the amended final EHC plan. X signed a direct payment agreement with the Council in early December 2021 and the Council made the first payment to X of just over £9,000 in early January 2022. At the time, the Council said this payment was for the period between the end of October 2021 and the middle of February 2022.
57. In March 2022, X asked the Council about the next payment and also queried why they Council had not made direct payments from September. The Council asked X to provide evidence about how she had spent the last payment and explained that the direct payment started after direct payments were agreed following the tribunal decision.
58. The Council said X was not able to provide evidence for all money it had paid and that it had some concerns about how the direct payment had been used. In April 2022, the Council reimbursed X for the sums she could evidence she had paid between October 2021 and the start of the Spring 2022 school term. It also paid X around £6,000 to cover the estimated costs for the first half of the Summer 2022 term.

My findings

EHC assessment

59. Councils must decide whether to complete an EHC assessment within six weeks of someone making a request. In Y’s case, the Council notified X of its decision to assessed just over two weeks later than it should have done.
60. I am satisfied with the Council’s explanation that this was because of changes it needed to make to arrange online multi-disciplinary meetings to consider requests at the start of the COVID-19 pandemic. Although the law at the time had not been relaxed, I am satisfied the unprecedented circumstances at the time meant the two-week delay was not avoidable and therefore there was no fault.
61. The law does not require the Council to arrange or commission specific assessments as part of the EHC assessment process. Instead, it must ask for advice from specific people set out in the law.
62. The evidence shows the Council requested information and advice in line with the regulations, including from the speech and language therapy service. There is no evidence that X asked the Council, at the time of her request, to seek advice from specific services, such as Child and Adolescent Mental Health Services (CAMHS). However, X mentioned several times in her assessment request that Y had significant difficulties with her mental health.
63. There is no evidence the Council considered seeking advice from CAMHS, despite the options on its advice response form suggesting it had done in other cases. There is also no evidence the Council chased up some requests for which it did not receive a response. I am satisfied this shows there was fault in how the Council considered which advice to request.
64. However, there is no evidence that advice or information from CAMHS was sought or considered during X’s SEND Tribunal and there is no reference to such advice in the EHC plan issued after the tribunal. Therefore, I am satisfied that the Council’s failure to consider seeking advice from CAMHS did not have a significant impact on the outcome of X’s appeal to the Tribunal. For the reasons given at the end of this statement, I cannot investigate how the Tribunal approached this issue during the appeal.
65. The Council also failed to ensure it had received the speech and language advice it had requested by the time it issued the final EHC plans in 2020. As a result, it produced these plans without that advice.
66. During the tribunal process, the Council received speech and language advice and agreed to include one hour a week of direct speech and language therapy in Y’s EHC plan. Since the Council agreed to this, I am satisfied that, had the Council ensured it had the advice when it produced the first final plan, it would have likely included speech and language therapy in that plan.
67. However, at the time it produced the 2020 EHC plans, the Council named a mainstream school placement for Y, rather than education otherwise than at school as it agreed during the tribunal. Therefore, it is likely the Council would have integrated the speech and language therapy with the school placement it named. I cannot say the speech and language therapy the Council would likely have included the 2020 EHC plans would have been the same as that the Council later agreed to. Since Y did not attend the school placement the Council named in the 2020 EHC plans, I cannot say that Y would have received speech and language therapy during the tribunal process. However, I accept there is a remaining uncertainty about whether Y would have received speech and language therapy during the appeal.
68. Councils must issue a final EHC plan within 20 weeks of the request for an EHC assessment. In Y’s case, the Council should have issued the final EHC plan by the end of July 2020. However, it did not issue the final plan until early October 2020; over 10 weeks late.
69. The Council issued the first draft plan only a few days before the final plan was due. This would not have allowed the required time for X to comment before the Council made the final plan. However, given there were still restrictions and extra pressures due to the COVID-19 pandemic, I am satisfied that the delay in issuing the first draft plan was not fault.
70. However, the Council then engaged in around two months of protracted negotiations with X and issued two more draft plans. Instead, given the final plan would already have been late, the Council should have considered issuing the final plan and allowing X to appeal. Although I appreciate that the Council was trying to resolve disputes about the plan and that X was providing further comments, the Council still had a duty to issue the final plan within the legal timescales. I am satisfied the Council’s failure to do so was a ‘service failure’, and was therefore fault which delayed X’s rights to appeal the content of the plan.
71. Since Y’s provision changed because of the appeal, I am satisfied the delay in issuing the plan caused a delay of two months to Y receiving the provision set out in her post-tribunal EHC plan.
72. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. Taking into account the part-time online education Y received in the two months before November 2021, the stage of her education at the time and the SEN detailed in the plan, I am satisfied that a remedy of £350 a month during that time is appropriate.

Information about personal budgets

73. The evidence shows the Council sent information about personal budgets to X when it first acknowledged her assessment request and in the covering letter for the first draft EHC plan it sent her. It also includes information about personal budgets in its website detailing the Council’s Local Offer, as required by the regulations.
74. I am satisfied the Council did send X information about her right to request a personal budget. The Council was only obliged to consider including a personal budget in Y’s EHC plan if X asked it to do so. There is no evidence X did so.

Reviewing Y’s EHC plan

75. Councils must review EHC plans at least every 12 months. The first review of Y’s EHC plan was due by early October 2021 but this was not carried out until March 2022.
76. Evidence from the Council shows Y’s school tried to start the EHC plan review process in May 2021. However, X felt the school did not need to attend the meeting, since Y was not attending school at the time, so the Council cancelled it. The Council said it decided not to review the plan due to the impending tribunal hearing.
77. The law does not make an exception to carrying out an annual review due to ongoing tribunal proceedings. Therefore, the Council should have taken steps to arrange an annual review even though there was an ongoing tribunal appeal. While I appreciate the Council believed it was acting appropriately in the circumstances, I am satisfied the failure to arrange the annual review was service failure and therefore fault.
78. However, I do not think the failure to carry out an annual review in the first 12 months caused Y a significant injustice. At the time the review was due to take place, X says Y was not attending school and therefore it is unlikely that holding a review would have provided further relevant evidence. At the same time, the Council and X were engaged in extensive negotiations during the tribunal process, so I am satisfied there was an opportunity to consider Y’s changing needs through that process instead.

Alternative education provision

79. For the reasons given at the end of this statement, I cannot consider any education Y missed a result of the Council naming School B in her EHC plan. Instead, I have considered whether the Council acted properly before it issued the plan in October 2020.
80. X told the Council in her March 2020 EHC application that Y had been out of school for between two and three months. The Council has provided evidence of the interventions Y’s school was trying to implement during that time to help Y return to school. However, there is no evidence the Council properly considered whether Y was actually receiving a suitable education at that time and whether it needed to consider making other arrangements. I am satisfied that was fault.
81. The evidence, including communications between X and School B show that Y received very little education between March and September 2020. Although School B made efforts to help Y return to school, this did not happen until the start of the 2020 school year and Y was effectively on a part-time timetable in September 2020.
82. Education should be full-time, unless a council decides that is not in a pupil’s best interest. The evidence shows that Y only had very little education between March and September 2020 and only a part-time education between September and October 2020. Had the Council acted on the information from X in March 2020, I am satisfied that Y would likely have received more education than she did.
83. Taking into account the part-time education Y received and the stage of her education in early 2020, I am satisfied that a remedy of £400 a month for the seven months between April and October 2020 is appropriate, taking into account a reasonable time for the Council to have arranged alternative provision.

Communication with X and Y’s school

84. Having considered the communication between the Council and both X and School B, it is clear that the communication was often complicated. X’s letters to the Council were often very detailed and included both matters related to the appeal and ongoing support for Y.
85. Given the complex nature of the situation and the large number of issues which were discussed, I do not consider the Council’s communications with either X or School B were so flawed as to constitute fault.

Arranging the support in Y’s education health and care plan

86. The provision in Y’s first EHC plan assumed that much of the support would be delivered in a school / classroom setting at School B.
87. The Council believed that School B was suitable for Y and made the placement available. School B told X that Y would be allowed to attend, even during COVID-19 lockdown, since she had an EHC plan. However, X said Y was not able to attend due to her physical and mental health.
88. The evidence shows the Council took reasonable steps to secure the provision in Y’s EHC plan by making the school place named in her plan available and funding the school to provide the provision included in the plan. For the reasons given at the end of this statement, I cannot consider any education X said Y missed between October 2020 and October 2021 due to School B being unsuitable for her.

Delays after tribunal decision in October 2021

89. The Tribunal ordered the Council to issue an amended EHC plan for Y within two weeks of the date of its decision. Therefore, the Council should have issued the amended plan by the end of October 2021. However, the Council did not issue the amended plan until early December 2021, around 5 weeks late. This was fault which delayed the start of direct payments agreed in the plan.

Direct payments

90. The post-tribunal EHC plan set out a personal budget and direct payments of around £32,000 a year. I am satisfied with the Council’s explanation that the Direct payment was due to start from October 2021, after the tribunal decision.
91. After a meeting with the Council shortly after the Tribunal’s decision, X sent her bank details to the Council so it could start the payments. However, the Council did not inform its finance team about the personal budget until it issued the final plan in December. This delayed the start of the direct payments which caused X avoidable frustration in chasing the Council about this.
92. X says that the delay in starting the direct payments caused a delay in Y receiving all the support in her amended EHC plan, including a support from a learning mentor which was only arranged from January 2022.
93. The responsibility for arranging a learning mentor fell to X, since this was included in the personal budget in Y’s EHC plan, at X’s request. However, I am satisfied there were delays between when X asked the Council for help in late November 2021 and when the Council responded to this request in mid-January 2022. That delay was fault.
94. The evidence shows that X arranged a learning mentor for Y though the Council’s preferred supplier quickly after it sent her the details of this. Therefore, I am satisfied that, had the Council responded to X’s request for this help more quickly, Y would have had a learning mentor around two months sooner. The learning mentor support was a significant part of the provision in Y’s EHC plan. This lack of a learning mentor caused Y further avoidable distress, although I cannot say that it caused Y’s health conditions to get worse.
95. Although the Council told X the first payment was for the period between October 2021 and mid-February 2022, the payment it made was the amount for the whole of the Spring term. The Council has not explained how it calculated the first payment.
96. When X asked about the next payment in March 2022, the Council asked her for information about how she had used the payment already made. X was only able to provide some evidence for the payments so far. The Council was entitled to ask for that information and to review how X had managed the personal budget.
97. Despite the Council’s concerns, it reimbursed X for payments she could evidence between late October 2021 and the start of the Spring 2022 term. I am satisfied with the Council’s explanation for why it took this approach and that this put X back in the position she would have been, had the first payment been larger.
98. Although X believes the Council should pay the direct payments in three instalments each year (before each school term) the law does not require the Council to take this approach. I am satisfied the Council has given reasons for paying in smaller instalments more often and for monitoring the direct payments closely.

Complaint handling

99. X sent a formal complaint letter to the Council in July 2021, during the tribunal process. This was a joint complaint letter addressed to both the Council and School B and covered issues both related to the appeal and Y’s ongoing education.
100. There is no evidence the Council responded to this complaint, including the parts of the complaint which were separate from the ongoing tribunal. The evidence shows the Council’s SEND service did not fully understand X’s complaint, but the Council did not take any steps to clarify things with her. I am satisfied this was fault which caused X avoidable frustration, time and trouble.
101. However, I do not believe this delayed X’s complaint to the Ombudsman. This is because, had X complained while the tribunal was ongoing, we would have likely postponed our investigation until after the tribunal’s decision.

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Agreed action

102. Within one month of my final decision the Council will:
• apologise to both X and Y for the fault I have identified above;
• pay X £5,700 comprised of:
1. £700 to recognise the education Y missed due to delays in issuing the first EHC plan;
2. £2,800 to recognise the education Y missed due to the Council’s failure to properly consider whether Y needed alternative education provision between March and October 2020;
3. £400 to recognise the lack of a learning mentor between late November 2021 and mid-January 2022;
4. £900 to reimburse X for the cost of the private speech and language therapy she arranged;
5. £400 each for X and Y to recognise the avoidable distress and uncertainty they were caused; and
6. £100 to recognise the avoidable time and trouble caused to X by its failure to properly clarify and respond to her complaint.
103. Within three months of my final decision the Council will:
• review how it manages and monitors the EHC process to ensure it complies with the statutory timescales;
• remind relevant staff that they should act on reports from parents of children being out of school and missing education to ensure it properly considers its duties to arrange alternative education; and
• review how it records and monitors the advice it requests during EHC assessments. It should ensure it has adequate processes to make sure it receives the advice it needs before making EHC plans.
104. The Council should provide us with evidence it has complied with the above actions.

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Final decision

105. I have completed my investigation. There was fault in how the Council managed the EHC plan process, considered whether it needed to arrange alternative education and responded to X’s complaint. The Council agreed to apologise, pay a financial remedy and review its procedures.

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Parts of the complaint that I did not investigate

106. X appealed the content of Y’s EHC plan to the SEND Tribunal. The law does not allow us to consider matters which someone had appealed about or matters very closely linked to the appeal.
107. Therefore, I cannot consider whether Y’s EHC plan met her needs or any education she missed due to the Council’s decision that School B was a suitable placement. This is because Y’s SEN was closely related to her physical and mental health and this is the reason X said she was out of school during the appeal process. This is so closely linked to the suitability of School B and the content of Y’s EHC plan that I cannot consider X’s complaint about this.
108. I have also not considered the Council’s conduct during the appeal. The tribunal has extensive case management powers and X brought the Council’s conduct to the tribunal’s attention at the time. Since the conduct of tribunal proceedings are so similar to the conduct of court proceedings, which we cannot consider, I am satisfied it would not be appropriate for us to consider X’s complaint about the Council’s conduct during the appeal.

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Investigator's decision on behalf of the Ombudsman