Summary: Mrs X complained the Council failed to provide her child D with suitable education and support for their special educational needs. There was fault by the Council which caused D to miss education and special educational needs support. It also caused avoidable distress for D, and avoidable distress, time, and trouble for Mrs X. The Council agreed to apologise, agree reasonable adjustments it will make for Mrs X, and pay a financial remedy. It will also review processes and issue reminders to its staff.

The complaint

1. Mrs X complains the Council failed to provide her child D with suitable education and support for their special educational needs (SEN) from 2022 onwards. She says the Council failed to:
• ensure D received the provision set out in their Education, Health, and Care (EHC) plan;
• ensure D received suitable alternative education at times when they were out of school;
• review D’s EHC plan properly, within statutory timescales;
• properly consider Mrs X’s requests for a personal budget, or education otherwise than at school (EOTAS), when D’s school said it could not meet their needs;
• make reasonable adjustments for Mrs X, who has a disability, so she could engage fully in the EHC plan process and review meetings; and
• communicate properly with Mrs X about these issues, keep her updated, and respond when she complained.
2. Because of this Mrs X says:
• D missed education, and support for their special educational needs. This affected their physical and mental health;
• Mrs X and her husband were caused stress. It affected Mrs X’s studies for her degree, as caring for D became a full-time job. Her husband had to miss some work which impacted the family financially; and
• the family experienced a financial loss due to the cost of educational materials for D to study at home.
3. Mrs X wants the Council to:
• apologise and accept it failed D, and failed Mrs X because it did not make reasonable adjustments for her;
• provide a financial remedy to recognise the impact on D, and the time and trouble spent by Mrs X; and
• arrange suitable full-time equivalent tutoring for D at home so they can be educated otherwise than at school.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when a school is acting on behalf of a council to secure educational provision as set out in Section F of a young person’s Education, Health, and Care Plan.
7. 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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
9. 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

10. I considered:
• information provided by Mrs X and discussed the complaint with her;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. 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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What I found

What should have happened

Education Health and Care (EHC) plans

13. A child with special educational needs (SEN) may have an Education Health and Care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them.
14. 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, reviews, and re-assessments, and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the Special Educational Needs and Disability (SEND) Regulations 2014. Councils should have regard to statutory guidance and only depart from it where there are good reasons.

Duty to secure EHC plan provision

15. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

School named in the EHC plan

16. Section I of an EHC plan gives the name and type of school the child will be placed in.
17. The child’s parents or the young person have the right to ask the Council to name a particular school setting in the plan. The Council must comply with this preference unless it would be unsuitable for the child, or the child’s attendance would cause issues for the setting in terms of resources or the efficient education of others. (SEND Code paragraphs 9.78 to 9.80)

EHC plan review process

18. Councils must review EHC Plans as a minimum every 12 months. The review process enables changes to be made to the plan, so it remains relevant to the child’s needs and desired outcomes. (SEND Code paragraphs 9.166 and 9.186)
19. A council can require a school to convene and hold an annual review meeting on its behalf. (SEND Code paragraphs 6.56 and 9.173)
20. 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. (SEND Regulations 2014 Section 20(10), and SEND Code paragraph 9.176)
21. 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, and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes, within four weeks of the annual review meeting. (SEND Regulations 2014 Section 22(2), and SEND Code paragraphs 9.176 and 9.194)
22. Following comments from the child’s parent or the young person, if a 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 proposed amendments to the parents. (SEND Regulations 2014 Section 22(3), and SEND Code paragraph 9.196)

Appeal rights and the SEND Tribunal

23. 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.
24. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is closely 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).

Personal budgets for children with EHC plans

25. Section J of an EHC plan details any personal budget, i.e., an amount of money identified by the Council to deliver provision in the plan where the parents or the young person want to be involved in arranging the provision.
26. The child’s parents or the young person have a right to ask for a personal budget once a council has confirmed it will prepare an EHC Plan, or during the review of an existing plan. (SEND Code paragraph 9.98)

Education otherwise than at a school (EOTAS)

27. Councils have the power to arrange education and SEN provision to be delivered otherwise than at a school or institution (EOTAS), where it would be inappropriate for a child to attend a school setting. (Children and Families Act 2014 Section 61)
28. Where a child is to receive some provision in a school setting, that school should be named in Section I of their EHC plan. However, any provision which is to be delivered otherwise than at a school should be clearly set out in Section F of the plan. If all the child’s provision is to be EOTAS, then this should be specified in Section I of the plan instead of naming a school.
29. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education (EHE) is distinct from EOTAS. In choosing to educate a child at home outside of a formal EOTAS arrangement with the council, the parents take on full responsibility for arranging and paying for the education, including examination costs.

Alternative education for a child out of school

30. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19)
31. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
32. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
33. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. A part-time timetable must not be treated as a long-term solution.
34. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

The Equality Act and reasonable adjustments

35. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport, and the carrying out of public functions.
36. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The ‘protected characteristics’ referred to in the Act are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
37. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
38. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.
39. In May 2022 we published a focus report, “Equal access: Getting it right for people with disabilities". This set out what we expect from bodies we investigate in considering and implementing reasonable adjustments. This said a relevant body should:
• be proactive in asking every person who approaches the service whether they need any changes to be made in the way they are dealt with;
• where it is aware of a person’s disability, anticipate their needs and make any necessary reasonable adjustments in consultation with them or their representative. The service should not wait for the person to tell them what adjustments they require; and
• where a person asks for reasonable adjustments to be made, put these in place unless the request is not considered reasonable.

Summary of key events

40. D has had an EHC plan since 2020, when they were in year 7 at a mainstream school, School C. In 2021, Mrs X appealed to the SEND Tribunal about the content of D’s EHC plan. The Council issued an amended plan following an order from the Tribunal in July 2021.
41. In September 2021, D started year 8 at School C. In May 2022, the school held an annual EHC plan review, which the Council attended. At the review the Council was made aware that Occupational Therapy (OT) provision in D’s July 2021 (post-Tribunal) EHC plan had not been in place, but was now, as of a week earlier. It was also discussed at the review that D sometimes struggled to attend school.
42. Five weeks later, the Council told Mrs X it planned to amend D’s EHC plan and sent her a proposed draft, naming School C. Mrs X said she did not think it appropriate for the Council to make any changes to the plan. She said D had not yet received the SEN provision set out in the July 2021 plan and was struggling with attendance at School C. She asked the Council to consider whether D could be educated otherwise than at a school (EOTAS). The Council did not respond specifically to this email but wrote to Mrs X a week later to say it had decided to maintain the plan with no changes following the May review.
43. In September 2022, D started year 9 at School C. Mrs X made a complaint to the Council because it had not responded to her email from the end of the previous school year. The following day, School C held an early EHC plan review, which the Council attended. The Council said this was an early review because D’s school attendance had worsened. At the review Mrs X said D was overwhelmed by the learning environment at School C and could not cope with this full time. It was recorded at the review D needed “flexi-schooling”, remaining on roll at School C part time, with tutoring arranged at home when not in school.
44. In December 2022, 12 weeks had passed since the review, but the Council had not issued a decision about whether it would amend D’s EHC plan. The Council told us it had decided following the September review to arrange an Educational Psychologist (EP) assessment, so it was waiting for this before amending the plan.
45. In early January 2023, the EP provided the Council and Mrs X with a report of their discussion with D. Mrs X also contacted the Council several times. She said:
• the Council was already aware D had not attended school for more than one or two days a week since the start of December 2022. Mrs X said this was because the provision at School C was not suitable for D and caused them anxiety;
• D would now attend School C three days a week until the Council amended the EHC plan;
• she was concerned “flexi-schooling” meant Elective Home Education (EHE). Mrs X clarified the family did not want this as they wanted the Council to keep responsibility for arranging and funding D’s education;
• the family wanted EOTAS specified in D’s EHC plan. Mrs X asked for guidance about how to receive a personal budget so she could ensure any EOTAS package for D was suitable; and
• the Council was already aware following the 2021 SEND Tribunal process that Mrs X had attention deficit hyperactivity disorder (ADHD) and autism and needed reasonable adjustments. Mrs X asked the Council to give brief and direct answers to her queries when communicating in writing, and to not assume she had prior knowledge of EHC plan processes. She also asked the Council to record all telephone calls with her.
46. Also in January 2023, after the contact from Mrs X, School C contacted the Council to say it could no longer meet D’s needs, which had increased due to a decline in their wellbeing. School C asked the Council to consider EOTAS for D. Shortly after this, the Council told Mrs X it planned to amend D’s EHC plan and sent her a proposed draft. In section A of the plan, it recorded D’s wishes for flexi-schooling, with 2-3 days per week in school and a home tutor. However, it named School C in Section I of the plan and did not specify any EOTAS arrangements in Section F.
47. Mrs X came to the Ombudsman in early February 2023. The Council had not yet finished its complaints procedure, so we asked it to respond to Mrs X’s complaint first.
48. A month after the Council issued the draft EHC plan, Mrs X asked for an emergency EHC plan review. The Council said it did not consider this necessary as there had already been two reviews in 2022. However, it confirmed it would fund a home tutor for D and agreed to arrange a meeting with School C to progress this.
49. Two months later, in April 2023, following chasing by the Ombudsman, the Council responded to Mrs X’s complaint at Stage 1 of its procedure. It said:
• School C took longer than it should have to arrange the Occupational Therapy provision in D’s July 2021 (post-Tribunal) plan. The Council was not aware of this until the May 2022 review and in future it would ensure it made necessary checks with schools to ensure delivery of EHC plans;
• there had been delays following the September 2022 EHC plan review because the Council was waiting for the EP assessment;
• this had also meant delays in arranging home tutoring for D, because it had considered it “necessary and proportionate” to get the views of the EP to clarify D’s needs first; and
• following a meeting with Mrs X and School C in early March, home tutoring was now in place for D.
50. Mrs X told the Council she was disappointed with its complaint response. She said:
• although D was now receiving home tutoring this was not for enough hours; and
• the Council should arrange EOTAS or alternative education because D did not want to attend School C and the school had confirmed three months earlier it could not meet D’s needs.
51. In late April 2023, the Council issued a final amended EHC plan for D, 32 weeks after the September review. In section A it recorded D’s wishes for flexi-schooling, with 2-3 days per week in school and a home tutor. However, it still named School C in Section I of the plan and did not specify any EOTAS arrangements in Section F.
52. In June 2023 the Council confirmed to the Ombudsman it would not consider Mrs X’s complaint at Stage 2 of its procedure because it did not consider it would change the outcome. Therefore, we began our investigation. At this point Mrs X had told the Council D would no longer attend School C and had asked it to increase D’s home tutoring hours to ensure a suitable full-time-equivalent education.

My findings

What I have and have not investigated

53. Mrs X had a right of appeal to the SEND Tribunal about:
• the Council’s July 2022 decision to maintain the EHC plan with no changes following the May review, including the decision to continue to name School C as D’s placement; and
• the content of D’s final EHC plan issued in April 2023, including the Council’s decision to continue to name School C as D’s placement.
54. The SEND Tribunal is an independent expert body whose decisions are binding on the Council. The law says we cannot normally investigate an issue which someone could have appealed to a tribunal unless we consider it would have been unreasonable to expect them to appeal.
55. The Council told Mrs X how to appeal to the Tribunal, both when it decided to maintain the plan in July 2022, and when it issued an amended final plan in April 2023. She was also already aware of the Tribunal process as she had used it before in 2021. I therefore consider it reasonable for Mrs X to have appealed if she disagreed with the SEN provision set out in the plan, or that School C continued to be named in Section I.
56. This means I did not consider Mrs X’s complaint about whether the Council should have amended the plan to specify EOTAS:
• in July 2022, instead of keeping it the same and naming School C; or
• in the amended April 2023 plan, instead of naming School C.
57. The Ombudsman also cannot investigate any matters which are closely linked to issues which are, or could reasonably have been, the subject of a tribunal appeal. Where a child is out of school because the provision or school named in their EHC plan does not meet their needs, we cannot seek a remedy for any missed education after a final amended plan, or a decision not to amend a plan, was issued. The missed education is closely linked to the issue which could be appealed about, namely the suitability of the school and SEN provision in the plan.
58. This means I did not consider or recommend a remedy for education D missed when not attending full time:
• at the start of the 2022/2023 school year, because the Council told Mrs X in July 2022 it would keep the plan the same and continue to name School C, which she could have appealed about to Tribunal; or
• after the amended April 2023 plan, because Mrs X again could have appealed to Tribunal following this.

The period I investigated

59. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons to. Mrs X came to the Ombudsman in February 2023, so we would usually only look at what happened after February 2022. However, I decided I should investigate what happened from the start of the 2021/2022 school year, when the July 2021 post-Tribunal plan should have been in place. This is because there were significant delays in the Council’s EHC plan processes and complaint handling which delayed Mrs X in coming to the Ombudsman.

Delivery of EHC plan

60. The July 2021 (post-Tribunal) EHC plan set out the SEN provision D should receive. When the Council issued an amended final plan in April 2023, section E of the plan set out new outcomes for D to achieve. However, the SEN provision in Section F, i.e., what should be delivered, remained mostly the same. I have summarised what D should have received, and what they did receive, in the table below.

66. D received some but not all the provision in their EHC plan.
67. The Council was not aware there were issues with delivery of the EHC plan until the May 2022 review meeting. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. However, we consider councils should be able to demonstrate due diligence in discharging this important legal duty. As a minimum councils should have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.
68. We would have expected the Council to check the educational provision in D’s post-Tribunal EHC plan was in place in good time, and certainly before the May 2022 review. The Council accepted it took no steps to assure itself provision was in place. This was fault which meant D missed SEN provision they were entitled to. We usually expect EHC plan provision to be in place within no more than half a term. Therefore, the Council should remedy the injustice caused from November 2021 to July 2023.

EHC plan review

69. The Council accepted it took too long to complete the review process following the September 2022 meeting. It issued a plan 20 weeks later than the statutory timescales. This was fault, which caused distress and frustration to Mrs X, for which the Council should provide a remedy. However, I do not consider it changed anything for D because the provision in the plan remained the same following the review. The delay frustrated Mrs X’s right to appeal the plan, but once the plan was issued, she did not appeal it anyway.
70. Mrs X said she repeatedly asked the Council to provide the family with a personal budget for D’s EHC plan and it did not consider this. The first record of a request for a personal budget from Mrs X was in January 2023, during the review process. Mrs X said she also asked the Council to consider this during the 2022 review meetings. The Council’s failure to properly consider and respond to this was fault, which caused Mrs X distress and frustration. The Council should remedy the injustice caused.
71. Mrs X said she did not have proper notice of the review meetings and relevant documents were not shared in advance. Councils may delegate responsibility for arranging reviews to schools. There was no evidence Mrs X raised concerns with the Council about the conduct of the meetings. We would not find fault with a council unless it was aware there were issues and failed to act.

Alternative education

72. The Council first became aware of issues with D’s attendance at the May 2022 EHC plan review. However, there was no evidence of significant attendance issues, with absences of 15 days or more, which should have led the Council to consider its section 19 duty to provide alternative education at this stage. Following the review, it decided to maintain the EHC plan with no changes.
73. In September 2022 D’s attendance worsened and they were attending school part-time. A part-time timetable should not be a long-term solution; education should be full-time unless this is not in a child’s best interest. It was recorded at the September 2022 review that the threshold for the Council’s section 19 duty had now been met. The Council decided to arrange an EP assessment which did not happen until 11 weeks later.
74. In February 2023, the Council agreed to fund home tutoring for D. Therefore, it accepted its section 19 duty to provide alternative education. The Council took too long to make this decision following the September 2022 review. It then took too long to put the agreed tutoring in place; this did not start until April 2023. After the September 2022 review, the Council should have considered its section 19 duty and arranged necessary alternative education by the end of 2022. Therefore, it should remedy the injustice caused to D by their loss of education from January 2023. However, as described at paragraph 58, we cannot remedy missed education after the April 2023 EHC plan which could have been appealed.

EOTAS and school setting

75. After the May 2022 EHC plan review, Mrs X repeatedly asked the Council to consider putting in place EOTAS for D. The Council did not properly consider or respond to this request. This was fault which caused Mrs X distress and frustration.
76. The Council recorded D’s preference for a “flexi-schooling” arrangement in the April 2023 EHC plan, in Section A about D’s views. It did not record this in section F as provision which must be delivered. If Mrs X wanted to formalise this arrangement as EOTAS rather than a temporary arrangement to meet the Council’s section 19 duty, she should have appealed the plan to the SEND Tribunal.

Communication with Mrs X

77. Mrs X repeatedly raised specific queries with the Council about the EHC plan process, EOTAS, and alternative education. The Council did not respond to these queries. Instead, it continued to issue EHC plan letters using its standard template. Although these letters included information about advice services, it was clear Mrs X needed help understanding the process. The Council should have answered her direct questions and properly explained its processes. Its failure to do so was fault, which caused Mrs X distress. The Council should remedy the injustice caused.

The Equality Act and reasonable adjustments for Mrs X

78. We cannot decide if an organisation has discriminated against an individual, or if it has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act. The Council failed to do this in its communications with Mrs X.
79. As described at paragraph 38, the reasonable adjustments duty in the Equality Act is ‘anticipatory’. As described at paragraph 39, our “Equal access” focus report says councils should be proactive and, when aware of a person’s disability, anticipate their needs and consult them about reasonable adjustments. They should not wait for the person to tell them what adjustments they need. The Council was aware of Mrs X’s disabilities following the SEND Tribunal process where she had asked for reasonable adjustments. There was no evidence the Council asked Ms X whether she needed any adjustments to how it should communicate with her. This was fault.
80. Our “Equal access” focus report says where someone asks for reasonable adjustments to be made, these should be put in place unless the request is not considered reasonable. The Council said the only adjustment Mrs X asked for was help with opening emails it shared with her using an encrypted email service. However, the evidence showed Mrs X asked for other adjustments in January 2023, as described at paragraph 45. The Council did not consider or respond to this request, which was fault. The Council also said where Mrs X struggled to open emailed documents it posted these to her instead. This suggests it considered this a reasonable adjustment. However, the evidence showed it continued to use the encrypted email service when sharing its Stage 1 complaint response with Mrs X. Therefore, it failed to provide an adjustment it had agreed was reasonable. This was fault.
81. The Council did not clearly explore or agree with Mrs X what adjustments she needed. It also did not properly record any consideration of adjustments. I consider this evidence the Council did not properly consider how it should communicate with Mrs X, including its reasonable adjustment duties to her under the Equality Act, as a person who is disabled. This was fault. Because of this, the Council did not communicate with Mrs X in the way she needed it to, which caused her distress and confusion. The Council should remedy the injustice caused.

Complaint handling

82. The Council’s complaints procedure says it will respond to complaints at Stage 1 within 10 working days. Where someone requests a Stage 2 review, it says it will respond within 20 working days.
83. The Council only responded to Mrs X at Stage 1 after she had come to the Ombudsman, and we chased this on her behalf. It took the Council 31 weeks to issue a Stage 1 response. It then took another 7 weeks, following further chasing by us, to confirm it would not consider the complaint at Stage 2. These delays were fault.
84. Also, the Council upheld Mrs X’s complaint and accepted it failed to properly check D’s EHC plan provision was in place. However, it did not offer any remedy to put things right. This was fault.
85. The Council’s failure to handle Mrs X’s complaint properly caused her avoidable distress, and time and trouble in bringing her complaint to the Ombudsman. The Council should remedy the injustice caused.

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Agreed action

86. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation will consider this guidance in making the apology I have recommended below.
87. As set out in our Guidance on Remedies:
• where we find fault has resulted in loss of educational provision, we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. The Council should remedy the education D missed from January to April 2023. This is just over one term of education; and
• in addition to educational provision, we recommend additional remedies for loss of SEN support such as Occupational Therapy. The level of financial remedy for this is likely to be lower than that for loss of educational provision. We consider the level of provision missed and the impact of this on the child. The Council should remedy the SEN support D missed from November 2021 to July 2023.
88. In deciding an appropriate financial payment, I considered the following.
• During this period, D was in years 8 and 9 of secondary school. As set out in our Guidance on Remedies, we do not consider this to be one of the most significant periods in a child’s school career, as we would say for the first year of primary or secondary school.
• D was not completely without education; they attended School C part-time. However, my view is D would have been able to engage with full-time education throughout this period if it had been available to them.
• D received some, but not all, the provision in their EHC plan. I consider the remedy for September 2021 to July 2022 (when D was in year 8) should be higher because they went without Occupational Therapy for this year.
89. Based on these factors, I consider the following remedies to be appropriate.
• £900 for the missed education from January to April 2023.
• £400 per term for the 2.5 terms of missed SEN support, including Occupational Therapy, in the 2021/2022 school year.
• £200 per term for the three terms of missed SEN support in the 2022/2023 school year.
90. Within one month of our final decision the Council will:
1. apologise for the faults identified and the impact of those faults on the family;
2. agree, in consultation with Mrs X, any reasonable adjustments it will provide to help her use its services, then ensure it implements these across its services;
3. pay Mrs X a total of £3,600, comprising of:
1. £2,500 to recognise the education and SEN support D missed. This is intended for D’s future educational benefit;
2. £600 to recognise the avoidable distress caused to Mrs X by the Council’s failings;
3. £300 to recognise the avoidable distress to D; and
4. £200 to recognise the avoidable time and trouble Mrs X spent pursuing her complaint.
91. Since the issues that occurred in D’s case, because of other Ombudsman investigations, the Council has agreed to several recommendations to improve its services and procedures. I therefore do not consider it necessary to make further recommendations about:
• procedures to check new or substantially different EHC plans are being delivered;
• delays in the EHC plan review process;
• the provision of alternative education under section 19 of the Education Act 1996, without delay; and
• delays in complaint handling.
92. Within three months of our final decision the Council will:
1. share a copy of our final decision with all staff who work in its SEND service and complaints service. It should remind them of the Council’s duties under the Equality Act 2010, including the reasonable adjustment duty;
2. issue reminders to all relevant staff in its SEND service:
1. that where a child’s parents or young person asks for EOTAS arrangements to be specified in the EHC plan, the Council must consider and respond to this request;
2. that where a child’s parents or young person asks for a personal budget during an EHC plan review, the Council must consider and respond to this request; and
3. about the importance of communicating properly with families, responding to specific queries, and keeping them updated about any delays.
3. issue reminders to staff involved in the complaint response in this case that when the Council accepts fault it should consider how it can put things right for the complainant, in line with the Ombudsman’s guide, ‘Effective complaint handling for local authorities’.
93. The Council will provide us with evidence it has complied with the above actions.

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Final decision

94. I have completed my investigation. There was fault by the Council which caused D to miss education and special educational needs support. It also caused avoidable distress for D, and avoidable distress, time, and trouble for Mrs X. The Council agreed to our recommendations to remedy this injustice, review processes, and issue reminders to its staff.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman