Summary: Miss X complains the Council failed in its duties to provide suitable education and Special Educational Needs support to her child, D. There was fault by the Council which caused D to miss education and SEN support. It also caused avoidable distress for D and Miss X. The Council agreed to apologise and pay a financial remedy. It will also produce an action plan to address the faults identified in this case, and issue reminders to its staff.

The complaint

1. Miss X complains the Council failed to ensure her child, D, received suitable education and Special Educational Needs (SEN) support in 2022 and 2023. She says the Council:
1. wrongly refused to assess D’s Education, Health, and Care (EHC) needs when she asked it to in May 2022;
2. delayed in assessing D’s EHC needs, after it agreed to in October 2022 following an appeal Miss X made to the First-Tier Tribunal (Special Educational Needs and Disability);
3. failed to ensure D received suitable alternative education when they were not attending an educational setting from March to October 2023;
4. issued a final EHC Plan for D in June 2023 which was not suitable and did not name an educational setting;
5. after it issued the final Plan in June 2023, failed to ensure D received the SEN provision set out in the Plan while they were out of school, until October 2023;
6. did not communicate with Miss X properly about these issues;
7. wrongly shared D’s personal data internally within the Council, and did not remove D’s records from a specific team when Miss X asked it to; and
8. discriminated against D in its actions.
2. Because of this Miss X says:
• D missed education and SEN support. This had a significant impact on their mental health;
• Miss X experienced stress and the impact of this on her had financial implications for the family; and
• Miss X experienced financial loss because she paid for alternative education for D and sought legal advice about the issues.
3. Miss X wants the Council to apologise to D and pay financial compensation.

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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 provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is another body better placed to consider the complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B)). We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. When considering complaints 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.
8. 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

9. I considered:
• information provided by Miss 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.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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

Legislation and statutory guidance

Education, Health, and Care (EHC) Plans

12. A child or young person with special educational needs (SEN) 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.
13. 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)  
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 and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.

Alternative education while out of school

15. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
16. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
17. 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)
18. 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))
19. 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)
20. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
21. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time: Out of school, out of sight? published July 2022. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

EHC Plan appeal rights

22. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
23. There is a right of appeal to the SEND Tribunal against:
• a decision not to carry out an EHC needs assessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• once a Council issues a final EHC Plan, the description of the child’s SEN, the SEN provision specified, the school or placement specified, or the fact that no school or other placement is specified.
24. 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)
25. This means if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or a consequence of, a parent or young person’s disagreement about the SEN provision or educational placement in the EHC Plan, we cannot investigate a lack of SEN provision, or alternative educational provision.
26. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
27. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
28. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 
• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

EHC needs assessment following a successful appeal

29. Where someone appeals to the Tribunal, a council may decide to concede the appeal before the Tribunal considers it. If someone appeals a council’s decision not to carry out an EHC needs assessment, and the council concedes, if it then decides following assessment it should issue an EHC Plan, it must issue the final Plan within 14 weeks of the date it conceded.
30. As part of an EHC needs assessment, councils must gather advice from relevant professionals, including psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice.
31. Where there are exceptional circumstances, it may not be reasonable to expect councils to comply with statutory timescales in issuing an EHC Plan. The SEN Regulations 2014 set out specific exemptions. These include where:
• the Council requests advice and information, and the child misses an appointment needed to get this advice, which means it takes longer than six weeks; and
• exceptional personal circumstances affect the child or their parent and this causes delays.
32. The family should be informed if exemptions apply so they understand the reason for any delays. Councils should aim to keep delays to a minimum and as soon as the conditions that led to an exemption no longer apply should complete the process as quickly as possible. All remaining elements of the process must be completed within their prescribed periods, regardless of whether exemptions have delayed earlier elements.

EOTAS (Education Otherwise Than At School)

33. 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).
34. 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.

Elective Home Education (EHE)

35. 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.
36. The Department for Education (DfE) issued new guidance in April 2019 to reflect the growing concern about children being educated at home who may not be receiving a suitable education or who may be at risk of harm. Councils do not regulate home education. However, the law requires councils to enquire about what education is being provided when a child is not attending school full-time. The 2019 guidance says the primary responsibility remains with the parent, but councils have a social and moral duty to ensure that a child is safe and being suitably educated.
37. Where parents do not provide sufficient evidence, councils can serve a school attendance order, naming a school which the child should attend. Parents can, if unhappy with the serving of such an order, refer the matter to the Secretary of State. The guidance says, “Whether or not the parents have sought revocation and intervention by the Secretary of State, if they do not cause the child to be registered at a school, and regularly attend it, then the authority should consider prosecution, and should proceed with this unless there is very good reason not to do so”.

Parts of the complaint I have not investigated

Complaints 1a and 1d

38. Miss X said the Council:
• wrongly refused to assess D’s Education, Health, and Care (EHC) needs when she asked it to in May 2022; and
• issued a final EHC Plan for D in June 2023 which was not suitable and did not name an educational setting.
39. I did not investigate these parts of Miss X’s complaint because Miss X appealed to the SEND Tribunal about these issues. The law says the Ombudsman cannot investigate any matter which has been appealed to the Tribunal.

Complaint 1g

40. Miss X said the Council wrongly shared D’s personal data internally within the Council, and did not remove D’s records from a specific team when she asked it to.
41. I did not investigate this part of Miss X’s complaint. We will not normally investigate a complaint about data protection, as we expect people to refer these matters to the Information Commissioner. The Information Commissioner is the body set up by the government to respond to complaints and concerns about data protection and access to personal information. This part of Miss X’s complaint can be separated out from the rest of her complaint and would be better dealt with by the Information Commissioner.

What happened

42. In mid-2022, D was near the end of year 6. Miss X asked the Council to carry out an EHC needs assessment for D, as she thought they needed an EHC Plan. The Council refused to assess, so Miss X appealed this decision to the SEND Tribunal. On 3 October 2022, before the Tribunal heard Miss X’s appeal, the Council conceded the appeal and said it would change its decision and assess D. By this point D was in their first term of year 7.
43. In mid-December 2022, after chasing by Miss X, the Council considered D’s case at its SEN Panel and agreed to start the EHC needs assessment process. It then requested advice and information for the assessment, including from an Educational Psychologist (EP). It did not update Miss X about this.
44. In mid-January 2023, Miss X found out an EP was due to assess D in school in three days. Miss X said the Council had not followed process and had taken too long to carry out the assessment after it conceded the appeal three months earlier. She said she was unclear about whether she therefore needed to go back to the Tribunal, and asked the Council to provide clarification on the process before she consented to the EP assessment of D. The Council cancelled the EP assessment and told Miss X D would need to wait a further six weeks to be assessed. Two weeks later, in late-January 2023, Miss X told the Council the EP assessment would need to wait until D was well enough to be assessed. A month later in late-February 2023, Miss X told the Council it could now arrange the EP assessment, which then took place within two weeks.
45. In early-March 2023, D stopped attending school altogether as they were too unwell to attend due to their mental health.
46. In late-May 2023, the Council decided following its assessment that it would issue an EHC Plan for D, and issued the final Plan in mid-June 2023. D had not returned to school, and the Council did not name a school setting or type of school in the Plan. It told Miss X it was consulting schools to be named in the Plan and could update it again once it found a placement. Miss X said she thought D was too unwell to attend any school setting and asked it to arrange a package of EOTAS (Education Otherwise Than At School). The Council said it was still consulting school settings but if it could not find a setting to meet D’s needs it would consider EOTAS.
47. In September 2023, D should have started year 8, and was still out of school with no placement identified. Miss X complained to the Council. She also appealed to the SEND Tribunal about the June 2023 EHC Plan; part of the appeal said she thought the Plan should specify an EOTAS package as D could not attend a school setting. Shortly afterwards, Miss X asked the Council to consult a new special school which had not yet opened (School Q), to be named in D's EHC Plan. The Council agreed it would consult School Q.
48. In late-September 2023, the Council responded to Miss X’s complaint at Stage 1 of its complaints procedure. It said:
• it accepted it had delayed in carrying out an EHC needs assessment;
• its standard of communication with Miss X had been poor; and
• it would amend the EHC Plan once it identified a school placement.
49. Miss X escalated her complaint to Stage 2. The Council then secured D a place at School Q and issued an amended EHC Plan in late-October 2023, naming School Q. D started attending School Q in early-November 2023.
50. The Council issued its final response to Miss X’s complaint in late-November 2023. It apologised for the delays, and for the fact it had failed to apologise in its Stage 1 complaint response. Miss X then brought her complaint to the Ombudsman.

My findings

Complaint 1b: EHC assessment delays

51. We can look at delays in the EHC needs assessment process. We expect councils to follow statutory timescales set out in the Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
52. Following the Council’s decision to concede Miss X’s appeal and carry out an EHC needs assessment, it should have issued the final EHC Plan within 14 weeks, by 9 January 2023. It did not issue the Plan until 16 June 2023, a delay of 23 weeks, which was fault.
53. I accept D was too unwell to engage with an EP assessment for a month from late-January to late-February 2023. However, I do not consider this changed anything; there would have been significant delays by the Council regardless. If the Council had met statutory timescales, it should have completed its assessment and finalised the EHC Plan by early-January 2023, before D became too unwell to engage. The Council did not start the assessment process and seek EP advice until late-December 2022, 11 weeks after it conceded the appeal. Once it received the EP advice at the end of March 2023, the Council then took a further 12 weeks to issue a final Plan. These delays by the Council were fault.
54. On the balance of probabilities, I find that if the Council had acted within statutory timescales, D’s June 2023 EHC Plan would have been in place from early-January 2023. Therefore because of the Council’s delays, D missed the benefit of the SEN provision set out in the June 2023 Plan from January 2023 onwards. The Council should remedy the injustice caused. The delays also frustrated Miss X’s right to appeal about the content of the Plan to the SEND Tribunal, and the Council should remedy the distress this caused.

Complaint 1c: Alternative education while out of school

55. The Council knew D was going to be out of school for 15 days or more, with no education in place, from March 2023. Therefore, it should have immediately considered its duty to arrange suitable alternative education under section 19 of The Education Act 1996. I am not satisfied the Council gave this due consideration.
56. D stopped attending a mainstream school in March 2023. This was an independent (private) school. In response to my enquiries, the Council said it was Miss X’s decision to withdraw D from the school, and that she did not make an application for another school place following this. It therefore recorded D as EHE (Electively Home Educated). However, at the point D was withdrawn from a private school, the Council should have decided either:
• D was well enough to attend a school setting, in which case it should have found another school place as soon as possible, and considered its duty to provide alternative education in the meantime;
• D was too unwell to attend any school, in which case it should have considered its duty to provide alternative education; or
• D was EHE, in which case it should have enquired about what education was being provided to D at home, and assured itself this was suitable.
57. The Council accepted a referral for D to its Medical Needs and Hospital Education Service (MNHES) in March 2023. This is for children who cannot attend school because of illness or health needs. Therefore, it appears the Council initially accepted D was too unwell to attend any school. Miss X repeatedly told the Council she would not be educating D at home, and at the time it took no steps to enquire about any education D may be receiving at home. Therefore, my view is at the time the Council did not consider D was being Electively Home Educated. Therefore, it should not have recorded them as such. This unclear record keeping was fault, which meant the Council provided confusing information to Miss X, and continuously failed to recognise it should consider its section 19 duty to provide alternative education.
58. In May 2023, when D had been out of school for two months, they attended one hour of alternative educational provision at the MNHES. Miss X had made a referral to the service herself when recommended to by the Educational Psychologist, by providing a letter from D’s GP. Miss X’s view was this service was not suitable for D's needs, so they did not attend again.
59. From June 2023 the Council told Miss X it was consulting schools to be named in D’s EHC Plan. When the Council issued D’s final EHC Plan in June 2023, it told Miss X it had not found a suitable school placement for D, so would name only the type of school in the Plan, i.e., mainstream or specialist. It then did not name a school type in the Plan. From the Council’s records it is not clear what the Council’s position was about whether D needed a special school.
60. In July 2023, D should have been at the end of year 7 and was still out of school. The Council’s MNES service contacted Miss X to offer its services again. Miss X said she did not think it was suitable for D. A week later, Miss X instructed a solicitor to correspond with the Council on her behalf. The Council suggested D should access the MNHES but Miss X and her solicitor disputed this. Miss X said D had tried the MNHES before and it was not suitable. She also wanted a permanent package of EOTAS for D. She was concerned the MNHES was only a temporary solution which would not solve the longer-term problem of the Council not having identified a suitable school setting for D. The Council told Miss X it would come back to her about this in September 2023 at the start of the new school year, but before it had done so she made her complaint. During the complaint Miss X then asked the Council to secure a place at School Q, which it did from November 2023.
61. In response to my enquiries, the Council said it offered Miss X the MNHES service, which was suitable for D, but she refused this. However, based on the records available I do not agree the Council properly considered whether this was suitable at the time. It did not record that it considered MNHES to be suitable for D’s age, ability, aptitude, and SEN. It did not record the Council’s view about whether there was suitable education available which was accessible to D, or what steps it considered it should take when Miss X declined the service. Therefore, I cannot be satisfied it properly considered its section 19 duty. This was fault.
62. As explained at paragraphs 24 to 28, there are limits to our investigations where there is a right to appeal to the SEND Tribunal about a final EHC Plan. The Council issued a final Plan in June 2023, at which point Miss X had the right to appeal to the Tribunal. Miss X appealed in September 2023. We cannot investigate any matter which has been appealed or is connected to an appeal. Part of Miss X’s appeal was about the Council’s failure to name a suitable school setting (or EOTAS package) in the Plan. D’s missed education is connected to the issue Miss X appealed. Therefore, I cannot investigate, or recommend a remedy for, any lack of alternative education from the point the Council issued the final amended EHC Plan on 16 June 2023.
63. Therefore, the Council should remedy the injustice caused to D by missed education from March 2023 (when it became aware D was out of school), to June 2023 (when the appeal right arose). This is 1 term of education. The Council should also provide a remedy for the distress caused to Miss X by its failure to consider its section 19 duty to D.

Complaint 1e: Delivery of final EHC plan

64. After the Council issued a final EHC Plan in June 2023, it had a duty to immediately ensure D received the provision set out in their Plan, as far as possible outside a school setting.
65. The provision set out in D’s EHC Plan included:
• a 1:1 psychoeducation programme delivered once a week to explore emotions and anxiety, plus small group interventions twice a week to develop self-awareness and emotional regulation;
• direct intervention twice a week to help D improve how they record their schoolwork, for example, touch typing sessions;
• 1:1 literacy intervention five times a week for 20 minutes;
• a daily 1:1 check-in with a familiar adult to discuss feelings, review topics, embed learning, and reflect on progress and success; and
• 19 hours a week of extra adult support delivered through 1:1 and small groups, to support D to access the curriculum, interventions, and strategies listed in the Plan.
66. Once the Council issued the June 2023 final Plan, it took no steps to arrange the provision, or to consider how far it was possible to do so given D’s circumstances while not attending school. This was fault.
67. The Council should separately remedy the injustice of the SEN provision D missed because it did not meet its duty to deliver the final EHC Plan before D started at School Q. As it delayed in issuing the Plan by 23 weeks, it should remedy this from the point it should have issued the Plan, the start of January 2023. The Council should also provide a remedy for the distress caused to Miss X by its failure to deliver D’s SEN support.

Complaint 1f: Communication and complaint handling

68. The Council accepted fault in that it had communicated poorly with Miss X. It upheld this part of her complaint and said it had recruited more staff to address this.
69. The Council’s failure to communicate with Miss X properly caused her distress and frustration, for which it should provide a remedy. The Council apologised to Miss X in its final complaint response but failed to recognise it should apologise in its Stage 1 complaint response, which was fault. I also do not consider an apology is enough; my view is it should provide a financial remedy.

Complaint 1h: Discrimination and The Equality Act

70. Miss X said she felt the Council discriminated against D in its actions. She said:
• it had failed to give due care and consideration to D’s right to education as a child with SEN; and
• D did not get the education they needed which she believes is discriminatory.
71. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance 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.
72. 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. 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.
73. We cannot decide if an organisation has breached the Equality Act, or whether it has discriminated against an individual in its treatment of them. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
74. I do not find fault with how the Council considered its duties to D under the Equality Act. It took too long to issue an EHC Plan and find a school placement. The Council was at fault for delay. However, it does not follow from this fault that the Council failed to consider D’s disability and individual circumstances.

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Agreed action

75. Miss X told me she paid for maths and English tuition for D herself while they were out of school and provided a breakdown of these costs. I cannot say, even on the balance of probabilities, what the Council would have decided had it properly considered its section 19 duties. Therefore, I cannot recommend the Council should repay Miss X for the money spent. I can only recommend a symbolic payment to recognise the injustice caused by the Council’s failings, in line with our guidance on remedies. This says:
• 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; and
• in addition to educational provision, we recommend additional remedies for loss of SEN support such as direct therapies and interventions. 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.
76. In deciding a suitable financial payment to recognise the education and SEN support D missed, I considered the following.
• D was in years 7 and 8 for the period I have considered. As set out in our guidance on remedies, we consider the first year of secondary school to be one of the most significant periods in a child’s school career.
• On the balance of probabilities, I consider D would have been able to engage with education equivalent to full time had this been available to them from the start in a format that was suitable. D did not receive any education at all while out of school, other than around one hour a week of maths and English tuition arranged by Miss X.
• Once D’s final EHC Plan was in place, they did not receive any of the interventions specified in the Plan until they started at School Q in November 2023.
77. Based on these factors, I decided the Council should provide a remedy of:
• £2,100 per term for the 1 term of education D missed from March to June 2023; and
• £300 per term for the 2.5 terms of SEN support D missed from January to November 2023.
78. Within one month of our final decision the Council will:
1. apologise to Miss X for the impact of the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology; and
2. pay the family a total of £3,450, comprising of:
1. £2,850 to recognise the education and SEN support D missed. This is intended for D’s future educational benefit;
2. £400 to recognise the avoidable distress caused to Miss X by the Council’s failings; and
3. £200 to recognise the avoidable distress to D.
79. Within three months of our final decision the Council will:
1. review the faults identified in this case and produce an action plan for steps it will take to ensure it:
1. carries out EHC needs assessments within statutory timescales, including where it concedes a SEND Tribunal appeal about its decision not to carry out an assessment;
2. properly considers its section 19 duty to provide alternative education as soon as it is aware a child is out of school, properly records its considerations, and keeps arrangements under review;
3. meets its duty to immediately secure the SEN provision in a final EHC Plan. This includes proper consideration of to what extent it can deliver the Plan where a child is out of school; and
4. communicates properly with SEND families where they raise concerns and queries, and responds in good time.
2. issue a reminder to staff that respond to complaints about SEND, about the importance of apologising to complainants where the Council accepts fault.
80. The Council will provide us with evidence it has complied with the above actions.

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Final decision

81. I have completed my investigation. There was fault by the Council which caused D to miss education and SEN support. It also caused avoidable distress to D and Miss X. The Council agreed to our recommendations to remedy this injustice, produce an action plan to address the faults identified in this case, 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