Summary: Mr X and Ms Y complained the Council failed to ensure their child D received a suitable alternative education while out of school or had their special educational needs met. There was fault in how the Council reviewed D’s Education Health and Care plan, re-assessed their Education Health and Care needs, and considered its duties to provide suitable alternative education. This meant D missed education and support for their special educational needs. This also caused avoidable distress for D, Mr X, and Ms Y. The Council agreed to apologise, issue an amended final Education Health and Care plan without delay, pay a financial remedy, review relevant procedures, and issue reminders to its staff.

The complaint

1. Mr X and Ms Y complain about the Council’s review of their child D’s special educational needs (SEN) from 2020 onwards. They also say it failed to communicate with them properly, or provide suitable alternative education when D could not attend school during this period. Because of this they say:
• D lost three years of education and SEN support, had no social interaction with other children, and became anxious and reclusive;
• Mr X had to give up work to look after D which has impacted the family financially; and
• Mr X and Ms Y spent time and trouble chasing the Council while looking after D and their sibling who is also disabled, and experienced stress and frustration which affected their mental wellbeing.
2. Mr X and Ms Y want the Council to:
• properly review D’s needs and issue a new Education Health and Care (EHC) plan naming a suitable school;
• arrange suitable alternative education for D while they are out of school and awaiting a placement;
• respond properly to communications from the family; and
• provide financial compensation.

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What I have and have not investigated

3. Mr X and Ms Y complained about the Council’s actions from January 2020 onwards, when D stopped attending school. The law says we cannot investigate events which happened more than 12 months before somebody complains to us, unless we decide there are good reasons to do so. Mr X and Ms Y complained to the Council in June 2022 and brought their complaint to the Ombudsman in October 2022. The Council issued D’s first EHC plan in December 2020. Mr X and Ms Y did not complain before this about any delays in the EHC plan process, or about D being out of school with no alternative education in place. I am satisfied they could have complained about events before the December 2020 EHC plan earlier and there are no good reasons to investigate those earlier events now.
4. However, I decided there were good reasons to investigate what happened after the December 2020 EHC plan was issued. It took Mr X and Ms Y longer to complain due to the Council’s actions and delays. The family also had difficult personal circumstances which meant it took them longer to complain.
5. The law says we cannot normally investigate complaints where someone could have appealed to a tribunal, unless we decide there are good reasons why they did not appeal. The First-tier Tribunal (Special Educational Needs and Disability) is an independent expert body whose decisions are binding on the Council. Only the SEND Tribunal can direct changes to the education sections of an EHC plan or name a different school in the plan. If we decide there are good reasons, we can consider the other sections of an EHC plan.
6. Mr X and Ms Y could have appealed to the SEND Tribunal about the content of the December 2020 EHC plan and did not do so. When the Council issued the plan, it told Mr X and Ms Y it was only issuing a final plan to meet statutory timescales. It said this did not mean further changes could not be made and it would arrange a meeting to discuss changes. Based on what the Council told Mr X and Ms Y I consider it was reasonable they did not appeal the plan to the SEND Tribunal. Therefore, I have considered how the Council carried out its EHC plan process from this point. However, I have not considered the content of the December 2020 plan and whether this was suitable for D. Since then, the Council has issued a further final plan and decided it should re-assess D’s needs. I do not consider I could achieve anything further by looking at the content of the December 2020 plan in more detail. This would not be an efficient use of our resources as a publicly funded body.
7. The Council issued a reviewed final EHC plan for D in November 2022, after Mr X and Ms Y came to the Ombudsman. As of mid-May 2022, the family were appealing the content of that plan to the SEND Tribunal. The law says we cannot investigate an issue which has already been the subject of a tribunal appeal. Therefore, although I accept there are ongoing issues with D’s EHC plan, I cannot consider the content of the latest November 2022 plan.

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The Ombudsman’s role and powers

8. 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)
9. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. There may be circumstances where we decide 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)
10. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
11. 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)
12. 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. If someone has already exercised their right to appeal to a tribunal, we cannot investigate. (Local Government Act 1974, section 26(6)(a), as amended)
13. 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.
14. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
15. 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

16. I considered:
• information provided by Mr X and Ms Y, and discussed the complaint with Ms Y;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
17. Mr X, Ms Y, and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
18. 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

Education Health and Care (EHC) plans

19. 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.
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, 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.
21. We can look at complaints where support set out in the EHC plan has not been provided, or where there have been delays in the process.
22. A child with an EHC plan must be educated in a mainstream school unless to do so is incompatible with:
• the wishes of the child’s parent(s)/ guardian(s); or
• the provision of efficient education for others, and there are no “reasonable steps” that could be taken to prevent this.

(Children and Families Act 2014 section 33, SEND Code paragraphs 9.88 to 9.94)

23. When a child’s parent(s)/guardian(s) ask for a particular school or other institution to be named in their EHC plan, the council has a “conditional duty” to do so for most types of school/ institution i.e., all those listed in section 38(3) of the Children and Families Act 2014. This means the council must consult the requested school/ institution, and name it in the plan unless:
• it is unsuitable for the child’s age, ability, aptitude, or special educational needs; or
• the child’s attendance there would be incompatible with the provision of efficient education for others, or the efficient use of resources.

(Children and Families Act 2014 section 39, SEND Code paragraphs 9.78 to 9.80)

24. When a council names a school or other institution in a child’s final EHC plan, the school/ institution has a duty to admit the child. (Children and Families Act 2014 section 43)

EHC plan reviews

25. 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)
26. 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)
27. Within four weeks of a review meeting, a council must notify the child’s parent(s)/ guardian(s) of its decision to maintain, amend or discontinue the EHC plan. (SEND Regulations 2014 Section 20(10), and SEND Code paragraph 9.176)
28. Where a council proposes to amend an EHC plan, it should start the process of amendment “without delay”. The law says it must send the child’s parent(s)/guardian(s) 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. (SEND Regulations 2014 Section 22(2), and SEND Code paragraphs 9.176 and 9.194)
29. Following comments from the child’s parent(s)/guardian(s), 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 parent(s)/guardian(s). (SEND Regulations 2014 Section 22(3), and SEND Code paragraph 9.196)

EHC plan re-assessments

30. There may be occasions when not just a review, but a re-assessment of the child’s EHC needs becomes appropriate, particularly when their needs change significantly. Councils must normally arrange a re-assessment if a child’s family or school requests this. A council may also decide to arrange a re-assessment without a request, if it thinks one is necessary. (SEND Code paragraphs 9.186 and 9.187)
31. Once a council has decided to re-assess, the process for re-assessment is the same as the process for a first EHC needs assessment. The overall maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC plan. However, the Council must aim to complete the process as soon as practicable. (SEND Code paragraphs 9.191 and 9.192)

Appealing the content of an amended EHC plan

32. 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. Parent(s)/guardian(s) 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 amended EHC plan. The right of appeal is only engaged when the Council issues the final amended plan. (SEND Regulations 2014 section 32)

Alternative educational provision for a child out of school

33. 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. We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19)
34. 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)
35. The relevant statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs, January 2013’ says councils should provide education to those out of school as soon as it is clear they will be away from school for 15 days or more, whether consecutive or cumulative. Councils should have regard to statutory guidance and only depart from it where there are good reasons.
36. 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))
37. The education provided by a 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)
38. 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. (2013 Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

The Human Rights Act

39. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act requires all councils, and other bodies carrying out public functions, to respect and protect individuals’ rights.
40. The First Protocol, Article 2 of the Human Rights Act says every person is entitled to an effective education.
41. Our remit does not extend to making decisions on whether or not a council has breached the Human Rights Act – this can only be done by the courts. But we can decide whether a council has had due regard to an individual’s human rights in its treatment of them, as part of our consideration of a complaint. In practical terms, councils will often be able to show they have complied with the Human Rights Act if they can:
• show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.

What happened

42. In November 2019, the Council agreed to carry out an EHC needs assessment for D. They were struggling with attendance and stopped attending their mainstream school altogether in January 2020, during Year 1 of primary school.
43. In September 2020, at the start of Year 2, D was still out of school. They began receiving support from the Council’s Education Support for Medical Absence (ESMA) service. ESMA is a teaching service provided by the Council for children who cannot attend school for medical reasons. It offers support in English, mathematics, and science and aims to support children to go back into school as soon as they are well enough to do so.
44. In December 2020, the Council issued D with their first final EHC plan. It told Mr X and Ms Y it was only issuing a final plan to meet statutory timescales and they could still ask for changes to the plan.
45. At the end of January 2021, ESMA stopped providing support to D because they were no longer accessing NHS support so it decided their school should support them instead. Around the same time the Council met with Mr X and Ms Y to discuss the EHC plan. Mr X and Ms Y thought this was an EHC plan review meeting. The Council told us it was not a review. I consider it reasonable Mr X and Ms Y thought it was a review meeting. The Council had accepted when issuing the December 2020 plan that changes were needed and said the meeting it was arranging was to discuss changes to the plan.
46. Four months later, Mr X and Ms Y asked the Council for an update on amending the plan. They said they had chased the Council several times since the February meeting but had no response. The Council asked D’s school to hold an emergency review so the plan could be updated and told the family it would let them know the date of the review. The Council planned to take the draft reviewed plan to its SEN panel to seek approval for a special school to be named in the plan.
47. Three months later, at the start of Year 3, D was still out of school. Their school arranged an EHCP review meeting in early-November 2021. The Council then consulted a special school, School B, which Mr X and Ms Y had expressed a preference for, to be named in the plan. School B said it had no places available but could consider new requests for the following 2022/23 school year. At the end of November 2021, D started receiving support from the Council’s ESMA service again.
48. In January 2022, the Council created a draft amended EHC plan following the November 2021 review. It accepts it failed to send this to Mr X and Ms Y, or D’s school, due to an administrative error. The following month it sent this draft plan to School B to consult them on being named in the plan. It wrongly requested a residential placement at the school instead of a day placement. School B said it could not be named in the plan as it could not meet D’s needs.
49. In June 2022, Mr X and Ms Y complained to the Council. The Council realised it had not sent them D’s January 2022 draft amended EHC plan so sent this. It also realised it had mistakenly consulted School B as a residential placement so sent a day-placement consultation instead. School B still said it could not meet D’s needs. The Council then considered D’s case at its SEN panel. The panel decided D should not be placed in a Learning Disability school, but identified another type of special school to be consulted to be named in the plan.
50. Five weeks after complaining, Mr X and Ms Y had not received a response from the Council, so escalated their complaint to Stage 2 of its complaints procedure. Around the same time, the ESMA service stopped providing support to D. It said they could not access the service due to a lack of up-to-date medical evidence for being out of school. Around this time D started receiving support once a week from Organisation F, which offers therapeutic support through engagement with animals to children with emotional or physical additional needs. This was arranged by Mr X and Ms Y and funded by D’s school.
51. In early August 2022, the Council held an ‘out of school panel meeting’ about D. It decided it should carry out a re-assessment of D’s EHC needs and agreed to arrange further professional assessments to support this.
52. In September 2022, at the start of Year 4, D was still out of school. The Council responded to Mr X and Ms Y’s complaint and said it had been upheld. It said D’s mainstream school would hold an annual EHC plan review in four days and the Council was looking to consult with other schools to be named in the plan. It also said it had requested various assessments and advice to ensure D’s plan reflected their needs.
53. One month later, the Council’s ESMA service offered Mr X and Ms Y three options of alternative education for D. The family expressed concerns about the options offered and asked for a different type of support. Around the same time, the Council proposed to Mr X and Ms Y to name School C, a special school, in D’s EHC plan for the following 2023/24 school year. They responded to agree to this. Shortly afterwards they brought their complaint to the Ombudsman.
54. In November 2022, the Council told Mr X and Ms Y School C would be named in the plan for the 2023/24 school year. It said it had consulted School B again at the parent’s request, but it could not meet D’s needs. The following day it issued a final amended EHC plan for D, one year after the last EHC plan review meeting. This was D’s first final plan in two years. The November 2022 plan still named their mainstream school as their current placement, and named School C for September 2023 onwards.
55. In mid-December 2022, D started receiving private tutoring for one hour per week, and 30 minutes support once a week from Organisation G, which offers activities with animals to disabled children and adults. This was arranged by Mr X and Ms Y and funded by D’s mainstream school. They were also still receiving the support from Organisation F which began in June 2022, which had been increased from once to twice a week in September 2022.
56. As of mid-May 2023, D was still out of school. The Council had not completed its re-assessment of D’s EHC needs it decided was necessary in August 2022. D’s latest final plan was issued November 2022, but this was not informed by the re-assessments the Council had already decided were necessary. The Council said it was still waiting for the assessments it had commissioned and did not provide a timescale for when it would complete the EHC needs re-assessment.

My findings

EHC plan review and re-assessment process from December 2020 onwards

57. When the Council issued the December 2020 EHC plan, it accepted changes were needed and said it would arrange a meeting to discuss changes to the plan. I therefore consider the Council accepted the December 2020 EHC plan was not suitable for D. As it accepted it was not suitable, it should have sought to amend it without delay. Instead, it caused delays and failed to meet statutory deadlines for the EHC plan review process set out at paragraphs 25 to 29. This was fault.
58. The Council decided in early-August 2022 it should carry out an EHC needs re-assessment for D. As described at paragraph 31, it should have issued a final plan within 14 weeks of this decision to re-assess. As of mid-May 2023, over 41 weeks later, it had still not completed its re-assessment and issued an updated final plan. The Council provided no timescale for when it intends to complete the reassessment. The Council said it had considered commissioning the assessments it needed privately, but no providers had capacity. However, it provided no evidence of its efforts to commission private assessments. I am not satisfied the Council made enough effort to seek alternative options to get the advice and information it needed to complete the reassessment. This was fault.
59. The Council’s failure to meet statutory deadlines was fault. As a result, the only EHC plans D has ever had in place are:
• the December 2020 plan, which the Council accepted was not suitable when it issued it; and
• the November 2022 plan, which I consider the Council also accepted was not suitable because it was not informed by the re-assessments it had already decided were necessary. It only issued this plan because Mr X and Ms Y came to the Ombudsman.
60. Therefore, because of fault by the Council, D has never had a suitable EHC plan in place, since the Council first decided it should issue one in October 2020. The evidence shows D’s parents chased the Council many times about their EHC plan and the Council did not properly respond and caused significant delays. D’s school also expressed its frustration about the lack of responsiveness from the Council. This caused avoidable distress to D and their parents. There also remains uncertainty for the family about whether D has been without support they need because a suitable EHC plan has never been in place. I consider this uncertainty also caused them distress.
61. After Mr X and Ms Y came to the Ombudsman, the Council told us in response to another case (22004357), that it only had two officers working in its SEN service, which had caused delays. It said it was training new officers and had over 2,000 EHC plan emails to get through. Although this explains the reasons for the delay, this service failure is still fault which caused the family injustice. The Council should remedy the injustice caused.

Alternative education while D was out of school

62. In June 2021 the Council recorded it planned to take D’s case to its SEN panel to seek approval for a special school to be named in the plan. When the panel eventually considered the case in November 2021 it decided a special school should be named. Also, D’s mainstream school repeatedly told the Council it was of the view D would never re-engage or return to the school and felt it should not be responsible for reviewing the plan.
63. The Council delayed taking any action after the February 2021 meeting despite chasing from Mr X and Ms Y. Had the Council acted without delay after the February 2021 meeting, I consider it would have decided to seek approval for a special school to be named in the plan much sooner. It would have accepted shortly afterwards that D’s mainstream school was not suitable, and a special school should be named instead. Therefore, it would have accepted there was no education available which was “reasonably practicable” for D to access, as described at paragraph 34.
64. A council must arrange suitable alternative education when a child is out of school for 15 days or more, for any reason. The Council knew D was out of school and was providing access to its ESMA service until the end of January 2021, so my view is it accepted D was out of school with valid medical reasons. Had the Council considered D’s mainstream school was suitable and “reasonably practicable” for them to access, I would have expected it to require D to attend, as it had powers to do so. It did not do this at any stage.
65. D was out of school from January 2020 onwards, and as of mid-May 2023 was still out of school. As explained at paragraphs 3 and 4, I have only considered what happened after the December 2020 EHC plan was issued. Therefore, I have only considered the Council’s duty to provide D with an alternative education while out of school from December 2020 onwards.
66. I consider D had suitable alternative education in place for the following periods:
• from mid-December 2020 to the end of January 2021, and the end of November 2021 to mid-July 2022, D received support from the Council’s ESMA service. The ESMA service carried out reviews every six weeks to assure itself of the suitability of this offer for D. It gradually increased the support and added face-to-face sessions to suit their needs; and
• from mid-December 2022 onwards D began receiving support from a private tutor, arranged by Mr X and Ms Y.
67. However, I am not satisfied D had any suitable alternative education in place for the following periods:
• the end of January to the end of November 2021; and
• mid-July to mid-December 2022.
68. The Council had a duty to ensure D had suitable alternative education in place. Its failure to do so for the above periods, was fault.
69. I also considered the support provided to D by Organisation F from June 2022 onwards, and Organisation G from December 2022 onwards. Organisation F provided therapeutic support, and Organisation G provided non-educational activities. I am not satisfied either of these services provided D with an alternative education. There was no evidence the Council considered the suitability of Organisation F or Organisation G for meeting D’s educational needs.
70. D’s mainstream school also tried to send work home for D to complete at various times but said D would not engage with this. It told the Council several times it did not know if the work was suitable for D’s needs due to the length of time they had been out of school. D’s school also tried to arrange tutoring for D but repeatedly told the Council it could not find tutoring within the required budget that met D’s needs. The Council did not properly consider or respond to the school’s requests for help with this.
71. The Council’s failure to consider its duties meant D missed a significant period of education, and support for their SEN. My view is this caused distress to D and their parents. The Council should act to remedy the injustice caused. On the balance of probabilities, my view is delays by the Council in the EHC plan process meant D missed education for a longer period than they would have had it been progressed without delay. Both D’s family and D’s mainstream school were of this view and made this clear to the Council. The Council should remedy the distress caused by this to D and their parents.

Joint working between Council teams

72. The evidence showed the issues in progressing D’s EHC plan and ensuring suitable alternative education was in place were exacerbated by poor communication between different Council teams. The Council’s ESMA service repeatedly asked Mr X and Ms Y to keep it updated about progress with D’s EHC plan, and asked D’s school to provide it with information about the plan, instead of communicating with the SEND service to resolve issues directly. There was also evidence of poor communication between the SEND team and the Council’s attendance monitoring team. This lack of proper communication across the Council, was fault. The Council should act to remedy the injustice caused to the family by its faults.

The Human Rights Act

73. I am not satisfied the Council had due regard to D’s human rights under The First Protocol, Article 2, which entitles them to an effective education. It did not properly meet its duties to ensure they had an effective education in place. It did not properly consider the impact its decisions would have on them. This was fault.

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Agreed action

74. 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 £800 to £2,000 a term to recognise the impact of that loss. There was no evidence D was provided any education at all from the end of January to the end of November 2021, and from mid-July to mid-December 2022.
75. In deciding an appropriate financial payment to recognise the impact of D’s missed education, I considered that during these periods of missed education, D was in years 2, 3 and 4 of primary school. They had not been in full-time education since the start of year 1. This was a particularly significant period in D’s school career. They also were not receiving the provision set out in their latest EHC plan while out of school. However, the evidence shows D would not have been able to engage with full-time education, had it been available to them. I therefore considered how much alternative education D engaged with when this was available. Based on this, for the period where no alternative education was in place at all, I consider a remedy of £1,000 for each term to be appropriate.
76. After Mr X and Ms Y came to the Ombudsman, the Council recently agreed our recommendations in another investigation (21012612) for it to review its procedures and issue reminders to its staff to ensure it:
• complies with its duty to arrange suitable alternative education for children who are out of school; and
• has effective processes in place for its SEND and ESMA services to work together.

We were satisfied based on evidence provided by the Council it completed these agreed actions. Therefore, we have not made any further recommendations for the Council to improve its services in relation to its alternative education duty.

77. Within one month of our final decision, the Council will:
1. apologise to D and their family for the faults identified and the impact of those faults;
2. complete its re-assessment of D’s needs and issue a final amended EHC plan for D, without delay;
3. pay the family a total of £5,100 comprising of:
1. £3,500 to recognise the 3.5 terms of education D missed while they were out of school, from the end of January to the end of November 2021, and from mid-July to mid-December 2022. This is intended for D’s future educational benefit;
2. £1,000 to recognise the avoidable distress caused to Mr X and Ms Y;
3. £300 to recognise the avoidable distress caused to D; and
4. £300 to recognise the uncertainty that remains for the family about the support D may have missed because a suitable EHC plan has never been in place.
78. Within three months of our final decision, the Council will:
1. review its procedures for EHC plans and issue reminders to relevant staff to ensure:
1. when reviewing EHC plans it does so without delay, and issues amendment notices and final amended plans within the correct statutory timescales following the review meeting;
2. when re-assessing EHC needs it issues a final amended plan as soon as is practicable, and within a maximum of 14 weeks from the decision to reassess;
3. when it requires professional assessments to inform the EHC plan process and there are delays, it properly considers whether it should commission private assessments to meet statutory timescales. It should keep records of this consideration and any attempts to commission private assessments; and
4. it keeps families updated, responds to their queries, and follows up on any agreed actions in good time.
2. provide an update to the Ombudsman about its progress with staffing its SEND service, training new officers, and clearing the email backlog within the service; and
3. review its process for responding to emails within its SEND service, to ensure that when staff members are absent or leave the Council’s employment, emails are responded to in good time by other appropriate staff.
79. The Council should provide us with evidence it has complied with the above actions.

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Final decision

80. I have completed my investigation. There was fault by the Council which caused D to miss education, and support for their special educational needs, and caused avoidable distress for D, Mr X, and Ms Y. The Council agreed to our recommendations to remedy this injustice, review relevant procedures, and issue reminders to its staff.

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Investigator's decision on behalf of the Ombudsman