Summary: Ms D complained the Council failed to arrange suitable full-time education or special educational needs provision for her son. We found fault which caused injustice to Ms D and F. The Council has agreed to apologise and make a payment to Ms D to remedy this.

The complaint

1. Ms D complained the Council failed to arrange suitable full-time education or SEN provision for her son, F, from 2017 to 2022. In particular that the Council:
1. Failed to arrange suitable full-time education, SEN provision, or alternative provision for her son from September 2020 to March 2022.
2. Failed to ensure the November 2020 emergency EHC plan review was completed.
3. Delayed finalising the 2021 EHC plan.
4. Failed to consult her preferred school in 2021.
5. Failed to name a school in the 2021 EHC plan.
6. Delayed issuing an amended final EHC plan after mediation in 2021.
7. Delayed completing paperwork once a place was confirmed causing F’s start date to be delayed to March 2022.
8. Did not advise her she could apply for mileage after she had to transport F due to lack of school transport in March 2022.
9. Did not provide her with information about appeal and complaints procedures and delayed responding to her complaint.
2. As a result, F has missed out on social, emotional and educational development, causing significant distress to him and his wider family, affecting their mental and physical health.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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.
6. 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.
7. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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)
9. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
10. 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)
11. 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 have and have not investigated

12. I have not investigated part (e). This is because the law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
13. 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) Ms D complained to the Council in August 2022 about a decision not to provide alternative provision which had been made in September 2020. In autumn 2020 and early 2021 there were reviews of the EHC plan. I consider it was reasonable for Ms D not to have complained whilst awaiting the outcome of those. She then raised the matter with her MP in summer 2021, so I consider it was reasonable for her to have been expecting that action would be taken on the complaint. My view is that to determine whether alternative provision should have been being made it was necessary to consider the Council’s’ decision making in September 2020 and that it was reasonable for Ms D not to have complained at the time. I have therefore exercised my discretion to investigate matters since September 2020. I have not investigated from 2017 to September 2020 as it would have been reasonable for Ms D to have complained at the time.

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How I considered this complaint

14. I spoke to Ms D about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice ("the Code")
• Statutory guidance “Ensuring a good education for children who cannot attend school because of health needs” 2013 (“the Guidance”).
15. Ms D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

16. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
17. A parent may request a particular school be named in the plan (including an independent school approved by the Secretary of State). The council must comply with that preference and name the school or college in the EHC plan unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources.
18. The council must also consider a request from a parent for an independent school that is not approved by the Secretary of State. The Code says the council:
• “must have regard to the general principle … that children should be educated in accordance with their parents’ wishes, so long as this is compatible with the provision of efficient instruction and training and does not mean unreasonable public expenditure.” and
• “should be satisfied that the institution would admit the child before naming it in a plan”. (SEND Code of Practice, para 9.84)
19. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued with a covering letter.
20. Parents must consider mediation before deciding to appeal. Where a council agrees in mediation to amend an EHC plan, it must amend the plan within five weeks of the mediation agreement being made, unless it has agreed different timescales. (Special Educational Needs and Disability Regulations 2014, sections 42 & 44)
21. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Arrangements for reviewing an EHC Plan

22. The Code says councils must review a child's EHC plan every 12 months. These annual reviews consider whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan.
23. Councils are responsible for ensuring annual reviews take place, but the Code says they can ask schools to convene them on their behalf. The school must prepare and send a report of the review meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan and should refer to any difference between the school’s recommendations and those of others attending the meeting.
24. Within four weeks of the review, councils must decide whether they propose to amend the plan and notify the young person of this decision. If they are amending, they must do so without delay and issue an amendment notice. They must then issue the final plan within eight weeks of the amendment notice.

Alternative educational provision

25. The Education Act 1996 says that if a child of compulsory school age cannot attend school for “reasons of illness, exclusion from school or otherwise” the local authority must make arrangements to provide suitable education either at school or elsewhere, such as at home. The duty applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend. (Education Act 1996, section 19(1))
26. The law does not specify when alternative educational provision should begin, but statutory guidance states local authorities should ensure pupils are placed as quickly as possible.
27. The duty to arrange alternative provision does not automatically apply simply because there is an expert opinion that says the child is unfit to attend school. This is because the council may have a rational ground to disregard that opinion, having considered it. The council is the decision-maker in this situation.
28. When a child refuses to attend school or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. If not, it needs to decide how many hours of what type of education it should provide. If the council offers a child less than full-time education, it must regularly review the situation.
29. 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) Another case (R(R) v Kent County Council [2007] EWHC 2135 (Admin)) established how an education authority’s duty to offer alternative education is determined where the reason for absence is “other” rather than illness or exclusion. This stated the duty is determined by “the objective consideration of whether the education offered is reasonably possible or reasonably practical to be accessed by the child in question…”
30. The section 19 duty does not apply simply because a parent refuses to send a child to the educational provision. A judicial decision (R (on the application of G) v Westminster Council [2004] EWCA Civ 45) says that the education offered, regardless of its rejection by the parent, must have been “reasonably available and accessible” to the child. It also says that where a pupil is not attending school and remains on the school's roll, the pupil may be entitled to interim educational provision when it is not reasonably possible for the pupil to attend the school and where the cause of the pupil's non-attendance is unavoidable.
31. If a council is not satisfied that parents are providing a suitable education, they can serve a notice on the parent and issue a School Attendance Order. Where a council chooses enforcement, it has no parallel duty to make alternative out-of-school provision for the child in question. This is because the child has a place at school and there is no good reason for them not attending.
32. Our Focus Report, Out of school…out of mind?, gives guidance on how we expect local authorities to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. It says councils should:
• consider the individual circumstances of each case and be aware that, potentially, it may need to act whatever the reason for absence (with the exception of 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 in coming to decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Medical evidence

33. Where schools accept that a pupil is ill, they must authorise the absence. Schools may seek evidence about a child's medical condition but do not have to wait for a formal diagnosis before providing support to pupils.
34. The Guidance says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
35. The Courts have found that it is a judgment 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] EWHC 2916 (Admin))

School transport - SEND

36. If only one school is named in a young person’s EHC plan, then that is the school the council has determined is the nearest suitable school for the child. Where the child is attending the nearest suitable school, they will qualify for free transport, provided any other relevant conditions are met.

Complaint handling

37. The Council’s corporate complaints procedure says it aims to respond to a complaint within 20 working days of date of receipt.

What happened

38. I have set out the key events. This is not meant to detail everything that happened or all the correspondence between Ms D and the Council.

Background

39. Ms D’s son, F, has a diagnosis of autism with demand avoidance. He has bowel problems related to this that have needed medical intervention.
40. F had been struggling to attend his mainstream primary school (“the School”) since he started in 2017. In 2019 the Council involved its education welfare officer as F’s absences were not being authorised by the School. In January 2020 Ms D gave the Council letters from a GP, clinical psychologist and a bowel nurse. These said that F should not be forced to attend school as this was detrimental to his anxiety and wellbeing. The School authorised F’s absences in March 2020 and asked the GP to contribute to a referral for medical alternative provision, as the bowel nurse and children’s mental health service (CAMHS) did not feel they had the authority to complete the referral. The Council referred F to its medical alternative provision.
41. In March 2020 a final EHC plan was issued which named the School. The first national COVID-19 lockdown then started and schools were closed to most pupils. Online learning was offered. F did not attend school; Ms D says the family was shielding. In the academic year 2019/20 F’s attendance was 36.8%.

Decision that F was not eligible for alternative provision, September 2020

42. The Council’s medical panel refused F’s application for medical provision. It said that F’s issues were behavioural and not medical. The Council said there was no medical consultant evidence or CAMHS advice supporting F’s absence from school.
43. In October 2020 the bowel service discharged F. The letter says it would continue to provide medication but for F to make progress “he will need to have significant input regarding his anxiety which does not fall within our bladder and bowel care remit…”. CAMHS did not accept F’s referral; it said he had unmet SEND needs. The School stopped authorising F’s absences.

Emergency annual review, November 2020

44. Ms D requested an emergency annual review and this was held in November 2020. The School did not submit a report of the review to the Council as the professionals had been unable to input their views on the Council’s EHC plan IT system (the Hub).
45. The lack of a report from the school meant the Council made no decision after the review whether to amend F’s EHC plan.
46. The School agreed to provide a mentor for F to help him reintegrate into school, but these sessions came to an end in January 2021 as the funding ended. The Council allocated a new education welfare officer to the School.

Annual review, April 2021

47. The annual review was held on 21 April 2021, the education welfare officer attended. All professionals agreed that a specialist placement was needed for F and that further assessment and consultation was not needed. The School submitted the report of the review to the Council on 4 May 2021. Review attendees suggested that an independent special school for children with autism and social, emotional and mental health needs (“School X”) may be suitable for F.
48. The education welfare officer advised the Council that F’s lack of attendance was a SEND issue, as he had social, emotional and mental health needs that the School could not meet. She considered that legal action against Ms D was not appropriate as a specialist placement had been requested. On 26 May 2021, the Council sent a decision to amend the EHC plan to Ms D.
49. During the summer Ms D wrote to her MP about the fact that the draft EHC plan had not yet been issued. The Council said there was insufficient evidence that F required a specialist placement and that School X was full. F’s attendance in 2020/21 was 6.3%.

EHC Plan, September 2021

50. A draft EHC plan was issued on 11 August 2021. Ms D says the Council then refused to consult School X on the grounds it was full.
51. The Council replied to Ms D’s MP that it had not received the November 2020 annual review report until 4 May 2021. It had shared its proposed amendments on 11 August and aimed to issue a final EHC plan by 6 September.
52. The final plan was issued on 6 September, addressed to F’s father who Ms D is separated from, but it was not sent to Ms D. The plan did not name a school. An amended final plan addressed to Ms D and naming the School was issued on 16 September 2021. At this point, Ms D could appeal to Tribunal.

Mediation, October 2021

53. Ms D went to mediation. On 27 October 2021 the Council agreed to issue a revised EHC plan incorporating advice from the educational psychologist. It also agreed to fund transitional learning sessions for F to help him reintegrate into school.
54. These sessions started in December 2021, but they were ended in January 2022 as F was not able to engage.
55. F was by now no longer attending the School at all. The Council’s complaint response says none of F’s absences (other than during lockdowns) were authorised by the School.

Draft EHC plan, December 2021 and starting at School X

56. Following mediation, the Council received the educational psychologist’s advice on 6 December 2021. This said F needed a specialist placement. The Council issued a draft EHC plan on 7 December 2021. It consulted School X which confirmed on 14 December 2021 it could offer a place to F.
57. The Council’s panel agreed F could attend School X on 26 January 2022. The Council sent School X the contract on 10 February 2022. F started at School X on 9 March 2022.

School transport 2022

58. Ms D emailed the Council’s school transport team on 29 April 2022. She said the SEND team had advised her there was a long waiting list for school transport so she had agreed to transport F, who anyway would be unlikely to access a taxi. The Council offered Ms D a fuel allowance starting from 29 April 2022.
59. A final EHC plan naming School X was issued on 4 May 2022. An annual review followed and the Council agreed to amend the plan as F would now be transitioning to secondary school.

Ms D’s complaint

60. Ms D complained to the Council. On 26 October 2022 the Council sent a statement of complaint to Ms D. It responded on 28 November 2022. The response says the Council had received Ms D’s complaint on 10 October.
61. The Council apologised for delays in issuing the EHC plan and poor communications with Ms D. It said:
1. There was no medical consultant evidence or CAMHS advice supporting F’s absence from school.
2. The education welfare officer had attended a number of team around the family (TAF) meetings to discuss ways of reintegrating F back into school.
3. The School had a reintegration plan but F started coming in even later. The School therefore decided to stop this plan.
4. F’s absences were coded by the School as unauthorised, except during the COVID-19 lockdown.
5. Professionals in the TAF meetings (including the bowel nurse) had said F should be in school, and it was for this reason there unfortunately was a threat of prosecution.
6. The School had put in place a 1-2-1 mentor which allowed for an education to be delivered.
7. The School had delayed submitting the report of the interim annual review to the SEND team.
8. The Council had sought a place in a different school as quickly as it could.
9. Whilst the Council was consulting schools, the School had a duty of care to provide alternative provision for F, as he was still on their roll.
10. School X was full. The Council therefore decided not to waste time consulting with it. A place then became available at School X’s new site.
11. There had been a delay in receiving the signed contract from School X which was out of the Council’s control.
12. The Council had advised Ms D that school transport could not be set up immediately; it normally took around three weeks to organise. It had agreed to pay a mileage allowance from 29 April 2022 when she had contacted the transport team.
13. There was a telephone support line if there were difficulties with the EHC plan IT system.
14. The Council had a duty to send F’s father information as he had parental responsibility.
62. The Council said it had invested significant resource in the SEND 0-25 team and had increased staff numbers considerably to improve the service.

My findings

Failed to arrange suitable full-time education, SEN provision, or alternative provision for her son from September 2020 to March 2022.

63. The law is clear that councils must intervene and provide education under their section 19 Education Act duty if no suitable educational provision has been made, for example by their school, for a child who is missing education through exclusion, illness or otherwise.
64. This means that once the Council was alerted to F's non-attendance it needed to consider its legal duties and take action where appropriate.
65. The Council refused medical alternative provision in September 2020 on the grounds that F’s needs were behavioural not medical and there was no consultant letter. I cannot criticise a council’s decision if there is no fault in the process followed in reaching the decision. I have therefore considered how the Council reached this decision.
66. Since 2013 the Guidance has said that where evidence from a medical consultant is not available, councils should consider other evidence, including from the child's GP. This is to minimise delay in arranging appropriate provision for the child. If evidence is unclear, we would expect councils to contact medical professionals for clarification and to act in the best interests of the child and provide education until the further evidence is available.
67. The Council was wrong in its complaint response to Ms D that the bowel nurse had said F should attend school. In January 2020 the GP, bowel nurse and a clinical psychologist had agreed that F should not be forced to attend the School due to his anxiety and wellbeing. This was later reiterated in the April 2021 annual review, where all professionals agreed F needed a specialist placement.
68. I have seen no evidence showing how the Council considered the January 2020 letters from the health professionals. I therefore find fault in September 2020 in the way the Council considered the medical evidence that F could not attend the School.
69. The Courts have found that councils are entitled to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. But even if the medical evidence was insufficient, the law does not say alternative provision will only be given where there is medical evidence. The Council must consider whether F could not attend school for reasons other than illness or exclusion.
70. The "otherwise" category provides for a wide range of scenarios where the Council may have a legal duty under section 19. It might include, for example, when a child was refusing to attend school. In short, this means that, even if F's absence was not caused by illness or injury, the Council had a duty to consider whether the school was reasonably available and accessible to F, based on all the evidence. Whilst there were a number of Teams Around the Family meetings where F’s attendance was discussed I have not seen how or why the Council concluded the school was accessible to F. This is fault.
71. Finally, I have seen no evidence the Council considered whether any education was being provided at home, what F's educational needs were, or how these were being met. As a result, there is no evidence the Council developed a plan for F's education in September 2020, either at school or elsewhere, and no evidence that the Council considered whether F was receiving a suitable education. This is fault. I note that we have previously recommended the Council review its procedures around alternative provision, including how it weighs up evidence. I therefore do not make any further service recommendations.
72. The Council says that F was provided with an education because the School put in place a mentor in December 2020. On the evidence seen, I disagree. The purpose of the mentor was to help reintegrate F back into school, not to provide education. And in any case the sessions ended in January 2021 as the School closed due to COVID-19 before F was able to go into school with the mentor.
73. I have considered whether these faults led to F missing out on alternative provision. From this period from September until December I cannot say, on balance, whether the Council would have arranged alternative provision if it had considered the medical evidence in more detail. I note the School was marking attendance as unauthorised during this period, and the Council was arranging reintegration support, which indicates it may have felt the school remained accessible to F. However, the failure to consider the medical evidence, or the correct legal tests, has caused injustice in the form of uncertainty around what might have happened if the correct process was followed.
74. From January to March 2021, the country was in a national lockdown due to Covid 19, and any attempt to arrange education would have been disrupted during this period, as it was for all children.
75. However, from April 2021 schools had reopened, and there was a clearer consensus among professionals that the School was unable to meet F’s needs. By the time of the annual review it was agreed that F required a specialist educational placement, and a decision to amend his EHCP was issued shortly after. In May 2021, the education welfare officer advised the Council that prosecution of Ms D for F’s attendance would not be appropriate as a specialist placement had been requested and School could not meet F’s needs.
76. Therefore, from April 2021 onwards, I consider the Council should have arranged some form of alternative educational provision until the EHCP process was complete, given all parties accepted that the School was no longer accessible to F.

Failed to ensure the November 2020 emergency EHC plan review was completed.

77. The School did not submit the report of the November 2020 review to the Council as the professionals were unable to submit their views onto the Council’s IT system for EHC plans. The Council was aware that the emergency review had taken place. The education welfare officer and an inclusion officer attended a team around the family meeting on 8 December 2020; the notes show the emergency review was discussed. The Council should therefore have chased the report of this, not to do so was fault.

Delayed finalising the 2021 EHC plan.

78. The Council had to complete the annual review by 20 March 2021 as this was twelve months from when the final EHC plan had been issued. But it was held on 21 April. This was fault.
79. If there had been no fault, the decision to amend letter would have been issued by 18 April 2021 (rather than on 26 May). It took the Council 11 weeks to issue the draft EHC plan notifying Ms D of the proposed amendments, so this would have been 4 July 2021 (rather than 11 August). The final EHC plan should then have been issued eight weeks later, by 29 August 2021 rather than 16 September. However, I do not consider this delay caused a significant injustice given the relatively brief period between these two dates.
80. Ms D says the draft EHC plan should have been issued sooner, but the Code sets no timescales for when the amendments should be issued. So there was no fault. However, as noted above, it was fault for the Council not to arrange alternative educational provision during this period.
81. The Council has an improvement plan for its SEN services and we have previously recommended it review its processes and staff training for annual reviews to ensure reviews are completed within statutory timeframes and plans updated in a timely way. I therefore do not make any further service recommendations.

Failed to consult her preferred school in 2021.

82. Ms D had a right of appeal to the SEND Tribunal about the decision not to name School X in the September 2021 EHC plan. I consider it would have been reasonable for her to use this right to challenge the decision not to name School X. This means I cannot consider this element of Ms D’s complaint.

Delayed issuing an amended final EHC plan after mediation in 2021.

83. Following a mediation agreement the Council should issue an amended EHC plan within five weeks unless a different timescale has been agreed in writing. (SEND Regulations 2014 s42(5))
84. The mediation agreement of 27 October 2021 said a draft EHC plan would be issued 14 days after the receipt of the educational psychologist’s report. The Council has sent evidence that it received that report on 6 December and issued the draft plan on 7 December 2021.
85. However, as the final EHC plan should have been issued by 29 August 2021, the mediation and subsequent draft EHC plan should have happened sooner. The EP report took about six weeks to produce, so the draft EHC plan should have been issued on 22 November, rather than 7 December.
86. To be in line with the Code, the Council would then have to allow a further four weeks to consult with Ms D and the School before issuing the final plan. As the School was closed over the Christmas holiday, this means the final EHC plan should have been issued by the end of December. But it was not issued until 4 May 2022. This is fault.
87. This caused injustice to F as, if the final plan had been issued by the end of December, he could have started at School X in January 2022, but he did not start until 9 March 2022.

Delayed completing paperwork once a place was confirmed causing F’s start date to be delayed to March 2022.

88. School X offered F a place on 14 December 2021. This was agreed by the Council’s panel on 26 January 2022. The Council then sent School X the signed contract on 10 February. I have seen no evidence School X delayed returning the signed contract. As noted above, we have found fault with the Council for not issuing the plan earlier, which led to the delay in F joining the new school.

Did not advise her she could apply for mileage after she had to transport F due to lack of school transport in March 2022.

89. I have seen no evidence of the conversation between Ms D and the Council about the school transport. When considering complaints 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. Therefore, on the balance of probabilities I consider it likely that Ms D would have applied sooner for the mileage allowance if she had been aware of its existence.
90. I therefore find there was fault by the Council as it did not advise Ms D. This has caused her to lose out on mileage allowance for seven weeks (9 March – 28 April 2022).

Did not provide her with information about appeal and complaints procedures and delayed responding to her complaint.

91. The final EHC plan issued on 6 September 2021 was addressed to F’s father, and not sent to Ms D, which was fault. But this did not cause her significant injustice as she was able to go to mediation by October 2021.
92. The Council received Ms D’s complaint on 10 October 2022 and responded on 28 November, three weeks later than its 20 working day target. This is fault which caused Ms D some time and trouble.

Did the fault cause injustice?

93. On the evidence seen, I have found the following fault caused injustice to F and Ms D:
• Failure to consider the medical evidence, whether F could not attend the School for “otherwise” reasons, or whether the School was available and accessible to him, has caused uncertainty to Ms D for the period from September to December 2020.
• Failure to chase the report of the November 2020 emergency review caused Ms D’s opportunity to appeal to the Tribunal to be delayed by about three months.
• A failure to arrange alternative educational provision from April to July 2021. We have not considered the period from September to December 2021 given the availability of appeal rights during this period.
• The delay in issuing an amended final EHC plan after mediation in 2021 meant F could not start School X in January 2022. He therefore missed out on about two months of education.
• The Council’s failure to advise Ms D she could apply for mileage allowance caused her to lose out on payments over the period 9 March – 28 April 2022.
• The delay responding Ms D’s complaint caused her some time and trouble.
94. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. Our guidance on remedies says a moderate, symbolic sum up to £500 may be appropriate for uncertainty caused by fault.
95. The Ombudsman’s guidance says that where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 a term to acknowledge the impact of that loss. Considering F’s needs, the stage of his education, his likely attendance and the amount of support he likely missed, I consider that £1,500 a term (about £500 per month) would be the appropriate figure.

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Agreed action

96. Within a month of my final decision, the Council has agreed to pay Ms D:
1. £1,500 for F’s educational benefit to remedy the loss of education from April to September 2021.
97. The Council has already made the following payments:
1. £500 to remedy the uncertainty caused by fault.
2. £1,000 for F’s educational benefit to remedy the loss of education from January to 9 March 2022.
3. The mileage allowance she was due from March to April 2022.
4. £100 to remedy the time and trouble she was caused by the delay in dealing with her complaint..
5. £200 to remedy the delay to her opportunity to appeal.
98. The Council should provide us with evidence it has complied with the above actions.

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Final decision

99. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman