Summary: Mrs X complained the Council delayed in reviewing her child D’s Education, Health, and Care Plan and failed to ensure D received a suitable education and support for their special educational needs. There was fault by the Council which caused D to miss education and special educational needs support. It also caused avoidable distress for D, and avoidable distress, time, and trouble for Mrs X. The Council agreed to apologise, ensure the provision in D’s Education, Health, and Care Plan is in place without delay, and pay a financial remedy. It will also issue reminders to its staff, and ensure it considers our findings about Education, Health, and Care Plan review delays at its SEND Assurance Board.

The complaint

1. Mrs X complains the Council failed to ensure her son D received suitable education and Special Educational Needs (SEN) support from 2021 to 2023. She says the Council:
• failed to ensure D received suitable alternative education when he could not attend school, after it became aware of this in December 2021;
• failed to ensure D received the SEN provision set out in his Education, Health, and Care (EHC) plan from September 2021 to July 2023;
• delayed the EHC plan annual review for eight months;
• delayed in finding D a suitable special school placement after it agreed his mainstream school could not meet his needs; and
• did not complete the remedies it offered the family when it responded to their complaint about this and accepted fault.
2. Because of this Mrs X says:
• D was in a school setting which could not meet his needs and he missed suitable education and SEN support. This impacted his emotional and mental wellbeing;
• Mrs X could not appeal to the First-Tier Tribunal for SEND about whether the content of D’s EHC plan was suitable, because of the delays to the annual review; and
• Mrs X suffered a financial loss because she paid for educational activities while D was out of school.
3. Mrs X wants the Council to:
• ensure D receives a suitable education, at a school or otherwise;
• ensure D’s EHC plan is delivered;
• carry out the remedies it agreed to in its complaint response; and
• increase the financial remedy it offered for missed educational provision, so it covers the whole period D missed.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We cannot investigate 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 Mrs X and discussed the complaint with her;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
10. Mrs X and the Council had 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

What should have happened

Alternative education for children out of school

12. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
13. 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))
14. 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)

Education, Health, and Care (EHC) Plans

15. 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.
16. 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)  

Reviewing EHC Plans

17. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC reviews and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
18. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
19. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
20. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
21. The Council must then issue any final amended EHC Plan within eight weeks of the notice of proposed amendments. (R(L, M and P) v Devon County Council [2022]). Therefore, it must issue a final Plan within twelve weeks of the review meeting.

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. Once the Council issues a final EHC Plan, there is a right of appeal to the SEND Tribunal against the:
• description of the child’s SEN;
• SEN provision specified;
• school or placement specified; or
• fact that no school or placement is specified.
24. The courts have established that if someone has appealed to the SEND 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 is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a disagreement about the SEN provision or educational placement in the EHC Plan, we cannot investigate a lack of SEN provision, or alternative educational provision. The period we cannot investigate starts from the date the appealable decision is made and given to the family.
26. Also, if a family appeals to the tribunal about the SEN provision or school placement/ lack of school placement in a final EHC Plan, we cannot investigate issues in the EHC assessment process that led to that final Plan. That is connected to the issue that has been appealed.
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 and we decide the cause is not connected to the appeal; and
• alternative education, when the reason the child 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.  

What happened

29. In June 2021, the Council issued D with his first EHC Plan. This Plan said further assessment of D’s literacy and numeracy skills should be carried out when the impact of COVID-19 had lessened, and it was safer to do so.
30. D started year 4 in September 2021 at a mainstream primary school. Two weeks later the Council met with the family and the school to discuss D’s education. At this meeting it was discussed with the Council that D was experiencing anxiety and starting to display some school avoidant behaviours.
31. In December 2021, D’s school applied to the Council to provide alternative educational provision for D because he was not attending school full time.
32. In February 2022, the school held an annual review meeting for D’s EHC Plan. At this meeting it was agreed:
• D would remain on roll at his school. The Council would arrange some alternative provision to supplement this and ensure he received an education equivalent to full time; and
• in reviewing D’s EHC Plan, the Council would arrange literacy and numeracy assessments.
33. Three months later, in late-May 2022, the Council considered internally what alternative educational provision D should receive, alongside the provision he received when able to attend school. It decided for the rest of the 2021/2022 school year, he should receive weekly mentoring. It also decided a package of alternative provision for the first term of the coming 2022/2023 school year, in addition to some attendance at school. Mrs X told us the Council’s records about what it decided differ from what it discussed with her, and from what D was offered.
34. In early-June 2022, D was still attending some school. The Council had not arranged any alternative educational provision for D or told Mrs X about what it had recently internally agreed to provide. It had also not issued a final amended EHC Plan. The Council’s SEND Panel considered D’s case and decided he should have a special school placement instead of mainstream. The Council began consulting special schools to be named in D’s EHC Plan. Shortly after this, a Clinical Psychologist provided a medical note for D which said he could not attend full time and any absences should be authorised.
35. In July 2022, the Council arranged two hours of alternative provision for D per week alongside his attendance at school, for the rest of the 2021/2022 school year. D received this support for three weeks. Mrs X said this was mentoring support and was not educational. The Council also wrote to Mrs X to explain what provision it would arrange for the next 2022/2023 school year, but this differed from what it recorded it had agreed internally.
36. In September 2022, D started year 5 and was still attending some school. The Council had still not issued a final amended EHC Plan. It started to look at arranging the literacy and numeracy assessments it had agreed to seven months earlier at the February 2022 review. D’s school arranged home tutoring for D, which the Council had agreed to provide funding for. D received two sessions in early-September, but the arrangement did not work so the school started looking for a different tutor. The school told the Council this ended because Mrs X felt D could not continue with it. Mrs X told us the tutor was not suitable and did not have the appropriate SEND training. The Council did not arrange any of the other alternative provision it had previously internally agreed D needed.
37. In October 2022, the Council provided funding to Mrs X so she could buy a laptop and associated equipment and special software for D to use at home, in line with his EHC Plan. However, D’s Plan also said he needed training to use the software, which the Council did not provide, so he could not use the laptop.
38. In January 2023, the Council considered and decided internally what alternative educational provision D should receive for the spring term of the 2022/2023 school year, in addition to some attendance at school. However, it did not put the package it had agreed in place. Mrs X told us the Council’s records about what it decided differ from what it discussed with her, and from what D was offered.
39. Also in January 2023, Mrs X complained to the Council about delays to the EHC Plan review, and a lack of alternative educational provision. She said D was receiving mentoring no tutoring. Later that day, the Council issued a final amended EHC Plan for D. This named D’s mainstream school as a temporary measure until it could identify a special school place. It also specified some changes to the Occupational Therapy and Clinical Psychology SEN support D should receive. The Council told Mrs X at the time it would be reviewing the Plan again in a month and was only issuing a final Plan so it had an up to date version to review. I therefore consider it reasonable Mrs X did not appeal to the SEND Tribunal about this Plan, because she had a legitimate expectation a more up to date Plan would follow shortly after.
40. In February 2023, the Council reviewed internally what alternative educational provision D should receive, alongside the provision he received when able to attend school. It decided for the rest of the 2022/2023 school year he should receive a package of alternative provision, including two full days at an alternative provision provider for children with social, emotional, and mental health needs. However, it did not put the package it had agreed in place. Mrs X told us the Council’s records about what it decided differ from what it discussed with her, and from what D was offered.
41. In March 2023, five weeks after Mrs X complained, the Council issued a Stage 1 complaint response. It apologised and accepted fault. It said it had failed to:
• carry out the literacy and numeracy assessments it agreed to in good time, and meet statutory timescales in reviewing D’s EHC Plan;
• meet its duty under section 19 of the Education Act 1996 to provide suitable alternative education. It said it delayed in agreeing D’s alternative provision package until near the end of the 2021/2022 school year. It accepted it then failed to provide everything it had agreed, and this issue continued in the 2022/2023 school year; and
• deliver all the SEN provision set out in D’s latest June 2021 EHC Plan. It accepted it delayed in providing funding for a laptop and associated software for D to use at home until October 2022.
42. Two weeks later, D’s school held an EHC Plan annual review meeting.
43. In early-April 2023, two weeks after the review meeting, Mrs X met with the Council to discuss her complaint. At this meeting, the Council restated its June 2022 decision that D needed a new school placement and said it was still consulting special schools. It also agreed D would need an up-to-date assessment by an Educational Psychologist (EP) to update his EHC Plan and allow for a change of school placement. The following day, Mrs X escalated her complaint to Stage 2 of the Council’s complaints procedure. She said:
• although the Council had accepted fault in its Stage 1 complaint response, it had not offered a remedy to recognise the injustice caused to D;
• some alternative educational provision was now in place, but changes were needed to ensure it was suitable for D and he was receiving an education equivalent to full time; and
• she was unclear if the Council had agreed it would fund an EP assessment she had arranged privately in a few weeks, or if it was arranging an alternative.
44. In mid-May 2023, the Council met with Mrs X and D’s school to review D’s alternative provision, alongside the provision he received when able to attend school. It decided a package he should receive for the remainder of the 2022/2023 school year, including twelve hours at a different alternative provision provider for children with social, emotional, and mental health needs.
45. In late-May 2023, eight weeks after Mrs X escalated her complaint to Stage 2, the Council issued its final complaint response. It said the recently agreed alternative provision package would begin after the May half-term. It clarified it would repay Mrs X for the EP assessment she had arranged privately. It also proposed the following remedies for the injustice caused to the family by its faults.
• A formal written apology from a senior member of staff to D and Mrs X.
• £900 to recognise the impact of missed education for D from 11 July 2022 to 19 January 2023.
• £100 to fund a gift for D to recognise the distress caused.
• £150 to recognise the distress caused to Mrs X.
• £100 for the time and trouble caused to Mrs X in bringing the complaint.
• It would consider repaying Mrs X for money she spent on physical activities and educational materials for D while waiting for alternative provision. It asked her to provide relevant evidence of these costs for its consideration.
46. In mid-June 2023, the Council asked Mrs X if she agreed it could issue a final amended EHC Plan by the end of the week, stating D needed a special school type but without naming a specific placement, to meet the twelve-week statutory review timescale. It said once it received the report from the EP assessment that had happened a week earlier, it would then review the Plan again, amend as needed, and consult schools. Two days later, exactly twelve weeks after the March 2023 annual review meeting, the Council issued a final amended EHC Plan for D. This again named D’s mainstream school as a temporary measure until it could identify a special school place. It also specified some minor changes to the Occupational Therapy and Clinical Psychology support D should receive, and to in-class support for D. As the Council had told Mrs X it would immediately review the Plan and was only issuing it to meet statutory timescales, I consider it reasonable Mrs X did not immediately appeal to the SEND Tribunal about this Plan.
47. In late-June 2023, Mrs X made another complaint to the Council. She said it had delayed in repaying her for further physical activities and educational materials she paid for herself. The Council apologised and repaid the money within seven weeks of the second complaint.
48. Mrs X complained to the Ombudsman in August 2023, not long after D finished year 5. She said the Council had not offered a remedy for all the education D missed and had not delivered the complaint outcomes it promised. The Council received the EP report the day after Mrs X came to the Ombudsman.
49. In September 2023, D started year 6. The Council asked D’s school to remove him from its roll, so he now had no school placement. Mrs X was still communicating with the Council to ask it to review D’s EHC Plan to include the EP report which was received in late-August. Following the start of our investigation, the Council paid Mrs X the money it had promised to reimburse in the May 2023 complaint response.
50. In October 2023, Mrs X submitted a late appeal to the SEND Tribunal about the June 2023 EHC Plan. She had been chasing the Council to review the Plan following the EP report so new school placements could be consulted, because it had said it would do this. As it had not actioned this, she decided to appeal to Tribunal.

My findings

Time period of my investigation

51. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons to. Mrs X came to the Ombudsman in August 2023, so we would usually only look at what happened after August 2022. I decided I should investigate what happened from January 2022. This is because:
• Mrs X raised issues with the Council consistently from April 2022. The Council repeatedly said it would act but then failed to do so; and
• once Mrs X complained, there were delays in the Council’s complaint handling which delayed Mrs X in coming to the Ombudsman.
52. I have not investigated new events from the 2023/2024 school year, because that is after Mrs X brought this complaint to the Ombudsman. Mrs X has made a new complaint to the Council, and then to the Ombudsman, about events in the 2023/2024 school year, which we will consider separately.

Alternative education while unable to attend school full time

53. The Council accepted it was at fault because it failed to meet its duty to provide alternative education while D was unable to attend a school setting full time. I agree this was fault.
54. The Council offered a financial remedy to recognise the education D missed from 11 July 2022 to 19 January 2023. However, the Council was aware D was not attending school full time from December 2021. After this the Council should have considered its section 19 duty and arranged suitable alternative education within half a term, so by the February 2022 half term. Therefore, the Council should remedy any missed education from this point.
55. Paragraphs 22 to 28 of this decision explain the limits to our investigations where there is a right to appeal to the SEND Tribunal about a final EHC Plan.
56. The Council issued a final Plan in January 2023, at which point Mrs X had the right to appeal to Tribunal. We cannot investigate any matter which could have been appealed, unless we decide it is unreasonable to expect someone to have appealed. As explained at paragraph 39, I consider it reasonable Mrs X did not appeal the January 2023 EHC Plan to the Tribunal. Therefore, I decided I can investigate, and recommend a remedy for, any education D missed after this Plan was issued.
57. The Council issued another final Plan in June 2023. Mrs X appealed about the June 2023 Plan. We cannot investigate any matter which has been appealed or is connected to an appeal. Part of Mrs X’s appeal was about D’s school placement. Therefore, we cannot investigate any lack of alternative provision from the point the Council issued the final amended EHC Plan on 16 June 2023, and the appeal right arose. The Plan named D’s mainstream school as a temporary measure, and D’s inability to attend that school full time is a consequence of that school not being suitable for him, which Mrs X has appealed. In this case Mrs X did not submit her appeal about the June 2023 Plan until October 2023. This is because she had a reasonable expectation based on what the Council had told her that she did not need to appeal, as it would be reviewing the plan again shortly. Also, the Council made clear to Mrs X and D’s school that it did not expect D would actually attend the school, and said it would be seeking a new placement as soon as possible. I therefore consider it reasonable Mrs X did not appeal straight away. However, that does not mean I can consider any education missed after 16 June 2023. The courts have established that I cannot, because Mrs X has now exercised her right of appeal.
58. Therefore, the Council should remedy the injustice caused to D by any loss of education from the February 2022 half term to 16 June 2023. I considered the education D received during this period, and found the following.
• D attended some school during this time but could not be educated within the main classroom with his peers.
• From February 2022 to May 2023, although the Council agreed to fund alternative provision for D, it failed to properly arrange this, so there was no suitable alternative education in place for D. In responding to Mrs X’s complaint, the Council accepted it did not deliver all the provision it had agreed to fund.
• After the 2023 May half term, following Mrs X’s complaint, the Council said D started to receive a full package of alternative education which it considered to be suitable for him and equivalent to full time. Mrs X said she did not consider the package put in place was equivalent to full time, as evidenced by the fact the Council agreed additional tutoring was needed after this date. Based on the evidence I have seen, I am satisfied the Council properly considered the number of hours for the package it put in place after the May 2023 half term, and that this was suitable for D. The fact it continued to discuss this with the family and gradually increase provision as needed is not fault; this is what we would expect.
59. Therefore, D missed suitable full time equivalent education from the February 2022 half term to the May 2023 half term. This was four terms of education, for which the Council should provide a remedy.

Delivery of EHC Plan

60. I also considered whether D received the SEN support set out in his EHC Plan. In responding to Mrs X’s complaint, the Council accepted it did not ensure D’s EHC Plan was in place. D received some SEN provision set out in the Plan, such as Occupational Therapy, and sessions with a Clinical Psychologist. However, D did not receive various in-class support at the times when he was able to attend school. Also, D’s Plan said he needed a laptop and special software to record his work, for use both in school and at home. The Council did not provide funding for a laptop until October 2022, and even then, D could not use it because he did not receive training on how to use the software, which his Plan said he needed. Mrs X said this had a significant impact because D was unable to record his work.
61. The Council should provide a remedy because D did not receive all the SEN support set out in his Plan. This remedy should cover the full period I investigated, from January 2022 to the end of the 2022/2023 school year. This is five terms of SEN support.

EHC Plan review process and delays

62. We can look at delays in the EHC Plan review 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.
63. At the February 2022 review meeting, the Council agreed it should arrange literacy and numeracy assessments to inform its review of D’s EHC Plan. It did not take any steps to arrange these until seven months later in September 2022, so the reports were not received until December. It should have taken the necessary steps to ensure it could issue a final amended Plan within twelve weeks of the February meeting. Instead, it took eleven months to issue a final Plan, a delay of eight months, which was fault.
64. When the Council eventually issued a final Plan in January 2023, it told Mrs X it immediately planned to carry out another review meeting. It continued to name D’s school in the Plan even though it had decided in June 2022 the school was not suitable for him. The evidence shows the Council issued the January 2023 Plan even though it told Mrs X it was not fit for purpose.
65. The Council immediately arranged another review, which took place in March 2023. Within two weeks of the review meeting, the Council agreed D needed a new EP assessment to inform the Plan. However, it took no steps to arrange an assessment; Mrs X had to arrange this herself. This failure to arrange an assessment it had decided was necessary, was fault. The Council has since repaid Mrs X for this assessment, but Mrs X was caused avoidable inconvenience because the Council should have arranged this.
66. The Council issued a final amended Plan in June 2023, within twelve weeks of the March 2023 meeting. However, again the Council said it would immediately arrange another review meeting to update the Plan, and said it was only issuing a Plan to meet statutory timescales. The EP assessment Mrs X arranged had happened a week earlier so the Council said it would update the Plan again when it received the EP report.
67. Because the Council then did not update the Plan to include the EP advice, Mrs X has now, as of October 2023, appealed the June 2023 Plan to the SEND Tribunal. Therefore, we cannot consider the suitability of the June 2023 Plan, or whether it should have included EP advice. This is for the Tribunal to consider. However, the Council has repeatedly issued Plans to D which it called “final” Plans, while at the same time telling Mrs X it agreed the Plans did not meet D’s needs. I consider the inconsistencies between the Council’s actions and what it told Mrs X to be fault. The Council ensured it technically met statutory timescales following the March 2023 review meeting, but created a situation for Mrs X which was confusing, frustrating, and frustrated her right to appeal to the SEND Tribunal. The Council should remedy the injustice caused.
68. I also considered whether the delays in the EHC Plan review process meant D lost out on added special educational provision. The evidence shows that although the Council called the January 2023 and June 2023 Plans “final”, it told Mrs X it did not consider these to be suitable to meet D’s needs. Therefore, I cannot say, even on the balance of probabilities whether D may have missed out on added SEN provision. I can only conclude there remains uncertainty about whether D may have got a new Plan, earlier, containing more SEN provision, had there not been fault in the review process. There also remains uncertainty about whether D could have been placed in a special school which was suitable for him, had the Council acted without delay and without fault in the review.
69. The uncertainty that remains for D and Mrs X about what he may have missed out on due to delays by the Council, causes them distress. The Council should remedy the injustice caused.

Complaint handling

70. Mrs X escalated her complaint with the Council to Stage 2 because although it had accepted fault, it had not offered any remedy. This was fault by the Council; it should have properly considered how it should put things right for the family. This caused Mrs X avoidable time and trouble in continuing with her complaint.
71. Mrs X said the Council then failed to complete the remedies it offered the family at Stage 2. I have considered each of the complaint outcomes as follows.
• Repayment for money Mrs X spent on an EP assessment, and physical activities and educational materials for D while waiting for alternative provision. Mrs X sent the Council a copy of the EP assessment invoice in June 2023. She sent invoices for the other activities and materials in early-July 2023, five weeks after the Stage 2 complaint outcome. Mrs X had to complain to the Ombudsman and re-send the invoices before the Council repaid the money in late-September 2023. Tthis delay by the Council in following up on its complaint outcomes was fault, which caused Mrs X avoidable time and trouble.
• Financial remedy for missed education, distress, and time and trouble. Mrs X asked the Council about these other payments when she provided invoices for money she had spent. The Council then met with Mrs X and agreed it would soon pay the financial remedy. It did not follow up on this, which was fault.
• Apology. When responding to my enquiries the Council accepted it did not send an apology letter as it had promised. It said it missed this because it was waiting to resolve the financial remedy too, which never happened after Mrs X came to the Ombudsman. The Council could have apologised regardless of Mrs X’s complaint to the Ombudsman, so this was fault. The Council should send an apology which recognises all the faults identified in the Ombudsman’s investigation.
72. The Council should provide a remedy for the avoidable time and trouble caused to Mrs X by the faults in its complaints handling.
73. In response to our enquiries, the Council provided evidence that in April 2024 it appointed to a new post at manager level, to be a direct point of contact for families and prevent recurrence of the issues with complaint handling that happened in this case.

Wokingham SEND Strategy 2021-2024

74. In March 2019 Ofsted and the Care Quality Commission (CQC) carried out a joint local area SEND inspection in Wokingham and identified areas of significant weakness. Ofsted raised concerns about the quality of EHC Plans, delays in annual reviews, and insufficiency of available special school places. The Council sent a written statement of action to Ofsted in August 2019 setting out actions it would take to address its concerns. In 2021, Ofsted carried out another inspection to monitor progress. It decided the Council had made good progress in most of the areas identified.
75. The Council has since issued a SEND Strategy and action plan for 2021 – 2024. The SEND Strategy sets out governance by the Council’s SEND Improvement Board, and delivery through four working groups under the Council’s SEND Innovation and Improvement Programme (SIIP). The Council told me the SEND Improvement Board has now been superseded by a new governance structure, with an Assurance Board now leading on process issues.
76. We have already identified fault with this Council in recent years about EHC Plans and alternative education for children out of full time school, as follows.
• In October 2021, following our investigation into case 20 003 352, the Council told us it was making changes to its EHC Plan annual review process to improve timeliness.
• In November 2022, following our investigation into case 21 013 840, the Council agreed to review its processes to ensure alternative education is available as soon as possible when a child is out of school.
77. Steps the Council took to improve its timeliness in EHC Plan reviews (following case 20 003 352), did not prevent significant delays in D’s case. I have therefore made further recommendations for the Council to address this issue.
78. However, the issues with a lack of alternative education in D’s case arose before the Council completed our recommendations for case 21 013 840. Therefore, I do not consider I need to make further recommendations about the Council’s duties under section 19 of the Education Act 1996 at this stage. The Council will need time to ensure the changes following case 21 013 840 take effect. The Ombudsman will continue to monitor effectiveness in any similar future complaints.

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Agreed action

79. As set out in our guidance on remedies:
• where we find fault has resulted in loss of educational provision, we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss; and
• in addition to educational provision, we recommend additional remedies for loss of SEN support such as Occupational Therapy or sessions with a Clinical Psychologist. 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.
80. The Council offered to pay a remedy of £900 for the 1.5 terms of missed education it considered, which equates to a termly payment of £600. When it responded to our enquiries, it increased this offer to £1,000, which equates to a termly payment of around £667. Based on our guidance on remedies, I do not consider the termly payment offered by the Council is enough to recognise the education and SEN support D missed. I have recommended it goes further. I propose the Council should pay my recommended remedy instead of the offer it previously made. In deciding a suitable financial payment, I considered the following.
• During this period, D was in years 4 and 5 of primary school. As set out in our guidance on remedies, we do not consider this to be one of the most significant periods in a child’s school career, as we would for say the first year of secondary school, or a public exam year.
• D attended some school during this time and received a small amount of alternative provision such as mentoring. However, he did not receive any direct teaching or tutoring. He did not receive a full time equivalent education for most of the period I considered.
• D received some SEN provision set out in his EHC plan during this time. This included direct Occupational Therapy and sessions with a Clinical Psychologist. However, he did not receive all the provision in his Plan. He could not reasonably access the laptop and special software his Plan said he needed for use both in school and at home, and to record his work, which had a significant impact on his ability to access education.
• The Council has already repaid Mrs X £1,022.79 for physical activities and educational materials she paid for herself.
81. Based on these factors, I consider the Council should provide a remedy of:
• £1,200 per term for the 4 terms of education D missed from February 2022 to May 2023; and
• £400 per term for the 5 terms of SEN support D missed from January 2022 to July 2023.
82. When accounting for the physical activities and educational materials the Council has already paid Mrs X for, this leaves a total of £5,777.21 for missed education and SEN support.
83. The Council offered to pay a remedy of £150 to recognise the distress caused to Mrs X, and £100 to fund a gift for D. Based on our Guidance on Remedies, I do not consider this is enough to recognise the distress caused. I have recommended the Council goes further.
84. The Council offered to pay a remedy of £100 for time and trouble caused to Mrs X in bringing the complaint. I consider this to be a suitable remedy in line with our guidance on remedies.
85. Within one month of our final decision the Council will:
1. apologise for the faults identified and the impact of those faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology;
2. ensure the SEN provision set out in D’s EHC Plan is fully in place. It has a statutory duty to deliver the provision in his latest final EHC Plan regardless of any ongoing Tribunal appeal about the Plan;
3. pay the family a total of £6,777.21, comprising of:
1. £5,777.21 to recognise the education and SEN support D missed. This is intended for D’s future educational benefit;
2. £600 to recognise the avoidable distress caused to Mrs X by the Council’s failings;
3. £300 to recognise the avoidable distress to D; and
4. £100 to recognise the avoidable time and trouble Mrs X spent pursuing her complaint.
86. Within three months of our final decision the Council will:
1. ensure it considers a copy of our final decision at its SEND Assurance Board to decide what steps it should take to address the issues identified. Specifically, the Board should discuss our findings about fault in the EHC Plan review process;
2. issue reminders to staff involved in the complaint response in this case that:
1. when the Council accepts fault, it should consider how it can put things right for the complainant, in line with the Ombudsman’s guide, ‘Effective complaint handling for local authorities’; and
2. when the Council upholds a complaint and offers a remedy, it should ensure it completes that remedy without delay.
87. The Council will provide us with evidence it has complied with the above actions.

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Final decision

88. 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 for D, and avoidable distress, time, and trouble for Mrs X. The Council has agreed to our recommendations to remedy this injustice, issue reminders to its staff, and ensure it considers our findings about EHC Plan review delays at its SEND Assurance Board.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman