Summary: Mr D complained about the Council’s special educational needs and disability service. We upheld his complaint finding the Council delayed in completing reviews of his child’s Education, Health and Care Plan between February 2023 and July 2024. It also communicated poorly and we considered it should have done more to review his child’s access to education. These faults caused injustice as distress and lost education provision. The Council has accepted these findings and at the end of this statement we set out action agreed by the Council to remedy that injustice and improve its service.

The complaint

1. Mr D complained on his own behalf and that of his wife, Mrs D, about the service they received from the Council, when requesting support to meet their child’s needs. Their child, E, has special educational needs and an Education, Health and Care (EHC) Plan. Mr D complained the Council:

• failed to communicate effectively with him and Mrs D after January 2022;
• named a mainstream secondary school on E’s EHC Plan in February 2023. It did this despite not having a consultation response from that school, nor one from a specialist school Mr D asked it to consult;
• told Mr D it had named the mainstream school as an interim measure. But when, in April 2024, it decided not to offer specialist provision it did not tell him this. Mr D only found out in August 2024;
• failed to amend E’s EHC Plan after a review conducted in March 2023;
• delayed in amending E’s EHC Plan after another review in February 2024;
• provided no suitable education for E after he stopped attending school in early 2023; and
• began a Children and Family needs assessment despite neither Mr nor Mrs D asking for this.

2. Mr D said because of the above, the family experienced avoidable distress with harm to their wellbeing and E had not received suitable education provision. Mr D said he also used unnecessary time and energy chasing the Council. Mr D said the Council’s decision to begin a Children and Family needs assessment led E’s GP to wrongly record there was a child safeguarding concern.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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. 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)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)
9. 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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How I considered this complaint

10. Before issuing this decision statement I considered evidence provided by Mr D and the Council, as well as relevant law, policy and guidance.
11. I also gave Mr D and the Council opportunity to comment on a draft version of this statement. I took account of any comments they made, or further information they provided, before finalising the statement.

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What I found

Relevant law and guidance

Special educational needs

12. A child or young person with special educational needs may have an EHC Plan. This will set out the child’s needs and arrangements to meet those needs. We cannot direct changes to EHC Plans where they describe children’s needs, the education they need or the name of their educational placement. Only a council or the SEND Tribunal can do this. 
13. The council must review and amend an EHC Plan in enough time before a child moves between key phases of education (such as between primary and secondary school). This allows planning for and, where necessary, commissioning of support and provision at the new institution. The council must complete the review and any amendments to the Plan by 15 February of the calendar year in which the child transfers between school phases.
14. A council must also arrange for a review of a child’s EHC Plan 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 then take place. The process is only complete when the council issues a decision to amend, maintain or discontinue the Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
15. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person:

• a copy of the existing (non-amended) Plan; and
• an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). 

16. Case law sets out the actions set out in paragraph 15 should happen within four weeks of the date of the review meeting. Councils must then issue the final amended EHC Plan within a further eight weeks.
17. A child’s parent has to right to appeal to the SEND Tribunal, if they disagree with:

• how a final EHC Plan describes a child or young person’s special educational needs;
• the special educational provision specified in the Plan;
• the school or placement named in the Plan (or that it names no school or other placement);
• a decision not to amend an EHC Plan following a review or reassessment.

Alternative Education Provision

18. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
20. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
21. That guidance makes six recommendations. Councils should:

• consider the individual circumstances of each case. They may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review and consider increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

22. The Council has an ‘ESMA’ service (Educational Support for Medical Absence). It describes this as a teaching service for children unable to attend school for medical reasons. It says its aim is to help pupils continue their education while “getting them back into school life as soon as possible”.
23. The ESMA service says it can provide:

• written advice and guidance on reasonable adjustments schools need to make to meet the needs of pupils, including offering virtual or face-to-face guidance meeting(s);
• electronic learning aids and both online and face-to-face teaching;
• support for schools to provide core subject teaching;
• work towards reintegration of pupils;
• tutoring;
• presence at half-termly reviews;
• liaison with health professionals.

Children’s social care & relevant council policy

24. The Council has a policy called the “Short Break Local Offer” (SBLO), which aims to support parents and carers of disabled children gain respite from caring. The Council offers support for parents to have “short breaks” which can vary in length from one hour to a whole day. That support can include services such as activity clubs, holiday clubs or support in the home. All children who have an EHC Plan in the county can access 40 hours of such support per year, under the SBLO.
25. The Council can also assess if parents need more support. It can undertake either a short breaks assessment or a child and family assessment. It says the former are quicker to complete and less intrusive. It will offer such an assessment if the presenting need appears “less complex”. It says a child and family assessment is more comprehensive and designed to consider if a child needs support as a ‘child in need’ under Section 17 of the Children’s Act. This says councils must safeguard and promote the welfare of children within their area who are in need.
26. The Act defines a child in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

27. Government guidance says: “practitioners should ensure that the family has understood any support or services offered under Section 17 of the Children’s Act 1989 are consensual” (see Working Together to Safeguard Children 2023 para 133).
28. The Hertfordshire Social Work Procedures Manual says: “information from all agencies, including Children Services, that are, or have been, involved with the child and any relevant person in the child's network will be obtained. Appropriate consents for obtaining this information must be sought, unless particular circumstances apply [..]”.

The key facts

Events relevant to the complaints about E’s ECH Plan

29. E is a child with special educational needs. They have had an EHC Plan since June 2021.
30. In February 2023 E was in Year 6 of their education and so coming to the end of their primary phase. The Council issued E with an amended EHC Plan in preparation for their transfer to secondary school in September 2023.
31. Before issuing the Plan, the Council had sent consultation letters to both a mainstream and specialist school, but neither had replied.
32. The mainstream school later explained to Mr D it missed a series of consultation requests from the Council around this time. This was because they went to a different email address to that the school understood the Council would use.
33. Without replies from either school, the Council decided to name the mainstream school on D's EHC Plan. So, E’s Plan said they would attend the mainstream school from September 2023.
34. After receiving the Plan, Mr D contacted the Council to query why it had named the mainstream school. He asked if the Council was “continuing to look for a specialist provision school”.
35. In reply E’s SEND Officer told Mr D the Council was “looking at alternative provision” for E. Later, they said the Council had named the mainstream school “in the interim”.
36. In April 2023 a Council placement panel, made up of senior managers in its SEND service, met to discuss whether to offer E a placement at a specialist school, instead of mainstream. The panel decided against this.
37. The Council says officers who consider a child may benefit from a specialist place present the case to panel. They are then responsible for telling parents the outcome of the discussion. I noted in mid-May 2023 E’s case officer (a manager in the SEND service) sent an email to Mr D saying they still awaited the outcome of the panel discussion.
38. The Council did not write to Mr D to tell him the outcome of its panel discussion until August 2023. The Council understands the delay in notifying the outcome arose because the case officer handed the case over to a colleague shortly afterwards. It overlooked the need to contact Mr and Mrs D as part of the handover.
39. While the events above unfolded, in between, in March 2023 there was a review of E’s EHC Plan. The Council acknowledges that further to that review it did not write to Mr and Mrs D to confirm if it planned on maintaining, amending or discontinuing E’s EHC Plan. It believes the reason it took no action also lies in the case management arrangements described above and the incomplete handover. It also considers given it had only recently issued a new Plan to E, this “may have contributed to delays”.
40. In January 2024 there was a further review of E’s EHC Plan and their school sent details of this to the Council the following month.
41. Also, in January 2024 Mr D made a complaint to the Council about its special educational needs and children’s social care services. The complaint covered the matters summarised in paragraph 1.
42. During investigation of that complaint the Council says that it recognised failing to act after the March 2023 review. It says it apologised for this and offered Mr and Mrs D a symbolic payment of £400 in recognition of the impact of its delay.
43. The Council gave it final response to the complaint in June 2024. It response included:

• a defence of it naming the mainstream school on E’s EHC Plan. It said it did this so E had a school place secured for September 2023. It recognised however, that in January 2023 its SEND service was considering naming a specialist school;
• an apology for not explaining to Mr D its procedure for deciding which pupils attend specialist schools. It also apologised for the delay in letting Mr D know the outcome of the specialist school placement panel in April 2023;
• an apology for general failings in its communications with Mr D, back to January 2022. It provided Mr D with further contact details for its SEND service;
• an acknowledgement that it had yet to complete E’s review following the meeting in January 2024. It said it would complete this before the end of the month.

44. In July 2024, after considering further comments from Mr D, the Council amended its response to his complaint. In this the Council clarified that it also agreed:

• it had not followed timescales following the March 2023 annual review of E’s EHC Plan;
• had previously told Mr D he would know the outcome of the January 2024 annual review by mid-March 2024.

45. In between, in June 2024, the Council issued a draft amended EHC Plan. It then issued further drafts before sending a final version in August 2024.
46. In September 2024 the Council agreed that E needed a place at a specialist school and began consultations accordingly. My investigation has not considered events beyond this time.

Events relevant to the complaint about E’s education provision

47. F’s attendance at school was good until Year 6 of their education. But from January 2023 it began to decline. I noted an email Mr D sent to the Council at the end of January saying E had missed a “few days”. But their attendance worsened quickly. In late February a local Councillor wrote to the Council and told it E was no longer attending school.
48. In early March 2023 Mrs D contacted the Council directly for advice, speaking to an officer from its virtual school service. They offered her some advice and links to services that might help Mr and Mrs D in supporting E’s attendance at school. Their note said however the school would need to contact the Council if it was to have “direct involvement”.
49. At the end of April 2023, the virtual school service received contact from E’s school, which said it was “at a loss” for how it could support E. The service gave the school some advice and again said it needed a referral to have any direct involvement.
50. In May 2023 an officer from the Council’s SEND service sent an email to both E’s primary school and their named secondary school. It noted that E “was not engaging with learning”. It said that Mrs D had showed willingness to explore online learning or tutoring and possible therapeutic support. It asked if the school had contacted the Council’s advisory teachers and asked for any guidance on how the Council might support E’s return to school.
51. E did not attend their mainstream school from September 2023 onward. The school provided E with access to an online education provider. Emails provided show E engaged with this for a brief time around October 2023 but by November this had stopped. The school then wrote to the Council asking for support from its EMSA service. By now E also had a letter provided by the local Children and Adolescent Mental Health Service (CAMHS) explaining their diagnosis.
52. The ESMA service agreed to offer support. It held a planning meeting at the end of November 2023 which involved Mr D. It said one of its teachers would visit E at home. After which it hoped they would start attending face-to-face sessions with the teacher at a site in the community. E met with the teacher and travelled once to the teaching centre but would not go inside.
53. From mid-February the ESMA service sent an officer to visit E weekly at home. They recorded a gradual increase in E’s interaction with them over time. In April 2024 a review of the ESMA provision said that E would try again to attend the teaching site in the community.
54. I note that throughout the ESMA records there is reference to E also having continued access to online learning. Records do not suggest E engaged with that.
55. The service did not record what happened next and closed E’s case in May 2024. It did not record reasons for that decision. The Council offered no evidence of further communications with E’s school, after May 2024. Nor any contacts with Mr or Mrs D to check if E received any education provision.
56. During our investigation, the Council said that it considered it took all reasonable steps to ensure E received a suitable education during the time under investigation. It said this included offering “tailored support, interest-led learning and face to face personalised tuition”. It noted limited engagement from E but said that was because of their special educational needs. It did not consider that during its involvement, E could have coped with the demands of full-time education.

Events relevant to the complaint about Children social services

57. Mr D told me that he and Mrs D first approached the Council in early 2023, enquiring about the SBLO. They looked at a local activity group, but this required parents to attend. Mr and Mrs D therefore considered the group unsuitable as it would not provide them with respite from caring for E.
58. In April 2023 Mrs D therefore got back in touch with the Council and described matters with E as at “breaking point”. It undertook a short break assessment. However, it decided E did not meet the threshold for services. It gave as its rationale that E’s primary needs were around anxiety and school refusal.
59. Mrs D got back in touch with the Children’s Services in late June 2023. It recorded her dissatisfaction at not receiving further contact from the service, although it notes also implied Mrs D knew the outcome of the April 2023 assessment. Mrs D said she and Mr D needed at least “a couple of hours” a week respite.
60. The Council decided that following the closure of the short break assessment it would now offer a child and family assessment. It recorded asking Mrs D for consent to this, and that she rang back, having spoken to Mr D and gave that consent. The Council then sent an email to Mrs D confirming it would undertake a child and family assessment. It gave her contact details if she wanted any further information about the assessment.
61. A social worker began the assessment and met with Mr and Mrs D. He then contacted E’s GP and their Occupational Therapist in line with Council policy (see paragraph 28).
62. Shortly afterwards Mr D got in touch to say he wanted the Council to cancel the “short break local offer” assessment. He said this was after he learnt the GP had recorded there was a safeguarding concern for E in May 2023.
63. The Council social worker replied, clarifying he was undertaking a child and family assessment. He said Mr and Mrs D had given consent to contact professionals working with E as part of that and there was nothing “malicious or untoward” in that. He checked if Mr D still wanted to cancel the assessment. To which Mr D confirmed he did.
64. So, the Council closed its assessment without completing it.
65. In its reply to this part of the complaint (June 2024), the Council said that its records clearly showed it had begun assessing E’s needs under Section 17 of the Children’s Act. It had also sent standard consultation forms to E’s GP and others and that it had parental consent to do this. So, it did not think it was at fault if E’s GP had wrongly recorded a child safeguarding concern.

My findings

The Ombudsman’s Jurisdiction

66. The term ‘jurisdiction’ refers to our legal powers to investigate a complaint. In this case, there were two relevant considerations.
67. The first was that of time (see paragraph 5). Mr D first made us aware of his complaint in January 2024, at the same time he complained to the Council. Part of his complaint concerned communications he had with the Council going back to January 2022. This part was a late complaint therefore, because Mr D took more than 12 months to complain to us about it.
68. I decided not to investigate this part of the complaint, focusing my investigation only on events from February 2023 when the Council issued E with a new EHC Plan. I found Mr D’s complaint mainly focused on events from that time. I did not doubt he also had some dissatisfaction with communications from the Council before February 2023. However, these were not strong enough at the time to trigger a complaint from him. And without evidence of him expressing dissatisfaction at the time, I did not consider we had good reason to investigate the Council's communications with him pre-February 2023.
69. The second consideration was that of Mr D’s potential recourse to the ‘alternative remedy’ of appeal to the SEND Tribunal (see paragraphs 6 and 7). I decided to investigate Mr D’s complaint about the Council’s decision not to amend E’s February 2023 EHC Plan to name a specialist school. This was despite him having the option of appealing this decision.
70. I exercised discretion because I considered Mr D did not use his appeal rights having formed the reasonable belief the Council would change the school named on E’s Plan. I set out my reasons for coming to this view below when I address the substantive complaint.
71. However, I took no view on the merits of whether E needed a specialist school in February 2023. That decision was one only the Council or a SEND Tribunal could take. My investigation on this point focused only on the communications the Council had with Mr D and its decision making procedure.

The Complaint the Council named a mainstream school on E’s EHC Plan and then misled Mr D into thinking it would change this

72. I could not criticise the Council for the process it followed in naming a mainstream school on E’s EHC Plan in February 2023. First, it was not at fault for how it consulted the mainstream school. It had no reason to think the school had not picked up the consultation request which it sent to a working email address. It explained that while it undertook multiple consultations around this time with the school that went unanswered, these involved multiple children and different caseworkers. So, it was unaware the school was not picking up consultation requests.
73. Second, the Council always faces a dilemma when confronted with the hard deadline of issuing an EHC Plan while waiting for a consultation response. I could see why Mr D wanted it to wait for consultation responses. But as the Council made clear in its consultation letters to schools, it could still name a school on a Plan, if it did not reply. Completing the Plan allowed all parties to prepare for September 2023 and it also gave Mr D appeal rights.
74. I understood why in this case Mr D did not use appeal rights. I did not find the Council explicitly said it would change the name of the school on E’s Plan, when Mr D challenged it on this. But its emails to Mr D described naming the mainstream school as an “interim measure” and that it was looking for “alternative provision”. These messages clearly gave Mr D reasonable cause to believe the Council would amend E’s Plan to name a specialist school. This poor communication resulted in my finding the Council at fault.
75. Because of this fault Mr D did not explore his right to appeal the EHC Plan and challenge the mainstream school named. He expected the Council would change this. So, he had his expectations raised the Council would name a specialist school for E, in line with his preference. This was an injustice.
76. There was a further communication failing around the Council’s consideration of E joining a specialist school. It has already recognised not giving Mr D clear information about the panel procedure that decided whether to offer E a place in a specialist school. It also recognised the four-month delay in letting Mr D know of the panel decision in April 2023.
77. These communication failings also caused injustice to Mr D as he did not know what had happened to the Council’s consideration of his request for E to join a specialist school. We consider such uncertainty a form of distress.

The complaints about delays in completing reviews of E’s EHC Plan

78. The Council had already recognised failing to act after the March 2023 review meeting which considered E’s EHC Plan. It was at fault for this. There had been around eleven months of delay when the next review of E’s EHC Plan took place.
79. It was further at fault for delay after the January 2024 review of E’s EHC plan. It took around six months to confirm it would amend E’s Plan and send Mr and Mrs D details of the proposed amendments. So, this was five months of delay.
80. I considered this delay caused injustice for Mr D in not knowing how the Council proposed to meet E’s needs moving forward, given the difficulties they were experiencing. Further, the delay gave Mr D no avenue of appeal to the SEND Tribunal, if he found himself disagreeing with the Council about how it planned to meet E’s special educational needs.

The complaint about education provision

81. The Council knew from the end of February 2023 that E had stopped attending school. It was in contact with Mrs D the following month and with E’s primary school in both April and May 2023. During these contacts, it gave advice to both Mrs D and the school on strategies they might use to help E re-engage with education.
82. I did not consider this sufficient to show the Council properly considered if it had a duty to step-in and ensure E had access to a full-time education or equivalent. The Council’s advice said to become further involved it needed a referral from E’s school. This was wrong. The Council should have asked if it owed a duty under Section 19 and not waited for any further contact from the school. In addition, because E had an EHC Plan, it had a duty to secure the education provision set out in their plan.
83. When the Council has evidence, as it did here, that a child is not attending education, it must ask what it needs to do to ensure that its duties are met. In not addressing this question, the Council was at fault in it how it responded to these contacts.
84. This fault continued up to November 2023 as the Council did not involve itself in any further consideration of E’s access to education until then. In between, E only accessed a small amount of online provision. At that point the Council’s ESMA service, specifically targeted at pupils with a medical reason for school absence became involved.
85. The ESMA service clearly made efforts to engage with E and met only limited success in that. But its involvement caused me further concern. First, in the delay in any officer beginning regular visits to E at home. The Council knew E could not attend its tuition site in mid-December 2023, but no officer began home visits before mid-February 2024.
86. Second, in the failure of the service to document what help, if any, it provided from mid-April 2024 onward until it closed the referral in May 2024. And to record why it closed its referral.
87. I did not do so because E had begun to re-engage with education. So, the Council’s records were silent on how it considered E’s need for support between May and July 2024.
88. So, while I found there was some engagement by the Council with its duties from November 2023 onward, I could not say this was sufficient either. It was at fault for not providing a timelier service to E, for how its ESMA service ended its involvement and for not considering E’s needs beyond May 2024.
89. All that said, I did give weight to the Council’s view that throughout the involvement of its ESMA service, E could not cope with the demands of full-time education. I considered this also applied to the periods before and after that service became involved. Because all the evidence pointed to E’s needs preventing engagement with online learning and being resistant to adult interventions whether from their parents or their schools. It was relevant to consider this when I came to think about the injustice caused to E from the Council’s fault. I could not conclude they had missed out on a full-time education solely because of that.
90. However, I considered the failure of the Council to adopt a systematic approach towards considering E’s access to education over nearly five terms of education, likely contributed to a loss of education provision during that time. I did not accept that nothing more could or should have been done to try and ensure E had some education tailored towards their needs. So that was an injustice to E.

The complaint about children’s services

91. The Council’s SBLO could not support Mr and Mrs D with services they could access. Reasonably they went back to the Council and asked it to consider how else they might access some respite.
92. It first undertook a short break assessment. I found the assessment detailed and comprehensive. So, I did not consider we could fault how the Council undertook it. The Council could have offered more reasoning for why it decided not to offer services to E. But when Mrs D expressed dissatisfaction the Council offered to reconsider, so even if I had found fault here, I considered no injustice could ave arisen from that.
93. The reconsideration took the form of offering a child and family assessment to consider if E was a “child in need” under Section 17 of the Children’s Act. I considered this fair, as this further assessment would be more comprehensive. It would also potentially open the door to more targeted support.
94. The Council clearly recorded telling Mrs D it would undertake a child and family assessment, and it put that in writing. I accept that it did not detail all that assessment would involve. But it did provide details for how Mr and Mrs D could obtain more information if they wanted to know more.
95. They could have learnt in advance therefore the assessment would include the Council consulting professionals. Although the Council says its social worker also obtained separate consent for this.
96. I considered that as with any verbal interaction, there was a possibility of misunderstanding. But I had no reason to find the Council at fault for how it set about assessing E’s needs nor what it told Mr and Mrs D about this.
97. I also checked the consultation it had with the GP and others, and its letters were clear in explaining the nature of its involvement. Nowhere did the Council give any information to any third party suggesting that it had any safeguarding or child protection concerns for E. So, it was not at fault for its communications with others.

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Agreed Action

98. The Council accepted my findings set out above, including in paragraphs 75, 77, 80 and 90 where I found fault by the Council caused an injustice to Mr D and / or E. To remedy that injustice, it has agreed that within 20 working days of this decision it will:
1. provide a written apology to Mr D accepting the findings of this investigation (see also paragraph 99);
2. make a symbolic payment to Mr D of £6000 (see also paragraphs 100 to 102).
99. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
100. I calculated the symbolic payment as follows:

• for the injustice identified in paragraph 75 - I recommended £250;
• for the injustice identified in paragraph 77 – I recommended £150;
• for the injustice identified in paragraph 80 – I recommended £600;
• for the injustice identified in paragraph 90 – I recommended £5000.

101. Ombudsman guidance suggests we will typically recommend between £900 and £2400 a term where fault by a council contributes to a loss of education provision. I gave weight to this being a significant period in E’s education as they transitioned from primary to secondary phase. So, my starting position was to consider a payment of £2000 a term. However, against this I had to take account that there were some efforts made to engage E with education while out of school. I also reiterate that I accepted the Council’s view that provision in this case was unlikely to have been full-time. On balance, I therefore considered an average sum of £1000 per term, or 50% of the starting position, fair.
102. The symbolic payment agreed replaces the previous one offered by the Council in response to Mr D’s complaint and is not in addition to it. I understand Mr D did not accept the Council’s offer of £400 and so it will make a payment to him of £6000 with no deduction for this.
103. I also wanted the Council to make service improvements as a result of this complaint. It has agreed that within three months of this decision it would circulate advice to all relevant officers in its ESMA service to ensure it keeps a clear record of the reasons for ending its involvement which must also take account of the Council’s duties under Section 19 and Section 42 of the Education Act. It said it would support this by delivering workshops to outline the importance of keeping detailed records.
104. Initially I also wanted the Council to review its current policy and procedure for pupils absent from school because of illness, exclusion or other reasons. However, the Council assured me this matter was already under review as part of a SEND improvement plan.
105. I decided against recommending any service improvement for the delays in annual reviews. This was because we have issued other recent decisions highlighting flaws in this area. We had therefore already asked the Council to improve its service to try and prevent a repeat. I considered we could not conclude those efforts had failed on the basis of this complaint given the timing of the events it covered, pre-dated those recommendations.
106. The Council will provide us with evidence it has complied with all the agreed actions above.

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Final Decision

107. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mr D and E. The Council accepted our findings and agreed to take action that I consider will remedy the injustice. So, I completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman