D’s special educational needs or provide suitable alternative education while they were out of school. There was fault in how the Council followed its Education Health and Care Plan review process and considered its duties to provide suitable alternative education. This meant D missed education, which caused avoidable distress to D, and avoidable distress, time, and trouble for their parents. The Council agreed to apologise, pay a financial remedy, review relevant procedures, and issue reminders to its staff.
The complaint
Miss X complains about the Council’s assessment and review of her child D’s special educational needs (SEN) from September 2019 to December 2021. She also says it failed to provide suitable alternative education when D could not attend school during this period. Because of this Miss X says: D lost over two years of education and SEN support and their school is considering holding them back for a year; Miss X could not work as D was at home, which impacted the family financially; the family paid themselves for alternative education and social activities for D; and the family experienced stress and anxiety.
Miss X wants the Council to apologise properly, review its policies and procedures to ensure this does not happen again, and offer a more suitable financial remedy to make up for D’s lost education.
What I have investigated I investigated how the Council reviewed D’s EHC plan and arranged alternative education for them between September 2020 and January 2022.
The final section of this statement explains my reasons for not investigating the rest of the complaint.
The Ombudsman’s role and powers
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) When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) 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.
We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether a council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
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)
How I considered this complaint
I considered: information provided by Miss X and discussed the complaint with them; documentation and comments from the Council; relevant law and guidance; the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies ; and the Ombudsman’s 2016 focus report, ‘Out of school, out of mind?’.
Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I found
Education Health and Care (EHC) Plans A child with special educational needs (SEN) may have an Education Health and Care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them.
Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the Special Educational Needs and Disability (SEND) Regulations 2014.
There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parent(s)/guardian(s) must consider mediation before deciding to appeal. 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(s)/guardian(s) or a final EHC Plan has been issued.
An EHC plan is set out in sections, including: Section B – sets out the child’s SEN; Section F – sets out the SEN provision required by the child; Section I – gives the name and type of school the child will be placed in. Parent(s)/guardian(s) have the right to ask the Council to name a particular school setting in the plan. The Council must comply with this preference unless it would be unsuitable for the child, or the child’s attendance would cause issues for the setting in terms of resources or the efficient education of others. The Council must consult a school and consider its comments very carefully before deciding whether to name it in a child’s plan. (SEND Code paragraphs 9.78 to 9.80); and Section J – details any personal budget, i.e., an amount of money identified by the Council to deliver provision in the plan where the parent(s)/guardian(s) secure the provision themselves. The child’s parent(s)/guardian(s) have a right to ask for a personal budget once a council has confirmed it will prepare an EHC Plan, or during the review of an existing plan. (SEND Code paragraph 9.98) We cannot direct changes to sections B and F, or that a different school be named in section I. Only the SEND Tribunal can do this.
The Council is responsible for ensuring arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
Review of EHC Plans Councils must review EHC Plans as a minimum every 12 months. The review process enables changes to be made to the plan, so it remains relevant to the child’s needs and desired outcomes. (SEND Code paragraphs 9.166 and 9.186) A council can require a school to convene and hold an annual review meeting on its behalf. (SEND Code paragraphs 6.56 and 9.173) Within four weeks of a review meeting, a council must notify the child’s parent(s)/ guardian(s) of its decision to maintain, amend or discontinue the EHC plan. (SEND Regulations 2014 Section 20(10), and SEND Code paragraph 9.176) Where a council proposes to amend an EHC plan, the law says it must send the child’s parent(s)/guardian(s) a copy of the existing (non-amended) plan, and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (SEND Regulations 2014 Section 22(2), and SEND Code paragraph 9.194) The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEND Code paragraph 9.176) Following comments from the child’s parent(s)/guardian(s), if a council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the proposed amendments to the parent(s)/guardian(s). (SEND Regulations 2014 Section 22(3), and SEND Code paragraph 9.196) When issuing an amended EHC Plan following a review, councils must send a draft EHC Plan to the child’s parent(s)/guardian(s) and give them at least 15 days to give their views on the content. Councils must also: tell the child’s parent(s)/guardian(s) they can ask for a particular school or other institution to be named in the plan; and seek agreement of any personal budget specified in the draft plan.
Parent(s)/guardian(s) have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s amended EHC plan. The right of appeal is only engaged when the Council issues the final amended plan.
Alternative educational provision for a child out of school Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. We refer to this as section 19 or alternative education provision. (Education Act 1996, section 19).
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) 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)) The education provided by a council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA) The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (2013 Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’) 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 mind? How councils can do more to give children out of school a good education’, published in 2016; and ‘Out of school, out of sight? Ensuring children out of school get a good education’, published in July 2022.
The 2022 guidance was published after the events complained about so we would not expect the Council to have had regard to it in this case. In the 2016 guidance, we recommended councils should: consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll; consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions; decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education; 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 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.
The Council’s complaints procedure The Council’s published complaints procedure has three stages: Stage 1 Local Resolution – staff within the service complained about will try to resolve the complaint. A response should be sent within 15 working days, or an explanation and target date given to the complainant if it is likely to take longer; Stage 2 Review – a senior manager will review the complaint. A response should be sent within 15 working days, or an explanation and target date given to the complainant if it is likely to take longer; and Stage 3 Determination – the complaint is referred for consideration and a final decision by the Council’s ‘Appeals and Complaints Committee’. The ‘Senior Complaints Officer’ may decide ‘early referral to the Ombudsman’ is appropriate, without committee consideration. The procedure does not state any timescale for this stage.
What happened In September 2019, D moved to a new primary school, School A. Shortly after the school year started, D stopped attending school. Miss X told the Council D was out of school and asked it to assess their special educational needs (SEN). The Council assessed D’s needs and issued them with an Education Health and Care (EHC) Plan in April 2020, naming School A as the setting which D should be placed in.
In September 2020, School A told the Council D was still out of school and had not returned for the start of the new school year. Miss X also contacted the Council, and told it D was unable to attend School A. The Council told Miss X School A would arrange an early review of D’s EHC Plan.
The EHC Plan review took place in early October 2020, with Miss X and Council officers present. At the meeting it was decided D’s plan should be amended and noted that D had been referred to an external service, Service F. D was awaiting an assessment from Service F, which provides diagnostic assessments and advice to local services about children and young people with suspected or diagnosed Autism Spectrum Disorder. Seven weeks later the Council’s Special Education Needs and Disability (SEND) Panel met to discuss changing the named school in D’s plan, then met again to discuss this further a month later.
The Council issued the first draft of D’s amended EHC Plan in late January 2021, nearly four months after the review meeting. It shared the draft with D’s parents and with a specialist school setting, School B, which it was consulting to see if it was suitable to be named in the plan. D’s father, Mr Y, told the Council he and Miss X did not want School B to be named in the plan, and wanted other changes to the content of the plan.
In mid-March 2021, Mr Y provided more detailed comments on the draft EHC Plan, at the Council’s request. He said the family did not want D to stay in School A, or attend School B. He asked for “funding for a tutor to visit [D] at home to complete work and access education”.
Over the next three months, Mr Y repeatedly asked the Council for updates on the amendments to D’s EHC Plan. Because of this chasing, the Council arranged a meeting with D’s parents in June 2021. The Council did not keep records of this meeting so we cannot say what was discussed. However, both the Council and D’s parents said one of the agreed actions was for the Council to explore tutoring options.
Over the next two months, Miss X and Mr Y chased the Council for updates several times. This included a request from Mr Y for the Council to consider his concerns as a formal complaint.
In late August 2021, because of chasing by Miss X, the Council sent its first request to Service F to ask for a report of its assessment of D. It told Miss X it would issue an updated draft EHC Plan once it had received Service F’s report. However, it then decided to issue an updated draft pending the report, naming School A in Section I.
When the 2021/22 school year began: D was still out of school; School A told the Council it had concerns about being named in the EHC Plan because it felt the placement “clearly had not been working” as D had been unable to attend in the 2020/21 school year and had become “extremely anxious and distressed” at the prospect of attending; and Mr Y asked the Council again to consider his concerns as a formal complaint. A local Councillor also chased this on Mr Y’s behalf.
The Council acknowledged the family’s complaint in early September 2021. Over the following month the Council: selected a tutor via an agency and arranged for them to meet the family; attended a multiagency meeting arranged by Service F to discuss D’s needs; and issued its Stage 1 response to the family’s complaint.
In October 2021, Miss X identified a school which she thought would be suitable to be named in D’s EHC Plan, School C. The Council consulted School C and confirmed it was suitable to be named. During this time the tutoring arrangements fell through due to scheduling conflicts between the family and the selected tutor. The Council said it would get back to the family about rearranging tutoring.
Over a month after the Council initially consulted School C, in mid-November 2021, it shared a further draft of the EHC Plan with D’s parents and School C. A week later the Council received the report it had been waiting for from Service F, so shared this with School C. Within a week School C confirmed D could start at the school the following week, so the Council issued a final amended EHC Plan naming School C. D started attending School C in early December 2021.
In early January 2022, the Council issued its final response to the family’s complaint. Miss X came to the Ombudsman a month later.
After Miss X came to the Ombudsman, D continued to attend School C and another EHC Plan review took place, after which the Council made further changes to D’s EHC Plan.
My findings
October 2020 EHC Plan review and resulting amendments Miss X said the family did not get enough notice of the October 2020 review meeting and were not sent the relevant documentation in advance, or the report of the meeting afterwards. The Council said that, in responding to our enquiries, it gathered information from the school which revealed the school did not share the report with the family following the meeting. As described at paragraph 24, the law allows councils to delegate full responsibility for arranging a review to a child’s school. We would only find fault with a council if it was aware there were issues with how a school arranged a review and it failed to act. There was no evidence the Council was aware at the time of the issues Miss X has described, so there is no evidence the Council was at fault.
The Council failed to issue an amendment notice to the family following the review, as described at paragraph 26. This was fault. However, my view is this did not cause D or their parents any injustice. The evidence shows the Council told the family during the review meeting it would be amending the EHC Plan, and gave them opportunity following the meeting to give their views.
The evidence shows the Council failed to follow the correct process in issuing an amended EHC Plan following the review and caused unreasonable delays. I will describe the faults identified below.
Following the review, the school failed to share full review documentation with the Council. The Council asked the school for the missing information, but the school did not respond, and the Council failed to follow up on this further. I consider this was fault because the Council should have ensured it had full review documentation so it could properly consider what the amendments to the EHC Plan should be.
The Council did not consult any schools to be named in the amended plan until it consulted School B four months after the review. The family said it did not want School B to be named in the plan. Despite chasing from the family, the Council then took a further seven months to start looking at other options.
The Council was aware at the October 2020 meeting that D had been referred to Service F and was awaiting an assessment. However, it did not contact Service F to request a report until over ten months after the review meeting, and this was only because of chasing by Miss X. I accept both the family and Service F told the Council it should not issue the amended EHC Plan without Service F’s report. However, the Council had a statutory duty to finalise the report. Its duty was to D, not their parents or Service F. Had the Council formally requested the report earlier, if Service F had failed to respond to a formal request, the Council could have considered whether it should privately commission the report from elsewhere. Either way, if necessary to meet statutory timescales, the Council should have issued a final amended plan without the report to trigger the family’s right to appeal this to the SEND Tribunal.
As outlined in paragraphs 44 and 45, there was a five-month period where Miss X and Mr Y had to repeatedly chase the Council for updates. The Council did not keep them properly updated or respond to their queries in good time.
Miss X said the Council did not consider the family’s request that it include a personal budget in D’s EHC Plan. When Mr Y contacted the Council in March 2021, as described at paragraph 43, he asked for funding for a tutor. The Council failed to properly respond to Mr Y, so he continued to chase this over the next three months, resulting in the June 2021 meeting. The Council said it had no record the family asked for a personal budget at any point but accepted this “may have been discussed when tutoring was discussed” at the June 2021 meeting. On the balance of probabilities, I am satisfied that the family asked for a personal budget for a tutor at this meeting. The Council did not keep a record of the actions agreed at this meeting and has accepted it failed to follow up properly on any actions.
The faults described in the above paragraph all contributed to the significant delay in the Council issuing a final amended plan. I am satisfied that from the point the Council decided to amend the plan at the October 2020 review it had accepted School A was not a suitable placement. From this point it should have acted promptly to consult other school settings and relevant professionals from whom it needed reports. As described at paragraph 27, councils should start the amendment process “without delay” so a final plan can be issued as soon as possible.
In response to our enquiries the Council said D’s parents added to delays by repeatedly asking for changes to the draft plans and refusing to have School B named in the plan. Councils should work with parents to agree the plan and accommodate reasonable requests for changes where possible. However, the Council had a statutory duty to D, not their parents. In line with the SEND Regulations and SEND Code, councils must issue the final plan within a reasonable timeframe so its contents can be appealed to the SEND Tribunal if there is an ongoing disagreement. The delay in issuing a final amended plan caused D and their parents distress because it meant the family could not appeal to the SEND Tribunal. There also remains uncertainty about whether D would have been able to start at School C sooner had there not been delays in the process. The Council should act to remedy this injustice.
Alternative education while D was out of school Paragraphs 31 to 35 set out the steps a council must take when a child is out of school for any reason. D was out of school from September 2019 to December 2021. As explained in paragraph 3, I have only investigated whether the Council ensured there was suitable alternative education for D for any education missed from September 2020 onwards.
In responding to our enquiries, the Council provided evidence of contact between School A and D’s parents while they were out of school. The evidence shows the Council: asked School A for this evidence of alternative education retrospectively, to inform its response to the family’s complaint; contacted School A once to check D was receiving alternative education during the time they were out of school, in November 2020 when it “recommended” the school should send work home; and did not take any other steps to ensure School A was providing alternative education while D was out of school. It also did not check whether any alternative education was suitable for their age, ability and aptitude, or special educational needs as set out in their April 2020 EHC Plan.
The Council started to explore tutoring options for D in September 2021, after repeated chasing by D’s parents. After the tutoring arrangements fell through due to scheduling conflicts, the Council said it would look into this further but did not contact the family again about arranging an alternative. Six weeks later the Council finalised D’s amended EHC Plan and School C agreed a date for D to attend.
In response to our enquiries, the Council said: the COVID-19 pandemic contributed to its failure to secure alternative education for D because “in usual (non-pandemic) circumstances alternative arrangements would be made quickly for a child not attending a school, however [D] received their plan during the pandemic when the majority of students were not attending school and were having work sent home to complete there. Following a return to school we found an increased number of children did not return and experienced increased anxiety so [D] was considered within this context”; and “[D]’s parents did not complain about the impact of having [D] at home… we understood that [D] was doing work and attending activities with their parents” and the Council had an “assumption that [D’s] parents were accepting of the situation and relatively content to continue, in effect, ‘home schooling’ their child”.
I do not accept the reasons the Council has provided and consider it was at fault because: D stopped attending school in September 2019, well before the first COVID-19 school closure, and did not start attending again until well after COVID-19 restrictions had ended. For the period of missed education I have considered, the Council still had an absolute duty to provide suitable alternative education for all children out of school, regardless of COVID-19 restrictions; the Council knew, in September 2020, that D was out of school. My view is it accepted School A was not suitable when it agreed to amend the plan at the October 2020 review, and search for other placements. However, there is no evidence the Council considered its duties to provide D with suitable alternative education; and there is no evidence the family expressed a preference to provide elective home education to D. Indeed, if they had I would have expected to see evidence the Council had assured itself this was being carried out properly in line with its statutory duties. I do not consider it relevant whether the Council considered D’s parents were content to have C at home. It still should have taken steps to assure itself D was receiving a suitable education and there is no evidence it did. Also, in the Council’s Stage 2 response to Miss X’s complaint it accepted, “we did not meet our statutory duties and as a result [D] has not been accessing appropriate education”.
The evidence from School A shows it sent worksheets to Mr Y for D to complete ten times between November 2020 and September 2021, of which around half were completed and returned to the school. D did not receive alternative education while out of school which was equivalent to full time or accounted for their SEN as set out in their April 2020 EHC Plan. Therefore, the Council’s failure to meet its duties meant D missed a significant period of education. The Council should act to remedy the injustice caused for the period I have considered, from September 2020 to December 2021.
Complaint handling After Mr Y asked for his concerns to be considered as a formal complaint, the Council did not do so until two months later. This was only after Mr Y complained again and asked a Councillor to chase this on his behalf. After it accepted the complaint, the Council took two months to consider it at Stage 3 of its procedure. I am satisfied this was longer than it should have taken, particularly given it decided to issue its final response without committee consideration. This was fault which meant the family spent unnecessary time and trouble pursuing their complaint, further compounding the delays and frustration they had already experienced. The Council should act to remedy this injustice.
As described at paragraph 38, the Council’s published complaints procedure does not set any timescales for Stage 3. I consider this is fault, because it has the potential to lead to complaints, such as Miss X’s, taking many months to investigate and complainants not knowing how long they should wait. Our view is that all complaint stages should have realistic timescales set out and the Council’s policy fails to do this.
Agreed action
As set out in our Guidance on Remedies, where we find fault has resulted in a loss of educational provision, we usually recommend a payment of between £200 and £600 a month to recognise the impact of that loss. In this case I consider a remedy of £400 for each month of missed education during the period I have considered to be appropriate, based on the following considerations: for the period considered D was in years 4 and 5 of primary school. As set out in our Guidance on Remedies, we would not usually consider this to be a significant period in a child’s school career, as we would for say, the first year of compulsory education; School A provided some alternative education to D, but it was minimal and there is no evidence the Council considered and decided this was suitable; and during their time out of school D was also without the SEN support specified in their April 2020 EHC Plan, including access to a specialist support assistant.
Within one month of my final decision, the Council will: apologise to D and their family for the faults identified; and pay the family a total of £5,800 comprising of: £4,800 to recognise the 12 months of education D missed while they were out of school from September 2020 to December 2021 (accounting for school holidays), intended for D’s future educational benefit; £500 to recognise the avoidable distress caused to D’s parents; £200 to recognise the avoidable distress caused to D; and £300 to recognise the unnecessary time and trouble spent by D’s parents in bringing the complaint.
Within three months of my final decision, the Council will: review its procedures for EHC Plan reviews and issue reminders to relevant staff to ensure that following review meetings it: obtains full review documentation from the school setting to inform any amendments to the plan; issues the amendment notice within the correct statutory timescales; approaches and consults school settings proposed to be named in the plan in good time; approaches and consults relevant professionals in good time where it needs a report from an external service; properly records, considers, and responds to requests for a personal budget to be included in the amended plan for any provision the young person or their parent(s)/ guardian(s) wishes to arrange directly; issues the final amended plan within statutory timescales; keeps the young person or their parent(s)/ guardian(s) updated, responds to their queries, and follows up on any agreed actions in good time; and recognises and responds properly when a young person or their parent(s)/guardian(s) want to make a complaint.
review relevant procedures and issue reminders to relevant staff to ensure that when it is aware a child is out of school for any reason, it meets its duties under Section 19 of the Education Act 1996 to secure them suitable alternative education; and review its complaints procedure, provide a copy of any revised policy to the Ombudsman, and issue reminders to relevant staff to ensure: each stage of its procedure has clear timescales associated with it; and it responds to complaints within published timescales.
Final decision
I have completed my investigation. There was fault by the Council which caused D to miss education. The faults also caused avoidable distress to D and their parents, and unnecessary time and trouble for D’s parents. The Council agreed to our recommendations to remedy this injustice, review relevant procedures, and issue reminders to its staff.
Parts of the complaint that I did not investigate I have not considered events before September 2020, including whether: the Council followed the correct process in producing D’s first Education Health and Care (EHC) Plan finalised in April 2020; the April 2020 (EHC) Plan was suitable and met D’s needs; and the Council provided suitable alternative education for D for any education missed between September 2019 and September 2020 As described at paragraphs 8 to 10, the law says we cannot investigate, unless we decide there are good reasons to do so: events which happened more than 12 months before somebody complained to us; and complaints where someone can appeal to a tribunal. The SEND Tribunal is an independent expert body whose decisions are binding on the Council.
Miss X complained to us in February 2022 so we would usually investigate events from February 2021 onwards. I decided the delays by the Council in finalising D’s EHC Plan after the October 2020 review were good reason to go back to September 2020, when the Council decided it would review the plan. However, I have not considered events before this because: between April 2020 (when the Council issued D’s first EHC plan) and September 2020 (when the Council agreed to review D’s EHC plan) the Council had named School A in D’s EHC plan. If Miss X disagreed with the Council’s decision to name School A in the plan, she had the right to appeal this decision to the SEND Tribunal. The Council explained these appeal rights when it issued the plan. I am satisfied it would have been reasonable for Miss X to have appealed, so I cannot consider any education D missed because of the Council’s decision to name School A; and for events before April 2020, I am satisfied Miss X could have complained about these events sooner and there are no good reasons to consider them now.
I have also not considered whether the final EHC Plan issued in December 2021 was suitable and met D’s needs, or any other events after the Council issued its final complaint response in January 2022. Miss X’s complaint was about the review process and delays in finalising the December 2021 amended EHC Plan. Again, although there were delays, the family had the right to appeal to the SEND Tribunal once the plan was finalised and were informed of this right by the Council. I consider it would have been reasonable to expect them to use it. I have not considered the further EHC Plan review that took place after Miss X came to the Ombudsman, because this did not form part of Miss X’s complaint to the Council. We cannot consider any concerns which the Council has not had opportunity to respond to first.
Investigator's decision on behalf of the Ombudsman