I'm appealing because I'd like an independent school named in section I of my child’s EHCP. I'd like to send my child to the school and pay the fees whilst I wait for the appeal. If successful, will the SEND Tribunal order my LA to pay me back?

Generally speaking, no. With long waits for SEND Tribunal hearings, it is understandable you may wish to do this, however it is important your decision is made with the knowledge the SEND Tribunal is highly unlikely to order your LA to refund you for this type of cost, even if your appeal is successful.

Unlike in other areas of law, the general rule in a SEND Tribunal appeal is "no costs", meaning SEND Tribunal orders are not generally ended with a direction for one party to pay another’s costs.

A party can apply for something called a “costs order”, but the circumstances under which the SEND Tribunal can make one are limited - the other party would have to have behaved extremely unreasonably. However, just because one party is successful in a case does not mean it was unreasonable for the other party to defend it - a party is entitled to defend a weak case.

Costs orders are therefore the exception rather than the rule and in our experience are rare. 

Where the SEND Tribunal does see fit to make a costs order, it is able to order costs which are “incidental to” the appeal. We would typically expect this to mean costs which are directly associated with appealing, such as legal fees or the cost of a witness attending the appeal hearing. There is currently no case law to tell us whether costs “incidental to” a SEND Tribunal appeal could include the type of costs you have asked about.

However, existing case law does tell us that when deciding whether to order costs, the SEND Tribunal can only consider conduct during the appeal itself and not any conduct which occurred before the appeal was registered. This means the simple fact your LA decided not to name the school in the EHC plan in first place would not warrant it being ordered to pay you back, even if the SEND Tribunal decides this was the wrong decision and orders the school to be named.

Could I complain to the LGSCO, to see if it will recommend for me to be reimbursed?

No, the Local Government and Social Care Ombudsman (LGSCO) would not be able take on a complaint of this kind. As explained on its website, the LGSCO cannot deal with complaints about issues which can be appealed to the SEND Tribunal, or about issues which have already been appealed.