Summary: Mrs X complained the Council reneged on an agreement made at mediation in relation to the social care provision in her daughter, Ms D’s, Education, Health and Care (EHC) Plan. She also complained the Council should have provided support to Ms D on the mornings she attends college to ensure she leaves the house. On the evidence seen so far, the Council was not at fault.

The complaint

1. Mrs X complained the Council:
• reneged on an agreement regarding the social care element of her daughter, Ms D’s, Education, Health and Care (EHC) Plan; and
• failed to properly consider whether Ms D needs social care support in the mornings to support her in getting ready to attend college.
2. Mrs X said that as a result, Ms D has missed out on support she needs and her education has suffered.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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.
5. If we are satisfied with a council’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)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

7. I spoke to Mrs X and the Council.
8. I made enquiries of the Council and considered the information it provided. This included Ms D’s EHC Plan, a copy of the information submitted by Mrs X prior to the mediation meeting, the mediation minutes and complaints correspondence.
9. I considered the Special Educational Needs (SEN) Code of Practice 2015.
10. I wrote to Mrs X and the Council with my draft decision and will consider their comments before I make my final decision.

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What I found

Education, Health and Care Plans

11. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section H contains information about the social care support the child requires. The Ombudsman cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
12. There is a pilot scheme which enables a SEND Tribunal to consider the health and social care provision and make recommendations. However, the SEND Tribunal will only consider these cases if the special educational provision sections of the EHC Plan are also being appealed. Mrs X was unable to appeal to the SEND Tribunal because her complaints related only to the social care aspects of Ms D’s EHC Plan.

Mediation

13. The SEN Code of Practice 2015 states parents and young people can request mediation about the social care elements of an EHC assessment or Plan. They must tell the council about the matters on which they wish to go to mediation. The council must arrange for mediation between them and the parent or young person. Social care professionals invited to the mediation must attend and should be sufficiently senior to be able to make decisions during a mediation session.

What happened

14. Mrs X’s daughter, Ms D, has special education needs. She has an EHC Plan. The Council reviewed this in 2020 and proposed amendments. Mrs X was unhappy with the amendments and the Council’s lack of communication with her and in July 2020, a mediation meeting was held to discuss and attempt to reach agreement on them before the Council issued the final amended EHC Plan.
15. Prior to the meeting, Mrs X provided details of the issues she wished to discuss. This included the following:

"We would also like some kind of support for [Ms D] - practical/emotional support on the days she is due to attend [college] to enable her to leave home; and/or transport to be provided. [Ms D] tends to find it very difficult to get up in the mornings. If transport can be provided, [Ms D] may respond better to this if she knows someone is coming to collect her".

16. The Council sent an Education Officer to represent it at the mediation meeting. As well as authority to make decisions about education, the Officer also had the authority to make decisions about transport to college. Mrs X says that when asked by the mediation service representative if they had the authority to make decisions on behalf of the Council on all the matters to be discussed at the meeting and specifically support for Ms D in the mornings, the Education Officer say they did.
17. The mediation service representative drew up an agreement after the meeting. In relation to the social care element, it stated “[The Education Officer] agrees that the SEND Team at the local authority will liaise with social care to identify the wording to be added to Section H [of Ms D’s EHC Plan for] the provision for [Ms D] to support her in the mornings getting ready for college”.
18. The Council issued Ms D’s final amended EHC Plan in August 2020. Section H made no reference to the provision of support for Ms D in the mornings to get ready for college. Instead it stated “[Ms D] currently has a child in need plan. Her allocated social worker will continue to work closely with [Ms D] to devise and implement safety strategies”.
19. Mrs X complained to the Council. She said it had agreed at mediation to include social care provision to help Ms D in the mornings to get ready for college, but had then failed to include this in her EHC Plan.
20. The Council said the Education Officer agreed to liaise with social care over the wording in Ms D’s EHC Plan, as specified in the agreement document following mediation. The Council went on to say “The request for additional Social Care provision is not a matter that would have been able to be settled at Mediation as there was no Social Care representation. Hence [the Education Officer] would need to liaise with Social Care services before any consideration could be given to amending Section H… [the Education Officer] liaised with … [Ms D’s] social worker, who advised on 12th August 2020 that they would not be providing support for mornings”.
21. The Council quoted the decision from Social Care which stated “Social Care is providing one to one engagement from a family Support Worker… to support with routine and boundaries implementation that will enable [Ms D] to manage her self-care needs… Social Care cannot provide a one-to-one support worker to motivate and assist [Ms D] to wake-up in the morning and to attend school three days a week. This task is down to the parents to undertake to support their children’s educational and other developmental needs”.
22. Mrs X remained unhappy and complained to the Ombudsman.
23. During my investigation, the Council provided me with the following information:

“We discussed the request/suggestion made by parents for one-to-one support in a person coming to the family home to support [Ms D] to get her up and ready for college with [Ms D] and parents. At the time, it was agreed by [Ms D] and parents that a more independent plan would be beneficial, and for any plan to start at a slower pace and to be flexible”.

24. In her response to my draft decision statement, Mrs X disagreed with the comments made by the Council in paragraph 23. She said that the discussion around putting a more independent plan never took place.

My findings

Authority of the officer who attended the meeting

25. The SEN Code of Practice states that where a parent requests mediation, the Council should ensure the officers who attend are senior enough to make decisions about the matters the parent wish to discuss.
26. Mrs X believes the wording she submitted clearly indicated there was a social care element which she wished to be determined. The Council had a different view. It considered this was a matter which could be addressed as a transport issue and therefore sent an officer who had authority to make this type of decision. Both interpretations were valid. There was no fault in the Council’s actions.

Matters agreed at the meeting

27. 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. Sometimes it is not possible to make a decision even on the balance of probabilities.
28. Mrs X is unhappy because she says she was told by the Council at mediation that it would provide Ms D with social care provision on the three days she went to college to get her out of bed and into college. The Council denies it said it would do this. It says it put other support in place with the agreement of Mrs X and Ms D with the aim of encouraging Ms D to attend college.
29. The mediation meeting notes are not sufficiently in depth to provide details of the specific support agreed. Mrs X clearly believes the officer agreed to her request for morning support. The officer equally denies making this agreement. Even on the balance of probabilities I cannot say what happened. Therefore, I will not investigate this matter further.
30. And even if I did investigate and find fault, correspondence from social services makes it clear that had one of its officers been present at the meeting, it is unlikely they would have agreed to the provision Mrs X wanted. Therefore, Ms D would not have experienced an injustice because it is unlikely that provision would have been agreed by the Council.

Social care provision

31. Ms D's Plan was reviewed in 2020, but this did not lead to the inclusion of provision placing a duty on the Council to provide support in the mornings before college. This is what led to the mediation meeting. Following that meeting, the Council remained of the opinion that provision was not required. In making that decision, it took the views of Mrs X and its officers into account. It explained why it considered the current support was suitable. Its decision not to provide support in the morning was made without fault. Therefore, I will not question the decision itself.

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Draft decision

32. On the evidence see so far, there was no fault in the Council’s actions. Subject to further comments by Mrs X and the Council, I intend to complete my investigation.

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Investigator's decision on behalf of the Ombudsman