Summary: Miss X complained that the Council failed to comply with outcomes agreed in mediation within statutory timeframes. She also complained that the Council delayed issuing her son’s Education, Health and Care plan. Miss X said this caused unnecessary distress, stress, frustration, and had an impact on her and her son. We find the Council at fault, and the fault caused Miss X injustice. The Council has agreed to apologise, make a payment to reflect the injustice caused, and make an improvement to its service to prevent a recurrence.

The complaint

1. The complainant, who I refer to here as Miss X, complained that the Council failed to comply with outcomes agreed in mediation within statutory timeframes. She also complained that the Council delayed issuing her son’s final amended Education, Health and Care plan.
2. Miss X said this had an impact on her and her son. She said the delay issuing the final plan meant her son did not get the right support. She said this has caused unnecessary distress, stress, frustration, and cost her time and trouble.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
7. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

8. A child’s parent can appeal to the first-tier tribunal to challenge the content of an Education, Health and Care (EHC) plan. The right to appeal is triggered once the council has issued the final EHC plan.
9. Councils must arrange mediation services to deal with disagreements about EHC assessments and plans. If parents want it, mediation can take place after they receive a final EHC plan or an amended plan.
10. The Special Educational Needs and Disability (SEND) Regulations (2014) set out timeframes for councils to complete actions agreed in mediation. These actions are recorded in writing in a ‘mediation agreement’.
11. The Regulations say that where a parent has a right to appeal the issues agreed in the mediation agreement, the council shall comply with the time limits set out in Regulation 44, as if the mediation agreement was an order of the tribunal.
12. Regulation 44 says when a tribunal has ordered a council to amend the special educational provision set out in an EHC plan, or amend an EHC plan, the council should amend in the plan within five weeks of the order being made (sections 44e and 44h).
13. The Regulations say a council does not have to comply with these time limits if it is impractical to do so for specific reasons. These reasons are:
• exceptional personal circumstances which affect the child or their parent during that period of time;
• the child or their parent is absent from the council area for a continuous period of two weeks or more during that period of time;
• the council requested advice from the head teacher or principal of a school or post-16 institution just before or when the school closes for more than four weeks continuously; or,
• the council requested advice from the person who has responsibility for special educational needs or education at an early years’ provider just before or when the school closes for more than four weeks continuously.

What happened

14. Miss X’s son, B, has special educational needs and an Education, Health and Care (EHC) plan.
15. In April 2021, the Council issued B’s EHC plan which said he would get 15 hours of support. Miss X said she would appeal the EHC plan because she thought B needed more than 15 hours’ support. Both parties agreed to mediation.
16. In June, there was a mediation meeting and a mediation agreement. The mediation agreement outlined four actions:
1. The Council would request a cognitive assessment from an educational psychologist;
2. A certain Council officer would contact B’s paediatrician;
3. The Council would update B’s EHC plan; and,
4. Miss X would scan a certain document to the Council to be included in the EHC plan.
17. Immediately after the mediation meeting and agreement, the Council increased B’s support hours to 25 hours, made a referral to the certain officer (outcome 2), and made a referral to the educational psychology service for an assessment (outcome 1).
18. Miss X chased the Council about these outcomes in June and August. In August and November, the Council chased the educational psychology service.
19. In November, the educational psychology service told the Council the assessment would be later that month. The Council told Miss X this.
20. The educational psychologist saw B in November and submitted their report to the Council at the end of December.
21. The Council issued a draft EHC plan in January 2022. Miss X complained a few days later.
22. In February, Miss X told the Council the changes she wanted made to the EHC plan. Shortly after, the Council said it would make those changes. It confirmed B’s support hours had increased. It then issued a proposed amended EHC plan.
23. Miss X told the Council she did not agree with the proposed EHC plan. She said she would contact the educational psychologist to amend their report.
24. In Mid-February, the Council responded to Miss X’s complaint. It agreed it had not complied with the statutory timescales and there had been a delay issuing B’s final EHC plan.
25. In March, B had an annual review of his EHC plan.
26. In April, Miss X complained to the Ombudsman. Later that month, the Council issued B’s final amended EHC plan.

Analysis

Mediation agreement

27. Miss X complained that the Council failed to comply with outcomes agreed in mediation within statutory timeframes.
28. I find the Council met outcomes 1 and 2 immediately after the mediation agreement. However, the Council failed to issue B’s amended EHC plan (outcome 3), which included the information outlined in outcome 4, within the timeframe. I discuss this further below.

Delay issuing the Education, Health and Care plan

29. Miss X complained that the Council delayed issuing her son, B’s, final amended Education, Health and Care plan.
30. The mediation agreement set out that the Council would amend B’s EHC plan.
31. As I have set out above, the Regulations say that where a parent has a right to appeal the issues agreed in the mediation agreement, the council shall comply with the time limits set out in Regulation 44, as if the mediation agreement was an order of the tribunal. Miss X had a right to appeal B’s EHC plan so this regulation applies.
32. Regulation 44 says when a tribunal has ordered a council to amend the special educational provision set out in an EHC plan, or amend an EHC plan, the council should amend the plan within five weeks of the order being made.
33. Therefore, I find the Council should have amended B’s EHC plan (outcome 3), which included the information in outcome 4, within five weeks of the mediation agreement. So, I find the Council should have amended B’s EHC plan in July 2021.
34. The Council failed to do this. It did not issue B’s final amended EHC plan until April 2022, after the annual review in March. This is fault.
35. The Council says it amended B’s EHC plan after it got the educational psychologist’s advice. It says it could not have amended EHC plan earlier without the advice.
36. I understand that the majority of the delay was caused by the educational psychology service, which the Council has no control over. However, the Regulations are clear about timescales. I have seen nothing in the Regulations which say the timescales can be disregarded for resources reasons.
37. I have set out the reasons why timescales may not apply, above. I do not find any of these reasons applied in this case.
38. The Council says there were no timescales in the mediation agreement to complete the actions in the agreement. It is true that there is no timescale written in the mediation agreement. However, the Regulations are clear about timescales for completing actions set out in mediation agreements in cases like this.
39. I have considered the time it took for the Council to amend B’s EHC plan after the annual review in March. I find there were no further delays to the process. However, the delay between five weeks after the mediation agreement (July 2021, when the Council should have issued B’s EHC plan) and the annual review (March 2022) is fault.
40. I find the delay issuing B’s final EHC plan did not mean B missed out on the provision that had been agreed in mediation. I find the additional hours that were agreed were put in place immediately after the mediation agreement. This is positive.
41. However, I find the delay issuing B’s final EHC plan caused Miss X injustice in that it caused uncertainty, undue significant stress, and frustration.

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Agreed action

42. Within four weeks of this decision, the Council has agreed to apologise to Miss X for the uncertainty, undue significant stress, and frustration caused by failing to issue B’s EHC plan within the timeframe set out in the Regulations.
43. Within four weeks of this decision, the Council has agreed to make a payment to Miss X of £300 to remedy the injustice caused.
44. In arriving at this figure, I have considered the Ombudsman’s published guidance on remedies. I have considered the length of time involved. I consider a payment of £300 is an appropriate and proportionate remedy for the injustice caused.
45. Within three months of this decision, the Council has agreed to remind relevant staff of the timescales for actions in mediation agreements to be completed, as set out in the Regulations.
46. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

47. I have completed my investigation and I find fault causing injustice. The Council has agreed to take action to remedy the injustice and improve its service to prevent a recurrence.

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Investigator's decision on behalf of the Ombudsman