Summary: There was fault by the Council. There was delay taking Mrs X’s request for a personal budget for her child’s education to a panel and delay in telling her of the decision. There has also been delay holding an Education, Health and Care Plan annual review. A payment and issuing a new decision to give a new right of appeal to a tribunal remedies the injustice from these faults.

The complaint

1. The complainant, who I shall call Mrs X, complains the Council did not carry out the actions promised in a mediation session. Mrs X complains that her son has not had a full time education since January 2023.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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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What I have and have not investigated

5. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
6. 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.
7. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
8. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
9. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
10. I have investigated Mrs X’s complaints that the Council has not carried out the actions promised in a mediation session.
11. I have not investigated Mrs X’s complaint about the setting or quantity of education provided since January 2023. The mediation report said the Council ‘will be happy to reissue the current final EHC Plan on parental request’.
12. If Mrs X wished to challenge the quantity of education provided she could have requested the Council finalise the EHC Plan and appealed to the SEND tribunal. I have not exercised discretion to investigate this part of the complaint as I consider it was reasonable for Mrs X to appeal to the tribunal to challenge the education provided. While I understand there may have been wait for the case to be heard at tribunal, that would be the way to have resolved issues particularly if Mrs X was dissatisfied with the six hours of provision offered. It is not for the Ombudsman to say what level of provision would have been suitable for her child.

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How I considered this complaint

13. I read the papers put in by Mrs X and discussed the complaint with her.
14. I considered the Council’s comments about the complaint and any supporting documents it provided.
15. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

16. Mrs X’s son, Y, had an EHC plan that the Council issued after an annual review in November 2022.
17. The council must arrange for the EHC Plan to be reviewed 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 process is only complete when the council issues a decision about the review.
18. Within four weeks of a review meeting, the council must tell the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
19. 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). Case law sets out this should happen within four weeks of the date of the review meeting.
20. Mrs X went to a mediation session with the Council. The report of the session dated 27 January 2023 said:
• The alternative provision would provide a Pathways Stage 1 report to the Council by February half-term, and ongoing Stage reports (as and when completed).
• Team Manager agreed that as the Council has not been able to name a placement (and until the Council can name any placement), the Council will be happy to reissue the current 'final' EHCP on parental request (at any stage) to give parents fresh rights to mediation/Tribunal, as may be required.
• Team Manager agreed to make enquiries and feed back to parents on the free school meals question within 2 weeks.
21. The Pathways report was provided on 20 March 2023. The February half term would have been in mid-February 2023 so this report was about three weeks later than the timescale set out in the mediation agreement. The Council has not sent any evidence that it received ongoing reports but there was no set timescale for this.
22. The Council has said the Team Manager went off work after the meeting so the free school meals were not followed up, nor was reissuing the further EHC Plan.
23. In June 2023 Mrs X’s request for a personal education budget went to panel. The panel did not agree to the personal education budget for the items Mrs X requested but the Council did not tell Mrs X until August 2023. Mrs X did not ask at this time for the Speech and Language Therapy (SALT) provision to be carried out at home or at the alternative provision.
24. The Council upheld Mrs X’s official complaint in October 2023 and said that it would arrange for the annual review of the EHC Plan. The Council apologised for the delay in deciding if it would provide a Personal Education Budget and for not sharing the decision with her in a timely manner. The Council consulted some schools in November 2023 which declined to offer a place.
25. The Council has said the annual review was due in November 2023 but this has not yet happened. This delay is fault. The Council has said Y has been receiving six hours a week alternative provision since January 2023.
26. On 21 May 2024 Mrs X asked the Council to reissue the EHC Plan and made a request for provision to be put in place immediately. Mrs X declined the offer of an annual review of the EHC Plan. The Council issued the EHC Plan on 30 May 2024 and said it would put Mrs X’s request to panel.
27. There has been fault by the Council. There has been delay taking Mrs X’s request for a personal budget to panel and in telling her of the decision. There has also been delay carrying out the annual review of the EHC Plan in November 2023.
28. To remedy the injustice from the delay, the Council should write to Mrs X about the free school meals which it said it would do after the mediation session and make a symbolic payment of £500 for her distress and inconvenience due to the delays. I have not recommended the Council carry out the annual review as the Council wrote to Mrs X to organise it, but Mrs X declined the offer.
29. I have not recommended a payment for loss of educational provision. This is because Mrs X could have asked the Council to finalise the EHC Plan at any point from March 2023 to challenge the provision and quantity of education offered to her child by appealing to the SEND tribunal.
30. Y’s EHC Plan includes provisions to be delivered in school. Mrs X has said that she considers that part of the provision, specifically the Speech and Language Therapy (SALT), could have been delivered either at home or at the alternative provision. I have considered this point, along with another decision made by the Ombudsman supplied by Mrs X.
31. Y’s EHC Plan says ‘The SALT will need to design a social communication programme to be carried out in a quiet setting by a trained teacher/teaching assistant (TA) with up to 3 peers, twice weekly for 30-45 minutes’. This provision refers to a teacher/TA and Y’s EHC Plan names the education setting as mainstream school. So, my view is that provision cannot be separated from the other provisions in the EHC Plan when considering a remedy as it was intended to be carried out in school.
32. Mrs X asked the Council on 21 May 2024 if the SALT provision could be delivered separately and the Council is taking this request to panel. This will enable the Council to decide if the provision can be separate from now on. If the Council does not agree, Mrs X is now able to appeal the setting in the EHC Plan so there is a setting to deliver the provision named. I have not recommended a separate remedy for the SALT provision as I do not consider there is enough evidence that it could be separated from the other provision in the EHC Plan and Mrs X could have appealed to the SEND tribunal in 2023 if she considered the setting was unsuitable.

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Agreed action

33. Within one month of the date of the decision on this complaint the Council should:
• Pay Mrs X £500 for her inconvenience and distress.
• Make enquiries and write to Mrs X on the free school meals question mentioned at mediation.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed my investigation. This complaint is upheld as I have found fault by the Council. The steps recommended above remedy the injustice to Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman