Summary: Miss X complained the Council delayed arranging a mediation meeting following its decision not to issue her child, F with an Education, Health and Care (EHC) Plan. The Council delayed arranging mediation by two months which was not in line with legal timescales. Its complaint handling was also poor. The Council agreed to apologise, make a payment to Miss X and carry out reminders to relevant staff.

The complaint

1. Miss X complained the Council delayed arranging a mediation meeting following its decision not to issue her child, F, with an Education, Health and Care Plan.
2. Miss X said the delay caused her frustration and delayed her right of appeal to the SEND tribunal.

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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 significant injustice, or that could cause injustice to others in the future 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 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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How I considered this complaint

6. I considered Miss X’s complaint and the information she provided.
7. I considered information from the Council.
8. Miss X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

9. 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.

SEND Tribunal and appeal rights

10. 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.
11. There is a right of appeal to the SEND tribunal against a decision that it is not necessary to issue a EHC Plan following an assessment.

Mediation

12. Rights to mediation are set out in the Children and Families Act (CFA) 2014. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal. They do not have to agree to attend mediation.
13. If a child’s parent or the young person wishes to discuss education issues such as a decision not to issue an EHC Plan the council must arrange for mediation within 30 days from the date the parent or young person told it they wanted mediation.

What happened

14. In 2023 Miss X asked the Council to carry out an EHC needs assessment for her child, F. We investigated delays in that process and found fault as the Council took four months longer than statutory timescales allowed to decide whether to issue F with an EHC Plan.
15. The Council declined to issue F with an EHC Plan on 19 October 2023. Miss X requested mediation the same day.
16. Miss X chased the Council for a response to her mediation request twice during November 2023 without a response. The mediation company said the delay was due to the Council providing it with available dates.
17. The Council eventually arranged the mediation meeting for the 16 January 2024. However, the mediation company cancelled that meeting and re-arranged it for the beginning of February 2024.
18. The mediation meeting took place in February 2024 however the issues were not resolved. Miss X has now appealed to the SEND tribunal which is due to hear her case in January 2025.
19. Miss X complained to the Council about the delay in arranging the mediation meeting and about the cancellation of the January meeting without explanation. The Council responded and said the case officer was unwell which meant it had to cancel the meeting. It did not know why the mediation company failed to inform Miss X of this. The Council did not provide an explanation around the initial delay in arranging mediation.
20. Miss X remained unhappy and complained to us.

My findings

21. The Council issued a decision not to issue F with an EHC Plan on 19 October 2023 and Miss X requested mediation the same day. In line with relevant law the Council should have arranged and held the mediation meeting on or before 18 November 2023. It did not arrange the initial meeting until 16 January 2024 which is a delay of two months. That was fault. Regarding the cancellation of the initial meeting, while the case officer falling ill was outside of the Council, it would have been good practice for the Council to communicate this with Miss X, given arranging mediation is its overall responsibility. The poor communication in that respect was fault, however it did rearrange the cancelled meeting in good time.
22. The initial delay caused Miss X frustration and delayed her right of appeal to the SEND tribunal which she has now used. It is disappointing the Council has continued to fail to adhere to statutory timescales in Miss X’s case following our previous findings of fault during the EHC needs assessment process.
23. Miss X’s complaint to the Council was in part about the delay in arranging mediation. However, the Council’s response did not address that concern or explain why the delay occurred. The failure to address Miss X’s complaint in full was not effective complaint handling and was fault.

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Agreed action

24. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Miss X and pay her £250 to acknowledge the frustration caused to her by the Council’s delay in arranging mediation, poor communication and the poor complaint response.
2. Remind relevant SEND staff of the duty to arrange mediation meetings in line with legal timescales for disputes around Education, Health and Care Plans.
3. Remind complaint handling staff to ensure all key points raised in a complaint are addressed in complaint responses.
25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman