Summary: Ms A complained the Council has declined a mediation meeting about its decision not to assess her child for an Education, Health and Care Plan. We discontinued our investigation as we cannot investigate the Council’s decision as it is caught by Ms A’s appeal to the Tribunal, which the law does not allow us to consider.

The complaint

1. Ms A complains the Council refused mediation in relation to its decision not to assess her son for an Education, Health and Care Plan (EHC Plan).

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The Ombudsman’s role and powers

2. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), 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)

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How I considered this complaint

5. I have considered information provided by the Council and Ms A, alongside the relevant law and guidance.
6. Ms A and the Council have had an opportunity to comment on a draft decision before this final decision is made.

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What I found

Law and guidance

7. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent information about their right to appeal to the tribunal.

8. Councils must arrange for a child’s parents 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.
9. 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.
10. There is a right of appeal to the Tribunal against a decision not to carry out an EHC needs assessment or reassessment.
11. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
12. 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.

What happened

13. Ms A asked the Council to assess her child for an EHC Plan. In October 2023 the Council decided not to assess. The decision letter explained the application did not provide information which would lead to an assessment.
14. Ms A appealed the decision to the SEND Tribunal. A mediation meeting took place in December 2023. As a result of the mediation process, the Council offered to consider a further application from Ms A.
15. After looking at Ms A’s second application the Council again decided not to assess. It told her the second application had not provided any additional information.
16. Ms A asked the Council to arrange another mediation meeting. The Council refused to do this as there was an impending tribunal hearing which would consider its decision not to assess Ms A’s child.
17. In June 2024 the Tribunal decided the Council should carry out an EHC Plan Assessment.

What I found

18. Ms A complains after the February 2024 decision the Council has denied her right to mediation.
19. As shown above the law does not allow us to investigate any issues that could be considered by the SEND Tribunal. This includes the decision not to agree to mediation. So, we cannot investigate Ms A’s complaint about this.
20. In any event, the Council’s decision has now been considered by a tribunal. If the law allowed us to investigate, and if we found fault by the Council, there would be no injustice to Ms A as the Tribunal found in her favour.

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Final decision

21. We have discontinued our investigation on the basis the issue is too closely linked to an issue considered by the SEND Tribunal.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman