Summary: Ms X complained the Council failed to complete the actions it agreed in mediation in relation to her daughter Y’s Education, Health and Care Plan. Ms X also complained the Council failed to provide a full-time education for Y since September 2022 and did not communicate with her properly. The Council was at fault and as a result Ms X was caused frustration and uncertainty and Y missed out on two terms of special educational provision. The Council will apologise to Ms X and pay her £5,300 to recognise the injustice caused to them both and provide evidence it has improved its service.

The complaint

1. Ms X complained the Council failed to follow the statutory timescales in issuing an Education, Health and Care (EHC) Plan for her daughter, Y, in 2023 and did not complete the actions agreed in mediation in relation to that Plan. Ms X also complained the Council failed to provide a full-time education for Y since September 2022 and did not communicate with her properly. Ms X said that as a result Y missed out on education which affected her mental wellbeing and health, and Ms X had been unable to work as Y has not been in school. Ms X wanted the Council to retrain its staff, improve its service, provide Y with an appropriate education and provide them both with financial recompense.

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The Ombudsman’s role and powers

2. 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)
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. I have investigated events from August 2023 until Ms X complained to us in August 2024.
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. I have not investigated what happened prior to August 2023 which includes Ms X’s complaint about a delay in the EHC needs assessment process. This is because this is a late complaint and there are no good reasons to investigate it now.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant legislation and guidance

Education, Health and Care Plan

10. 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. 
11. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

Provision

12. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
13. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Reviews

14. 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 annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
15. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

Mediation

16. 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.
17. Where there has been a mediation meeting and the parties reach an agreement, it must be recorded in writing. Where the agreement requires a council to take action on something, where there is no subsequent right of appeal to the tribunal on that matter, the council must take the action within two weeks of the date of the mediation agreement. A different timescale can be made if all parties agree in writing. (Special Educational Needs and Disability Regulations 2014, Section 42)

What happened

18. Y is of secondary school age and lives at home with her mother Ms X. Y has special educational needs (SEN) that means she requires support with communication, social skills and her emotional wellbeing.
19. Prior to the period under investigation Y was on roll at school 1, a mainstream secondary school. Y struggled to attend school 1 due to her SEN and the Council arranged for Y to attend school 2 as an alternative provision while remaining on roll at school 1. School 2 provides education for children who cannot attend mainstream for different reasons. It has medical placements and SEN placements. Y attended as a medical placement.
20. The Council issued an EHC Plan for Y at the end of August 2023. It said she needed to learn in a small group, in a quiet, peaceful, nurturing and flexible classroom setting with fewer students. The Plan said Y should attend a local authority maintained special school, but did not name a school. It said Y required:
• a programme to support problem solving in relation to emotional and social interactions;
• talking based therapeutic intervention;
• a mentor; and
• weekly one to one with someone trained in emotional literacy.
21. The Council said it consulted a number of schools for a placement for Y. In September 2023 school 2 said it could meet Y’s needs. It said if the Council agreed and confirmed the placement it would move Y from a medical placement to a SEND placement.
22. Ms X was dissatisfied with the content of the EHC Plan and requested a mediation meeting to discuss the content of the Plan including sections F and I. The meeting was held in mid-November 2023. The mediation session recorded that Ms X explained school 2 was not meeting Y’s needs and her parental preference was for Y to attend school 3, a special needs secondary school. Following the mediation a written agreement was produced which included actions for the Council to complete:
• consult specialist settings including school 3 as parental preference;
• revisit Y’s EHC Plan for accuracy in sections B, C, E, F, I and K;
• contact the children and adolescent mental health service (CAMHS) for additional and up to date information for Y and school 2 for its input; and
• source a new alternative provision for Y after consulting with Ms X and Y.
23. The records show the Council sought additional input from school 2 and from CAMHS at the end of November 2023. Ms X’s representative reminded the Council it had not contacted Ms X and no new alternative provision had been arranged for Y.
24. A team around the family (TAF) meeting was held to discuss Ms X’s concerns that school 2 could not meet Y’s needs and discuss ongoing educational provision at the beginning of December. School 2 said it felt it could meet Y’s needs, but Ms X and Y felt the school was not suitable. School 2 said pastoral support was available for Y in school and Ms X explained support was needed to get Y in to school. The Council said it would consider an alternative provision mentor to support Y to reintegrate back into school 2.
25. Ms X reminded the Council at the end of February 2024 that it had not completed the mediation actions and Y had not attended school since mid-December 2023.
26. Ms X complained to the Council at the end of March. Ms X said the Council had failed to complete the actions agreed in mediation for five months and Y had not received a full-time education since September 2022. Ms X said Y was only receiving four hours of tuition per week and it was not consistently delivered and so she was not receiving a suitable education. Ms X also complained about the Council’s poor communication with her. Ms X said it was impacting on Y’s mental health and education and Ms X was unable to work as Y was at home.
27. The Council allocated Y a new case officer in April. They met with Ms X and school 2. Afterwards the officer confirmed they had sent consultations to specialist settings and completed a referral for tuition and mentoring for Y for 10 hours of each per week. They said they would check if the information requested from school 2 and CAMHS in November had been received.
28. The Council responded to Ms X’s complaint and upheld it. It apologised it had not completed the mediation actions. It said it would hold an annual review meeting in a week’s time which would consider the requested amendments to the EHC Plan. It said it sent referrals for alternative provision to providers at the end of April 2024. It said it would provide tuition and mentoring for Y and providers would be in contact with Ms X shortly to arrange that. It said that as Y was attending school 2 when the Plan was issued, it considered provision was in place and was sorry that was not successful. It apologised for the difficulty in communication and the delays.
29. At the end of May the Council agreed 10 hours of mentoring and 15 hours of tuition with the providers and asked them to contact Ms X to arrange.
30. Ms X complained again to the Council at the beginning of June. She said Y was still not in full time education, the Council had not commissioned alternative provision and it had still not completed the actions agreed in the mediation.
31. The Council held an annual review meeting of Y’s EHC Plan in mid-June 2024.
32. The Council responded to Ms X’s further complaint at stage two and said it:
• Should have issued the EHC Plan naming school 2 and it would remind the case officer to do so.
• Agreed section F of Y’s Plan was not specific and measurable. It said it had put in a new quality assurance framework and SEND officer training on writing section F to improve this. It said section F in Y’s amended EHC Plan following the annual review would be improved.
• Had not ensured the actions in the mediation agreement were completed. It would review its process and ensure managers meet with case officers one week after mediation actions are agreed to make sure they were being done.
• Apologised for high turnover of case officers which affected its communication with Ms X. It said it was restructuring its SEND team to make sure it had permanent staff in post to improve its case management and communication.
33. In August 2024 Ms X complained to us.
34. In response to my enquiries the Council told me it did not complete the annual review process following the meeting in June 2024 due to a lack of capacity.
35. The Council told me that it consulted school 2 for a placement for Y in August 2023 and it said it could meet Y’s needs, therefore the Council was assured the provision in Y’s EHC Plan was in place for her.

My findings

Mediation actions

36. The SEND regulations and the mediation agreement stated the Council should have completed the agreed mediation actions within two weeks, and so by mid-December 2023, and by this time Ms X’s right of appeal to the SEND Tribunal had expired. The Council did not consult new schools until April 2024 and did not source a new alternative provision for Y until May 2024. Although the Council requested the information from CAMHS and school 2 in November 2023, there is no evidence it ever received a response or followed it up to gather the information it required. The Council has not revisited the EHC Plan for accuracy to date, which is a delay of 15 months. All the above delay is fault and has caused Ms X frustration and leaves significant uncertainty about whether Y’s Plan accurately reflects her needs.

Education, Health and Care Plan

37. The Council held an annual review after the mediation agreement and failed to complete the process in line with the statutory guidance and case law. It should have told Ms X of its decision to amend or maintain the EHC Plan within four weeks of the review meeting in June 2024 and issued an amended final EHC Plan within a further eight weeks, and provided Ms X’s appeal rights. The Council’s failure to do so is fault and has caused Ms X frustration.
38. The faults identified in the two paragraphs above prevented Ms X from appealing to the SEND Tribunal since the EHC Plan was first issued in August 2023. The Council agreed to actions to change the EHC Plan in mediation in November 2023, and so Ms X did not appeal to the SEND tribunal. When it became clear the Council was not going to revisit the content of the Plan as agreed, Ms X had to wait for her right of appeal against the Council’s decision to either maintain the EHC Plan, or to issue an amended EHC Plan following the annual review. As the Council did not complete the annual review process, Ms X was not able to appeal to the Tribunal.

Education and specialist provision

39. The Council arranged for Y to attend school 2 as an alternative provision before the period of this investigation. The Council said it would arrange a different alternative provision for Y as part of the mediation agreement in November 2023. It did not do so until May 2024 which was fault. The Council’s failure to secure the section 42 provision meant Y missed two terms of specialist educational provision.
40. The Council said it considered it had secured the section 42 provision for Y as it consulted with school 2 in August 2023 and it said it could meet Y’s needs. I am not persuaded by that for the following reasons:
• That explanation is not supported by the evidence as the EHC Plan the Council issued did not name school 2 as the school Y should attend in August 2023. It stated Y should attend a mainstream school, which school 2 was not.
• There is no evidence the Council confirmed to school 2 that it was responsible for Y’s provision following its response to the consultation and that Y should move from a medical placement to a SEND placement.
• The Council agreed to arrange a different alternative provision for Y in November 2023, and to provide a mentor in December 2023.
• The Council was informed in November 2023, December 2023, February 2024 and March 2024 that Y was not attending school 2 and no provision was in place for her.

Communication

41. The Council accepted its communication with Ms X was poor and was caused by high staff turnover and so I have not investigated that point further. The poor communication was fault and caused Ms X frustration. The Council has apologised and I have made a further recommendation below.

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Action

42. Within one month of this decision the Council will:
• Write to Ms X and apologise for the avoidable frustration, uncertainty and delayed appeal rights she experienced as a result of the Council’s fault and pay her £500 to recognise the same.
• Apologise for the two terms of specialist provision Y missed between November 2023 and May 2024 as a result of the Council’s faults and pay her £4,800 to recognise the same. Ms X should use this for Y’s educational benefit as she sees fit.
• Complete the outstanding annual review and provide Ms X’s appeal rights to the SEND Tribunal. If the Council decides to amend the EHC Plan it will issue the final amended Plan as soon as possible and within a further eight weeks.
• Provide evidence of the special educational needs and disabilities (SEND) officer training, quality assurance framework, manager’s reviews of mediation action and SEND team restructuring it has completed as set out in paragraph 32.
43. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
44. The Council will provide us with evidence it has complied with the above actions.

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Decision

45. I find fault causing injustice. I have recommended actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman