Summary: Miss X complained the Council failed to uphold the terms of a mediation agreement in relation to her child’s Education, Health and Care Plan. We have found fault by the Council through delay in amending the Plan and failing to ensure home tuition was provided. The Council has agreed to apologise and make a payment to acknowledge the distress caused to Miss X and the loss of education provision to her child.

The complaint

1. The complainant, Miss X, complains the Council failed to uphold the terms of a mediation agreement reached in December 2024. In particular, the Council said it would provide an amended Education, Health and Care Plan with agreed changes and make a referral for home tuition until it found a specialist school placement. Miss X says her son has missed education provision between December 2023 and June 2024.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
6. 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)
7. 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

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. Miss 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

Legislation and guidance

Education, Health and Care plans

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. 

Maintaining the EHC Plan

11. 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)  

Mediation

12. 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.

Appeal rights

13. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• 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;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

Application of the Ombudsman’s jurisdiction

14. 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)
15. 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.
16. 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.
17. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started;
• support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

18. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

What happened

19. The following is a summary of key events. It does not include everything that happened.
20. The Council sent a final EHC Plan to Miss X for her son dated 11 September 2023. This named a suitable mainstream setting.
21. Miss X attended mediation about the EHC Plan in early December 2023. The outcome of the mediation included the following agreed actions:

• the Council was to make changes to the EHC Plan that Miss X had suggested (these were noted on the plan and circulated ahead of the meeting)
• additional changes were agreed to section B which were discussed at the meeting
• changes were agreed to section F to state the support outlined in the EHC Plan would be provided by a learning support assistant or member of the pastoral team
• Miss X would send the Council recent correspondence from CAMHS and the Council would update section G to reflect this advice
• the Council would send a copy of the updated EHC Plan to reflect the above changes to Miss X by 18 December 2023
• Miss X would send the Council a list of special schools she wanted consulted
• the Council would make a referral for home tuition to be put in place in the interim

22. Miss X did not appeal the EHC Plan dated 11 September 2023 as she considered the mediation addressed her concerns. I am satisfied it was not reasonable to expect Miss X to have used her right of appeal in these circumstances.
23. The Council did not receive any information from Miss X in relation to CAMHS and so this was not included in the final EHC Plan. The Council completed consultations with the schools requested by Miss X until an offer was made.
24. The Council issued the final EHC Plan dated 3 June 2024. This included the amendments agreed at the above mediation. The EHC Plan named a specialist school.
25. Miss X appealed the EHC Plan in relation to the named school placement and requested a different named specialist school.
26. Any dispute about the content of the EHC plan including the named school placement is for the SEND Tribunal and is caught by the restriction outlined at paragraph 14 above.
27. In responding to the Ombudsman, the Council has acknowledged that although a referral was made to its home tuition provider following the mediation meeting this did not result in any tuition being provided. This meant Miss X’s son remained without any education provision during the period December 2023 to June 2024. The Council says it is reviewing its practice in this area.

Analysis

28. The Council has accepted it did not ensure the home tuition agreed at the mediation meeting in December 2023 was put in place. We would expect the Council to comply with what was agreed at mediation and ensure the necessary arrangements were put in place. This is fault. There was also a delay in the Council issuing an amended EHC Plan.
29. I am satisfied Miss X’s son missed out on education provision during the period December 2023 to 3 June 2024. Miss X will also have suffered distress and uncertainty and a frustrated right of appeal.
30. The EHC Plan dated 3 June 2024 named a specialist school and Miss X has appealed this plan. In these circumstances, if a parent chooses not to send their child to the named school in the meantime, the Council does not have to provide an alternative. This means I cannot look at the loss of provision from 3 June 2024 to the outcome of the Tribunal.

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Action

31. The Council has agreed within one month of my final decision to:
1. apologise to Miss X for the fault identified in this decision statement;
2. pay Miss X £500 to acknowledge her avoidable distress, uncertainty and frustration;
3. pay Miss X £1,000 to acknowledge her son’s missed provision for the period December 2023 to June 2024; and
4. issue guidance to relevant staff to ensure that referrals for home tuition are monitored to confirm the provision is put in place.
32. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman