Summary: The Council delayed taking the action it said it would at mediation and delayed progressing an annual review of Ms X's child's Education, Health and Care Plan. These faults caused Ms X and her child frustration and uncertainty. To recognise the injustice caused, the Council has agreed to apologise and pay Ms X £250.

The complaint

1. Ms X complains the Council failed to:
• provide her child, Z, with alternative provision after Z stopped attending school in September 2023;
• complete the annual review of Z’s Education, Health and Care Plan within the legal timeframe; and
• communicate with Ms X properly about her complaints.
2. Ms X wants the Council to issue Z’s final amended EHC Plan without further delay and pay her a financial remedy for the distress she experienced. Ms X also wants the Council to pay Z a financial remedy for the education they missed.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, 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.
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 Tribunal, or 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. 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). 
9. 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(1), as amended)
10. 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

11. I have not investigated Ms X’s complaint about a lack of alternative provision for her child from September 2023. This is because we have already investigated this and made a decision about this as part of case reference 23 020 674.
12. Ms X then went on to use her mediation appeal right following the final EHC Plan issued in April 2024. So, for the reasons explained above, I have not investigated her complaint about alternative provision after April 2024 either.
13. I have considered Ms X’s other complaints in this case, which are, delays progressing annual reviews and issues with complaint handling.

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How I considered this complaint

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

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What I found

Law and guidance

Education, Health and Care Plans (EHC Plans)

16. A young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them.
17. The EHC plan is set out in sections which include:
• Section B: The child or young person’s 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 school. 

Annual reviews

18. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:
• EHC plans must be reviewed as a minimum every 12 months (para 9.166);
• within four weeks of the review meeting the council must decide whether it proposes to keep the EHC plan as it is, amend the plan or cease to maintain it, and notify the child’s parent or young person and the educational setting (para 9.176);
• if the plan needs amending, councils should start the process of amendment without delay (para 9.176);
• if amending the plan, councils must send the child’s parent or the young person a copy of the existing plan and a notice providing details of the proposed amendments, and they must be given at least 15 calendar days to comment on the proposed changes (paras 9.194 & 9.195);
• during this period, the council must make its officers available for a meeting with the child’s parent or young person on request, if they wish to discuss the content of the draft EHC Plan.
19. Within twelve weeks of the annual review meeting, the final, amended EHC plan must be issued. R (L, M and P) v Devon County Council [2022] EWHC 493 (Admin)

SEND Tribunal and mediation

20. 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.
21. The Ombudsman cannot direct changes to the sections of the EHC Plan which relate to education or name a different educational setting. Only the SEND Tribunal can do that.
22. 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.
23. A child’s parents or the young person do not have to consider mediation if their disagreement only relates to the placement named in section I or that no placement is named in section I.

North Yorkshire County Council’s complaints policy

24. The complaints policy in force at this Council when Ms X complained, said officers will:
• respond to complaints at stage one within fifteen working days, potentially extended by twenty working days for very complex cases; and
• respond to complaints at stage two within twenty working days of agreeing the statement of complaint.

What happened

25. Ms X’s child, Z, has special educational needs and has an EHC Plan.
26. Following an earlier annual review, the Council issued a draft, amended EHC Plan for Z in January 2024. Ms X disagreed with the proposed Plan and asked for a meeting to discuss her concerns.
27. Ms X said no meeting took place and the Council said it had no records to show if a meeting took place. The Council considered Ms X’s written feedback on the draft Plan instead. The Council then issued a final EHC Plan in April 2024.
28. Ms X disagreed with what was written in the final Plan and exercised her right to go to mediation. At mediation, on 30 May 2024, the Council agreed to carry out another annual review of Z’s Plan where it would consider the amendments Ms X wanted to make.
29. This annual review was held in July 2024. The school sent the Council the annual review paperwork after the meeting but not a draft, amended version of the Plan. The Council said that as the school had not sent an amended Plan, the annual review did not progress any further.
30. Ms X complained because of the delay in progressing the annual review. The Council decided to hold another annual review in early October 2024 and issued a final, amended Plan for Z just over two months later. This Plan named a setting which Ms X disagreed with, so Ms X appealed this Plan to the SEND Tribunal.
31. The Council responded to Ms X’s stage one complaint 26 working days after it received it and responded to her stage two complaint within five working days.
32. The Council accepted in its stage two complaint response that it had not adhered to the timescales agreed at their mediation meeting and apologized for this. However it said further investigation at stage two would not lead to a different outcome and declined to investigate her complaint further.

My findings

Request for meeting following draft EHCP

33. Ms X asked the Council to meet with her after it issued Z’s draft, amended EHC Plan in January 2024. On balance, the evidence supports Ms X’s account, that this meeting did not take place despite this being requested. The Code is clear at section 9.77 that councils must make an officer available for a meeting during this time if this is requested. The Council did not do this, which was fault.
34. Ms X instead went to mediation in relation to her concerns about Z’s EHC Plan. It is possible that if the Council met with Ms X, it may have negated the need for her to go through mediation proceedings. We cannot know as this depends on other factors but Ms X has been caused uncertainty and frustration on this point.

Mediation and July 2024 annual review

35. The Council said at mediation it would hold another annual review but accepted it failed to adhere to the timescales agreed at mediation. This was further fault by the Council and caused Ms X more frustration.
36. The Council said it could not progress the July 2024 annual review because the school involved had not sent the Council a draft, amended EHC Plan. The school sent the Council the annual review documents and school reports. It was for the Council to then make the decision about whether any amendments were required.
37. The Code says the Council can ask a school to hold an annual review meeting and prepare a report following a meeting with its recommendations. However the responsibility to ensure the process in completed within the statutory timeframes remains with the Council. The Council failed to progress this annual review and this was fault. This caused Ms X further frustration.

October 2024 annual review

38. The Council held another annual review of Z’s EHC Plan after Ms X complained about its failure to progress the previous review. The Council issued Z’s final EHC Plan within twelve weeks of this annual review meeting and therefore did so within the legal timeframe.

Complaint handling

39. The Council took slightly longer than the timeframe allowed for in its complaints policy, to deal with Ms X’s complaints. The Council’s delay was fault. However due to the length of delay, I do not consider that this fault caused Ms X a significant injustice.

Service improvements at North Yorkshire Council

40. The Ombudsman found similar fault and injustice in other cases this year at North Yorkshire Council. As a result, the Council agreed to take action to improve its services including:
• It would review why there had been failures to keep to agreements reached at mediation;
• It would outline improvements it is making to ensure the Council takes the action it has agreed at mediation by the given deadline;
• It would update us on action taken to prevent future delays in progressing annual reviews; and
• The Council is updating the Ombudsman on its progress and action plan for improving its timeliness and quality in complaint handling.
41. As these service improvements are already underway and were not in force at the time of the events Ms X complained of, I have not made further service improvement recommendations here.

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Action

42. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X and Z for the injustice caused by the faults in this case; and
2. Pay Ms X £250 to reflect the frustration and uncertainty she has been caused by the Council’s faults.
43. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. I find fault causing injustice and the Council has agreed to take action to remedy injustice.

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Investigator's decision on behalf of the Ombudsman