Summary: The Council delayed taking the action it said it would at mediation to resolve a dispute with Ms X about her child’s education. This was fault. This fault caused Ms X frustration and the Council has agreed to apologise, pay Ms X £200 and take action to prevent recurrence of this fault in future. However we have not investigated the suitability of the education Ms X’s child received, because this issue carried a right of appeal to a tribunal which it was reasonable for Ms X to use.

The complaint

1. Ms X complained the Council:
1. failed to provide her child, Y, with a suitable education for several years;
2. failed to take the actions it said it would following mediation; and
3. failed to inform her of her appeal rights following its decision not to carry out a reassessment of Y’s Education, Health and Care Plan.
2. Ms X said the Council’s faults have caused her distress and caused her child to avoidably miss out on education and special educational needs provision.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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 law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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.
8. 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)
9. 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

10. I have investigated events from 22 July 2024, up to 7 January 2025.
11. Ms X has complained about a lack of suitable education for Z dating back several years. This happened more than twelve months before Ms X complained to us and there was no good reason Ms X did not complain sooner. As a result, I have not investigated these earlier events.
12. Ms X’s complaint is primarily about the mediation which took place following the issuing of Z’s final Education, Health and Care Plan on 22 July 2024. Therefore my investigation begins from 22 July 2024. Earlier events are only referred to for context.
13. Events after the Council’s final complaint response was sent on 7 January 2025 are new matters that the Council has not yet had the opportunity to respond to through its complaints process. I have not investigated beyond this date.

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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. I considered comments made by Ms X and the Council on draft decisions before making a final decision.

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What I found

Law and guidance

EHC Plans

16. 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.
17. The EHC Plan is set out in sections which include but are not limited to: 

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

18. The Ombudsman 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. 

Reassessments of EHC Plans

19. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
20. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
21. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.

Appeal rights

22. There is a right of appeal to the Tribunal about several council decisions involving EHC Plans. These include but are not limited to:

• a decision not to carry out an EHC needs assessment or reassessment;
• the 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;
• any amendment to these elements of an EHC Plan; and
• any decision not to amend an EHC Plan following a review or reassessment.

Mediation

23. 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.
24. 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.
25. If no agreement or only partial agreement occurs through mediation, the person retains their appeal right to the Tribunal.

What the Ombudsman can look at – appeal rights

26. 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)
27. 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.
28. 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.
29. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

What happened

30. At the start of the period I am investigating, Ms X’s child, Z, had been out of school, or only attending significantly reduced hours of education for some time. Ms X did not agree that the school named in Z’s Plan could meet their needs and wanted the Council to consult with and name another school.
31. The Council disagreed and issued a final EHC Plan on 22 July 2024 naming the same school, along with several forms of support in Section F. Ms X asked to go to mediation about the Plan. The mediation concluded on 13 September 2024.
32. At mediation it was agreed the Council would:
• Consult Ms X’s preferred alternative schools by 24 September 2024;
• Meet with the current school to see what alternative provision Z may benefit from and for it to do this by 24 September 2024;
• Respond to Ms X’s request for a reassessment of Z’s needs. All parties agreed it must do this by 30 September 2024; and
• It would let Ms X know the outcome of the school consultations.
33. It was not agreed at mediation that the EHC Plan should be amended. It was agreed the Council would consider other options. Ms X agreed with this way forward and obtained a mediation certificate.
34. The Council missed the deadline to consult schools by several days and it did not meet with the school to discuss possible alternative provision for Z until 9 October 2024. The Council said this was due to staff being on annual leave.
35. The Council did consider Ms X’s request for a reassessment and decided not to carry one out. However this decision was made later than the deadline agreed at mediation. It also did not put its decision in writing or inform Ms X of her right to appeal the decision. Several months later the Council reversed its decision and decided it would carry out a reassessment for Z.
36. Ms X complained to the Council in late October 2024 that it still had not completed the actions following mediation including looking into alternative provision for Z.
37. The Council responded to Ms X’s complaint at both stages in November 2024 and later in January 2025.
38. It upheld her complaints that officers delayed consulting schools, delayed meeting with the current school to consider whether Z needed alternative provision and delayed making a decision about reassessing Z.
39. However since then, it said it had met with the school and decided that the provision on offer from the current school was suitable. The Council said if she disagreed, she could use her mediation certificate to appeal to the SEND Tribunal.
40. By this time, Ms X was most likely out of time to use her right of appeal to the SEND Tribunal, as her application would have only been accepted if the Tribunal used discretion to accept a late appeal. Ms X did not contact the SEND Tribunal.
41. Ms X was unhappy with the Council’s complaint responses and complained to the Ombudsman. She said Z had been without suitable education for a prolonged period and she was frustrated the Council had not carried out the actions it said it would at mediation. Ms X said she was no longer in time to appeal Z’s EHC Plan to the SEND Tribunal but wanted the Council to name a different education placement in Z’s Plan.

My findings

Mediation actions

42. The Council has accepted it delayed taking the actions it said it would at mediation. A person’s appeal right is maintained where agreement has not been obtained through mediation. However there is no right of appeal to the SEND Tribunal in relation to delays in carrying out the agreed actions.
43. Ms X agreed with the actions outlined at mediation and so did not use her right of appeal to the Tribunal. Ms X had no right of appeal to the Tribunal over delays in carrying out these actions and by the time she learned of the delays, she was no longer within the timeframe to appeal the July 2024 Plan. As no alternative remedy was available to Ms X which it was reasonable for her to use, I have investigated the Council’s delay in carrying out agreed actions at mediation.
44. The Council has accepted it delayed taking the following actions:
• Consulting alternative schools for Z;
• Meeting with Z’s school to consider whether the school should arrange any alternative provision; and
• Deciding whether to carry out a reassessment for Z.
45. These delays were fault. In addition to these delays, the Council also failed to inform Ms X of its decision regarding Z’s reassessment in writing, along with her appeal rights if she disagreed. This was further fault. These faults have caused Ms X avoidable frustration at an already difficult time.
46. The Ombudsman found fault with this Council in another recent case for failing to carry out actions it said it would at mediation. In response, the Council agreed to use case studies to review its oversight of actions agreed at mediation. I have made a further recommendation for a service improvement following the failings in this case.

Suitable education

47. Ms X complained the Council failed to provide a suitable education for Z. During the period I have investigated (22 July 2024 – 7 January 2025) Z was not attending their school because Ms X said the provision on offer from school was not appropriate for Z’s needs and she wanted the Council to name a different school in the Plan. I cannot investigate Ms X’s complaint regarding the suitability of Z’s education, because a tribunal appeal right was available to Ms X over this issue and it was reasonable for her to use it.
48. As Ms X disagreed with the named placement, Ms X could have appealed Z’s July 2024 EHC Plan to the SEND Tribunal, without going first to mediation. Ms X instead went to mediation. At mediation, the Council did not agree to amend the Plan. It was instead agreed the Council would meet with the school and ‘consider’ whether the school should arrange alternative provision for Z and for the Council would consult Ms X’s preferred schools and let her know the outcome.
49. Mediation did not lead to the outcome Ms X was seeking, which was to have the EHC Plan amended including the placement changed. It was therefore open to Ms X again, following mediation, to use her right of appeal to the SEND Tribunal. Ms X did not use this appeal right.
50. The courts have established that we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. For this reason I have not investigated the suitability of the education Z received between 22 July 2024 and 7 January 2025. Once the Council concludes its reassessment, Ms X will have another right of appeal to the SEND Tribunal if she disagrees with the education placement named in Section I.

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Action

51. Within one month of the date of the final decision the Council has agreed to;
1. apologise to Ms X and pay her £200 to recognise the frustration she was caused by the Council’s faults.
52. Within three months of the date of the final decision the Council has agreed to:
1. use this complaint as a learning case and outline improvements it has made to ensure it takes the action it has agreed at mediation by the given deadline; and
2. remind all SEND staff that key decisions on EHC Plans, including whether to carry out a reassessment, must be communicated to the young person or the parent or carer in writing and they must be informed of any appeal rights.
53. 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.
54. The Council should provide us with evidence that it has carried out any agreed actions.

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Decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman