Summary: The Council was at fault in that it did not fulfil the terms of a mediation agreement it had signed. It was also at fault in that it delayed in carrying out an annual review of child Z’s Education, Health and Care Plan. It was at further fault in the handling of Mr and Mr Y’s complaint. The Council agreed to apologise for the injustice caused.

The complaint

1. Mr X complained, on behalf of Mr and Mr Y, that the Council did not adhere to a mediation agreement that it signed in July 2024 following the issuing of their child, Z’s, final (amended) EHC Plan in May 2024. Mr X also complained that the Council delayed in carrying out an annual review of Z’s EHC Plan in late 2024/early 2025.
2. Mr X said the Council’s faults meant that Mr and Mr Y were prevented from appealing the content of Z’s May 2024 Plan. Further, he said Z could not take their GCSEs as planned, and that will have a significant impact on their future academic opportunities. He said the Council’s faults have also impacted the family’s mental health. Mr X wants the Council to remedy the harm caused to the Y family by its faults.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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.
5. 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)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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)
8. 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

9. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance. I discussed the complaint with Mr X on the telephone.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I have and have not investigated

11. Mr X complained to the Ombudsman in July 2025. The complaint to us included that the Council had failed to provide Z with a suitable education between 2018 and 2023. Mr X said this meant Z could not take their GCSEs as planned.
12. 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). The complaint about Z’s provision from 2018 to 2023, and any consequence of that, is late.
13. I have not seen good reasons why it could not have been brought to us sooner and so I will not investigate it.
14. The start date of my investigation is the mediation meeting of July 2024.

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What I found

Legislation, policy and guidance

EHC Plan 

15. 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. 

Appeal rights

16. 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;
• Amendment to these elements of an EHC Plan;
• Decision not to amend an EHC Plan following a review or reassessment;

Mediation

17. 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.

Actions following mediation

18. The Special Educational Needs and Disability (SEND) Regulations 2014, section 42, state:

“(1) This regulation applies where mediation has taken place and the parties to the mediation reach an agreement, to be recorded in writing (“the mediation agreement”).

(2) Where the mediation issues in the mediation agreement are those on which the child’s parent or young person has a right to appeal to the First-tier Tribunal, the local authority shall comply with the time limits set out in regulation 44, as if the mediation agreement were an order of the First–tier Tribunal.

(3) Where the mediation agreement requires the local authority or responsible commissioning body to do something in relation to which the child’s parent or young person has no right of appeal to the First-tier Tribunal, the local authority or responsible commissioning body must do that thing within two weeks of the date of the mediation agreement.”

Reviewing EHC Plans

19. 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. Following the review meeting the council must issue a decision to either amend, maintain or cease to maintain 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) 
20. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
21. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

What happened

22. This section sets out the key events in this case and is not intended to be a detailed chronology. I have not investigated events before July 2024, which are included for background only.
23. The Council issued a final (amended) EHC Plan for Z in May 2024. Mr and Mr Y had chosen not to comment on, or suggest amendments to, the draft version of that Plan. Mr Y requested mediation. A mediation meeting took place in mid-July. The matters discussed were:
• Z’s progress in English,
• Gaps in Z’s learning linked to illness and attendance over several years, and
• Whether the school’s end‑of‑year report adequately reflected Z’s needs and progress.
24. No amendments to the EHC Plan were suggested at the meeting, and the mediator noted that Mr Y repeatedly raised historic issues.
25. The mediation agreement that resulted from that meeting included two actions:
• The Council to “discuss with school the latest end of year report particularly around parents’ concerns re: English and any future actions/changes”, and
• “Once this has been done, [Council] to set up a dispute resolution meeting inviting school and parents to attend to discuss possible changes to the EHC P[lan]”.
26. The Council contacted the school the day after the mediation meeting, asking for its views on the matters set out at paragraph 23. In mid-September, Mr X submitted a complaint to the Council about its delay in progressing the terms of the mediation agreement.
27. The Council did not receive a response from the school and chased it in late September. The school confirmed that additional intervention sessions were already in place for Z in English, maths, science and history.
28. The Council passed this information to Mr Y, and asked him to annotate the current EHC Plan with his proposed changes. Mr Y replied that he only wanted to correspond about the proposed dispute resolution meeting.
29. The Council wrote to Mr Y in early October. This response was sent at stage 1 of the Council’s complaints procedure in response to an April 2024 complaint about matters that pre-date this investigation. However, the Council’s response included that the Council had decided that a dispute resolution approach “may not lead to a productive or satisfactory outcome for all parties involved”.
30. In mid-November, the school emailed Mr Y to advise that it would hold Z’s annual review meeting in early December.
31. Mr Y responded that he would not agree to an annual review until:

• The proposed dispute resolution meeting had taken place; and
• “Errors and omissions” in the previous version of Z’s EHC Plan had been resolved.

32. The Council responded promptly, directing Mr Y to its letter of early October, and reiterating “we do not deem this course of action [dispute resolution] to be suitable. We have no intention of pursuing it further”. It agreed to amend the factual inaccuracies in Z’s EHC Plan and noted that Mr Y had a copy of the Plan that he could annotate with comments as required. It recommended that he attend the annual review meeting.
33. Mr X complained to the Council in early December that it had not adhered to the mediation agreement. The Council responded, reiterating that it did not intend to arrange a dispute resolution meeting.
34. In response to concerns that Mr and Mr Y had lost faith in the school, the school postponed the annual review meeting to early January 2025. It later amended the purpose of that meeting to an “emergency placement review meeting”.
35. The emergency placement review meeting took place (the Council did not attend). The school told the Council that the placement would continue, and that Mr Y had agreed to add his input to the current version of Z’s EHC Plan. The school chased Mr Y for comments from late January onwards but did not receive any.
36. The school rescheduled the annual review for late February. In early February, Mr Y requested it be postponed.
37. Mr X wrote to the Council in late February, complaining that the Council’s refusal to arrange dispute resolution was in breach of the SEND regulations. The Council responded in mid-March, re-stating its position that a dispute resolution approach “may not lead to a productive or satisfactory outcome for all parties involved”. It also said that it had not yet carried out the annual review because the school was awaiting Mr and Mr Y’s comments on the current EHC Plan.
38. Mr X wrote to the Council again in early April, saying that the school was aware of Mr and Mr Y’s views. They did not consider it necessary to provide their written comments in advance of the annual review meeting. Mr X said this should not prevent the annual review from taking place, and any proposed amendments could be discussed during that meeting.
39. The Council contacted the school in mid-April, asking it to arrange the review meeting. The annual review was rescheduled for June 2025.
40. The day before the annual review, Mr X asked the Council to escalate Mr Y’s complaint to stage 2 of the Council’s complaints procedure.
41. The annual review meeting took place in mid-June.
42. The Council responded to Mr X in late June. It refused to escalate the complaint to stage 2 because it was more than three months after the stage 1 response of early October.
43. Mr X approached the Ombudsman in late July.
44. The Council issued a final (amended) EHC Plan for Z in late October 2025.

My findings

Mediation and appeal

45. Mr Y complained that the Council failed to adhere to the mediation agreement that it signed in July 2024, and that this prevented him from appealing the content of Z’s May 2024 Plan. The Council carried out the first action included in the mediation agreement (to discuss Z’s end of year report with the school), but did not complete the second (to set up a dispute resolution meeting).
46. I find the Council was at fault in that it did not fulfil the terms of the agreement it had signed at the mediation meeting, which is a breach of Section 42(3) of the SEND Regulations. This caused Mr Y frustration in that the matters discussed at the mediation meeting remained unresolved. However, I find this fault did not prevent Mr Y from appealing to the Tribunal. That is because the matters that were discussed at the mediation meeting, included at paragraph 23, were not matters that could be appealed to the Tribunal.

Delay in annual review process

47. The Council carried out an annual review of Z’s EHC Plan in December 2023. The next review should therefore have been carried out in December 2024, with the Council issuing the resulting final (amended) Plan by March 2025. The Council issued a final (amended) Plan for Z in October 2025.
48. One of the reasons the Council gave for delaying the review was that Mr and Mr Y declined to comment on the existing EHC Plan in advance of the meeting to review it. However, the SEND Regulations do not include that a child’s parents must provide their comments in advance of the annual review, and so this was not a good reason to delay.
49. This delay was fault, that caused Mr and Mr Y uncertainty about the content of Z’s amended EHC plan for a period of seven months.
50. However, I find that Mr Y contributed to his own injustice in that he initially refused to agree to the annual review, and later requested the meeting be postponed. Mr Y said he would not discuss a 2025 Plan until the 2024 Plan had been amended to his satisfaction but, as an EHC Plan is a forward-looking document, there would have been no value in amending the content of the 2024 Plan during 2025. The changes Mr Y wished to make (such as updating that Z had now had a major operation, rather than that being something planned for the future) could have been discussed as part of the 2025 review.

Complaint handling

51. The Council was at fault in its handling of this complaint.
52. The Council first advised Mr Y that it would not arrange a dispute resolution meeting in its complaint response of October 2024. The wording of that explanation (included at paragraph 29) was unclear, causing Mr Y confusion as to the Council’s intent.
53. The Council was also at fault in refusing to consider Mr Y’s complaint at stage 2, in June 2025. That is because:
1. The stage 1 response of October 2024 did not specify that the Council had a three-month time limit for escalating complaints;
2. Mr Y sent his late-February 2025 complaint to the Complaints Resolution Team, to which the Council had told him to direct any stage 2 complaints; and
3. Mr Y’s representative was in regular contact with the Council, expressing Mr Y’s ongoing dissatisfaction about matters that the Council had dealt with at stage 1. The Council could have chosen to respond to these matters at stage 2 at any time.
54. The Council’s faults caused Mr Y loss of opportunity to have his complaint considered at stage 2 and put him to the time and trouble of escalating his complaint to the Ombudsman.

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Action

55. Within one month of my final decision, the Council has agreed to apologise to the Y family for the frustration, uncertainty, confusion, loss of opportunity and time and trouble caused by the faults I have identified throughout my investigation.
56. 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 above.
57. The Council should provide us with evidence it has complied with the above actions.

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Decision

58. I find fault causing injustice. The Council has agreed action to remedy injustice.

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Investigator's decision on behalf of the Ombudsman