Summary: Mrs X complained about the Council failing to meet statutory timeframes when finalising her child’s education, health and care plan, failing to communicate with her properly and its failure to attend mediation sessions. The Council acknowledged it was at fault and it has agreed to remedy the injustice caused.

The complaint

1. Mrs X, the complainant, complains the Council has:
• Failed to communicate with her effectively;
• Failed to attend mediation on at least two occasions;
• Provided her with incorrect information which led her to paying £3000 for private assessment of her daughter’s needs; and
• Failed to abide by the statutory timeframes when finalising her son’s education health and care plan following the annual reviews.

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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. 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)
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 SEND Tribunal in this decision statement.
5. 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)
6. 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

7. I have not investigated Mrs X’s disagreement with the contents of Y’s EHC Plan because this is a matter for the SEND Tribunal to consider.
8. I have not investigated Mrs X’s concerns about the Council not providing alternative provision to her daughter, Z, when she was unable to attend school because the documentation I have for this investigation does not demonstrate the Council has had an opportunity to address Mrs X’s concerns through its complaints procedure.

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How I considered this complaint

9. I considered Mrs X’s complaint and the information she provided.
10. I considered the information I received from the Council in response to my enquiries.
11. Mrs X and the Council has the opportunity to comment on a draft of this decision. I considered the comments received before making this final decision.

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What I found

Relevant law and guidance

12. 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. 
13. 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 take place. The process is only complete when the council issues a decision about the review.
14. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
15. 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.
16. 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.
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.
18. 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.

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What happened

Mediation sessions

19. Mrs X was unhappy with the contents of her son’s, Y’s, EHC Plan and accepted the Council’s offer of mediation. A mediation session was arranged for 12 June 2023. Mr and Mrs X attended the sessions. The Council did not attend and did not let the mediators know in advance that a representative from the Council would not be attending. The mediators tried to contact the Council on two occasions but received no answer. It was decided to end the session and arrange another to allow the Council to attend. Mr and Mrs X agreed to this.
20. A further mediation session was arranged for 27 June 2023. The Council did not attend and again, it did not let the mediators know of its non-attendance. The mediator attempted to contact the Council several times but there was no answer. The session was ended and Mr and Mrs X did not agree to a further mediation session.
21. The Council says it contacted the mediators after the first session and apologised the council officer could not attend due to sickness. The Council was unable to provide me with any explanation as to why it was unable to attend the second session.
22. Mediation in the EHC Plan process exists to allow early resolution of disagreements and can avoid unnecessary stress and expense. For the Council not to partake in this important process is significant fault. It caused inconvenience and frustration on both occasions, and resulted in a lost opportunity to resolve the areas of disagreement.
23. For the Council not to attend on two consecutive occasions and not let the parents or mediators know about their non-attendance in advance is significant fault. The Council has offered a £200 financial remedy for the avoidable distress this caused but I do not consider this sufficiently remedies the injustice caused.

Obtaining a private assessment of Mrs X’s daughter’s needs

24. Mrs X says she paid for a private assessment of her daughter, Z, based on the incorrect advice and information she received from a council officer. Mrs X says she was led to believe that booking a private assessment for Z sooner would result in a formal diagnosis more quickly. On receipt of new information, Mrs X was of the view the assessment was not necessary because a formal diagnosis did not support her wishes for Z to attend a particular setting.
25. As part of its investigation, the Council discussed this element of Mrs X’s complaint with the relevant council officer who states she did not recommend a private diagnosis because the Council is not an advisory service. The Council reviewed email correspondence between Mrs X and the relevant council officer and found Mrs X was not given incorrect or incomplete advice. The Council did not uphold this complaint.
26. I have not seen evidence of the advice Mrs X was given but she tells me it was in a telephone call with a council officer. Due to the absence of evidence, I am unable to make a finding on this element of Mrs X’s complaint.

Finalising Mrs X’s son’s Education Health and Care Plan

27. Mrs X complains the Council delayed in finalising her son, Y’s, EHC Plan following an annual review meeting that was held on 25 November 2022. A draft EHC Plan was sent to Mrs X in March 2023. The Plan was finalised on 1 September 2023. This was a delay of seven months and it is fault.
28. The Council upheld this complaint and apologised to Mrs X and provided feedback to relevant council staff in order to improve practices. However, there was another review held on 13 December 2023 where the EHC Plan was not finalised until 31 July 2024. This was a delay of 21 weeks and it is fault.
29. The delays in issuing the final EHC Plans have delayed Mrs X’s appeal rights, caused a significant period of uncertainty and frustration. Mrs X’s frustration was exacerbated by the delays that followed the December 2023 review after the Council had said it would take action to improve its service.

Communication with Mrs X

30. Mrs X complained the Council would often take a long time to respond to her enquiries or sometimes not respond at all.
31. The Council upheld this complaint because it had not responded to Mrs X’s correspondence in accordance with the team’s policy of five working days and a financial remedy was appropriate for the avoidable distress this had caused. However, the Council did not specify within the Stage 1 response what the financial remedy for the avoidable distress was. Two months later, the Council contacted Mrs X to advise her of the financial remedy.

Complaint handling

32. Mrs X says the Council took several months to respond to her initial complaint.
33. The evidence shows Mrs X submitted her complaint on 6 February 2023 and on 13 July 2023 it apologised for the delay in responding but it was unable to provide Mrs X with a timeframe for a response.
34. The Council did not send its Stage 1 response until 26 September 2023. This was a delay of over six months. This is fault.
35. The fault caused frustration and a period of uncertainty because the complaint was about the delay in receiving the amendments notice and a final EHC Plan for their son, Y. Also, there is no evidence within the Stage 1 response the Council apologised for the significant delay in responding and it said it would provide a financial remedy for the injustice caused but failed to specify what that remedy was. This is likely to have caused further frustration to Mrs X and meant she had to contact the Council regarding the remedy, which could have been avoided.
36. I consider the injustice is significant enough to warrant a remedy.

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Agreed action

37. The Council offered Mrs X a financial remedy of:
• £100 for general lack of communication causing avoidable distress;
• £200 for two missed mediation sessions causing avoidable distress; and
• £100 for time and trouble due to the delay in responding to the initial complaint.
38. Mrs X has not accepted this remedy offer from the Council.
39. I have reviewed the remedy offered by the Council and considered the Ombudsman’s Guidance on Remedies. I do not consider the Council’s offer adequately remedies the injustice caused to Mrs X and her family.
40. To remedy the injustice caused by the faults identified above, the Council has agreed that within four weeks of this final decision, it will:
• Apologise to Mrs X for the faults identified above;
• Pay Mrs X £250 for the delay in responding to her initial complaint, the time and trouble this caused and the failure to send a full and comprehensive Stage 1 response);
• Pay Mrs X £100 for the general lack of communication;
• Pay Mrs X £400 for the avoidable distress caused by failing to attend two mediation sessions and the missed opportunity this resulted in;
• Pay Mrs X £700 for the delay in issuing Y’s final EHC Plan following the review in 2022.
• Pay Mrs X £500 for the delay in issuing Y’s final EHC Plan following the review in 2023.
41. I did not recommend any service improvements because the Council had already agreed to undertake work on improving the EHC Plan process and its complaint handling on the Ombudsman’s recommendation in another case.
42. The Council will provide us with evidence it has complied with the above actions.

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Final decision

43. The Council is at fault and it has agreed to remedy the injustice caused. Therefore, I have completed my investigation and closed this complaint. re is evidence of fault that caused injustice to Mrs X and her family.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman