Council failed to complete actions agreed in mediation in relation to child’s Education, Health and Care Plan, Ombudsman finds

The woman behind the complaint, Mrs X, complained that the council failed to complete the actions it agreed in mediation in relation to her daughter Y’s Education, Health and Care (EHC) Plan. She also complained the council failed to provide a full-time education for Y since September 2022 and did not communicate with her properly.

The Omudsman's report noted that where there has been a mediation meeting and the parties reach an agreement, it must be recorded in writing. Where the agreement requires a council to take action on something, where there is no subsequent right of appeal to the tribunal on that matter, the council must take the action within two weeks of the date of the mediation agreement.

In the present case, Ms X was dissatisfied with the content of her daughter’s EHC Plan and requested a mediation meeting to discuss the content of the plan.

The meeting was held in mid-November 2023. The mediation session recorded that Ms X explained school 2 (where Y attended as a medical placement) was not meeting Y’s needs and her parental preference was for Y to attend school 3, a special needs secondary school.

Following the mediation, a written agreement was produced which included actions for the council to complete.

At the end of March 2024, Ms X complained to the council. She said the local authority had failed to complete the actions agreed in mediation for five months and Y had not received a full-time education since September 2022.

Ms X said Y was only receiving four hours of tuition per week and it was not consistently delivered and so she was not receiving a suitable education. Ms X also complained about the council’s poor communication with her.

The council responded to Ms X’s complaint and upheld it. It apologised it had not completed the mediation actions. It said it would hold an annual review meeting in a week’s time which would consider the requested amendments to the EHC Plan.

The council said it sent referrals for alternative provision to providers at the end of April 2024, and said it would provide tuition and mentoring for Y and providers would be in contact with Ms X shortly to arrange that. It said that as Y was attending school 2 when the Plan was issued, it considered provision was in place.

The following month, the council agreed 10 hours of mentoring and 15 hours of tuition with the providers and asked them to contact Ms X to arrange.

Ms X complained again to the council at the beginning of June. She said Y was still not in full time education, the council had not commissioned alternative provision and it had still not completed the actions agreed in the mediation.

Bournemouth, Christchurch and Poole held an annual review meeting of Y’s EHC Plan in mid-June 2024.

However, in response to the Ombudsman’s enquiries, the council said it did not complete the annual review process following the meeting in June 2024 due to a “lack of capacity”.

Looking at Mrs X’s complaint in relation to mediation, the Ombudsman found: “The SEND regulations and the mediation agreement stated the council should have completed the agreed mediation actions within two weeks, and so by mid-December 2023, and by this time Ms X’s right of appeal to the SEND Tribunal had expired. The Council did not consult new schools until April 2024 and did not source a new alternative provision for Y until May 2024.

“Although the council requested the information from CAMHS and school 2 in November 2023, there is no evidence it ever received a response or followed it up to gather the information it required. The council has not revisited the EHC Plan for accuracy to date, which is a delay of 15 months. All the above delay is fault and has caused Ms X frustration and leaves significant uncertainty about whether Y’s Plan accurately reflects her needs.”

In relation to Y’s EHC Plan, the Ombudsman found the council held an annual review after the mediation agreement and “failed to complete the process in line with the statutory guidance and case law”.

Further, the investigation observed that the council said it would arrange a different alternative provision for Y as part of the mediation agreement in November 2023. However, it did not do so until May 2024, which was fault.

The Ombudsman noted that the council’s failure to secure the section 42 provision that meant Y missed two terms of specialist educational provision.

To remedy the injustice caused, the Ombudsman recommended the council to:
• Write to Ms X and apologise for the avoidable frustration, uncertainty and delayed appeal rights she experienced as a result of the council’s fault and pay her £500.
• Apologise for the two terms of specialist provision Y missed between November 2023 and May 2024 as a result of the council’s faults and pay her £4,800 to recognise the same.
• Complete the outstanding annual review and provide Ms X’s appeal rights to the SEND Tribunal. If the Council decides to amend the EHC Plan it will issue the final amended Plan as soon as possible and within a further eight weeks.
• Provide evidence of the SEND officer training, quality assurance framework, manager’s reviews of mediation action and SEND team restructuring it has completed.
Bournemouth, Christchurch and Poole Council has been approached for comment.

Lottie Winson