Summary: Mrs F complained about delays by the Council in completing an assessment of her son G’s special educational needs, issuing an Education, Health and Care Plan, finding a suitable placement and ensuring he had a suitable education during the period of delay. We found fault with the actions of the Council. It has agreed to increase its payment to Mrs F and provide evidence of the steps it has taken to improve its procedures for the future.

The complaint

1. Mrs F complained that Leeds City Council (the Council) in respect of son, G’s special educational needs:
• delayed in completing an assessment of his needs and issuing an Education, Health and Care (EHC) Plan;
• failed to ensure the provision in the EHC Plan was put in place;
• failed to find an alternative specialist placement;
• failed to provide G with a suitable full-time education from March 2021 when he stopped attending school; and
• delayed in dealing with Mrs F’s complaint about the matter and failed to offer a sufficient remedy for the whole of the period G was without education.
2. These delays and failings have caused distress, inconvenience and time and trouble to Mrs F and a loss of education and social opportunities for G.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), 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(i), as amended)

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What I have and have not investigated

8. I have investigated the period from February 2022 when the Council was first aware that G was struggling to attend school. I consider it was reasonable for Mrs F to have complained to us sooner if she was unhappy with the Council’s actions prior to this date.
9. I have only investigated up to 18 August 2023 when Mrs F’s right of appeal against G's final EHC plan arose.

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How I considered this complaint

10. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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 found

Special educational needs

12. A child or young person with special educational needs may have an 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. 

Timescales and process for EHC assessment 

13. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement; and
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

Alternative educational provision

14. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
15. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
17. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

18. Mrs F’s son, G started secondary school in September 2020. By March 2021 he was struggling to attend due to anxiety. In January 2022 he was diagnosed with autism and the school put in place a reduced timetable.
19. In February 2022 Mrs F contacted the Council’s specialist autism team to discuss G’s difficulties in attending school. The service gave some advice on strategies to help G attend school. The team suggested G may benefit from accessing an hour a day of mentoring rather than lessons at this stage. In March 2022 Mrs F made a formal referral to the specialist team for assistance. The form said G was on the waiting list for the Child and Adolescent Mental Health Service (CAMHS) and a sleep practitioner.
20. On 16 June 2022 Mrs F requested an Education, Health and Care needs assessment. On the form she said G had not accessed any lessons since December 2021 despite the school putting lots of strategies and support in place to enable him to attend. But since February 2022 he had only been accessing one hour a day with a teaching assistant (TA). When the TA left, he didn’t attend school at all and was currently only having a 15-minute Zoom call three times a week. The school said when he had one-to-one lessons, he really enjoyed it.
21. The Council acknowledged the request on 27 July 2022.
22. In August 2022 Mrs F complained about the delay in carrying out the assessment. In September 2022 the school completed its report for the needs assessment. The school said G was not attending school, only Zoom registration sessions. It was helping G very slowly to return to school aiming for brief visits after school in conjunction with his CAMHS sessions. The aim was to get G to attend school for half a day a week.
23. On 4 October 2022 the Council agreed to carry out an assessment and obtained an Educational Psychologist’s report on 24 October 2022.
24. On 5 December 2022 the Council confirmed it would issue an EHC Plan. It did so on 15 December 2022 and Mrs F expressed a preference for a specialist school she had visited. The Council consulted with that school, but it did not respond. It also consulted with three other schools including G’s current placement. There were no recorded responses on the system.
25. The Council issued the final EHC Plan on 3 February 2023 naming G’s current school and agreed with Mrs F to continue to consult other schools. It chased a consultation response from Mrs F’s preferred school, which said in March 2023 it wanted to do an observation of G. The observation took place in May 2023.
26. One school responded negatively on 6 February 2023. Another said on 22 May 2023 that it had offered Mrs F a visit, but she had declined due to the distance from their home. Even though she understood G would probably be eligible for free transport she felt it was too far away for anyone to get to in an emergency.
27. The Council consulted three other placements in July 2023, which all refused. On 26 July 2023 Mrs F’s preferred school also declined to offer a place. On 15 August 2023 it reissued the final EHC Plan to give Mrs F a right of appeal which she used.
28. The Council has now found a place for G at a specialist placement starting in February 2024.

Formal complaint

29. On 5 May 2023 Mrs F complained to the Council about the delays and failure to find a place for G. The Council responded on 22 June 2023. It apologised for the delay in sending the response. It confirmed that G was currently attending one hourly twilight session per week at school and one hour of online tuition. It apologised for the delays in completing the needs assessment and producing the EHC Plan. It also apologised for the failure to find a more appropriate placement for G and the delays in responding to Mrs F’s communications.
30. Mrs F remained dissatisfied and escalated her complaint on 23 June 2023. She said there were a lot of apologies but no actual indication of how the Council was going to resolve the situation for G. He was only getting an hour a week of actual teaching plus an hour in school at a twilight session.
31. The Council responded at stage two of its complaints procedure on 18 August 2023. It apologised for the delays in responding to her complaint and offered her a symbolic payment of £300.
32. It acknowledged that the Council was responsible for providing G with a suitable education. It also acknowledged that there had been a delay in issuing G’s EHC Plan, a frequent change of caseworker, a failure to find a specialist placement and a minimal offer of alternative provision since March 2022 (two hours a week). It said where a young person is offered less than full-time education the Council should regularly review the provision with a view to increasing the hours as appropriate and evidence should exist that the Council has properly considered what is suitable for each child. It considered that two hours a week was not suitable.
33. It concluded that the Council should have had greater oversight of the situation and done more to ensure G received a suitable education. It apologised for this missed opportunity and offered a payment of £900 per term from November 2022 (20 weeks from when Mrs F requested an EHC needs assessment) to July 2022. This amounted to two and a half terms and a total of £2250.
34. Mrs F complained to us in October 2023.
35. In response to my enquiries the Council has said that prior to January 2023 the Council felt that the reduced timetable in place was appropriate in responding to G’s needs and presentation and was in line with the Section 19 duty that provision can be part-time if related to the physical or mental health needs of the young person. It said it felt £900 per term was appropriate as G was getting some support and year 8 was not a key year at school.

Analysis

36. I agree with the Council that it took far too long to acknowledge and complete the needs assessment, issue an EHC Plan and find a suitable placement for G. I also agree with its assessment that two hours a week was not a suitable education for him.
37. However, I disagree with its view that the injustice only arose from November 2022 when the final EHC Plan should have been issued. The Council’s section 19 duty to provide a suitable education is separate from the special educational needs process and after 15 days of absence the Council should take steps to provide an alternative education.
38. I accept the Council only knew in February 2022 that G was not attending school due to anxiety, and it was reasonable to allow a period of time for the strategies and support from the school to work. However, I do not consider it was reasonable to wait until G’s needs had been identified before considering alternative provision. I note the Council acknowledged in its stage two complaint response that the Council should regularly review any part-time education and evidence whether it is suitable for the child. There is no evidence the Council reviewed G’s situation until Mrs F complained. This was fault.
39. I consider by the start of the summer term in 2022 it should have reviewed the provision. At this point G had not made any significant progress in being able to attend school. However, the evidence shows G was academically able and Mrs F had said in June 2022 he thrived in one-to-one lessons. He just could not get into school due to his anxiety. The Council did not seek or obtain any evidence that G could not cope with education at all. So, I think the Council at this point should have considered alternative provision such as home tuition or other one-to-one settings. The failure to consider alternative provision at an earlier point meant that G missed out on another term of education.
40. I also agree that the Council delayed in responding to Mrs F’s complaints. But I consider the offer of £300 is adequate remedy for this.

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Agreed action

41. I welcomed the Council’s apologies and offer to pay Mrs F £2250 for the lack of alternative education and £300 for the delays in the complaints process. However, I considered the Council should increase this payment to include the summer term of 2022 (as explained above in paragraph 38). I recommended that the Council within one month of the date of my final decision:
• pays Mrs F an additional £900 for the benefit of G’s education (making a total of £3450); and
• explains what steps it has taken or is taking to ensure it complies with the statutory timescales in the EHC Plan process and its section 19 duty to provide alternative education.
42. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

43. I consider this is a proportionate way of putting right the injustice caused to Mrs F and G and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman