Summary: Ms C complained the Council failed to complete an Education, Health and Care needs assessment and issue a final Plan within the statutory timeframes and it failed to provide her child, X, with access to suitable, full time education. We have found the Council at fault which has caused an injustice. The Council has agreed to make a financial payment to Ms C and issue reminders to its staff to remedy the faults identified.

The complaint

1. Ms C complained the Council:
• Failed to complete an Education, Health and Care needs assessment and issue an Education, Health and Care Plan for her child, X, within the statutory timeframes.
• Failed to provide X with access to suitable, full-time education when they were unable to attend school.
• Failed to communicate effectively throughout the Education, Health and Care needs assessment process.

Ms C states the delays have been detrimental to X’s wellbeing and development and has impacted her ability to work. Ms C would like X to be correctly supported to access suitable, full-time education and would like to see major improvement in process and quality of care towards special educational needs and disability (SEND) students across Leeds.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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)
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

6. I discussed the complaint with Ms C and considered the evidence she provided.
7. I made enquiries of the Council and considered its response.
8. Ms C and the Council had an opportunity to comment on the draft decision. I will considered any comments I received before making a final decision.

What I found

Relevant Law and Guidance

Education, Health and Care (EHC) Plan

9. Children with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section F sets out the child’s special educational provision and section I ‘names’ the school or type of school the child will attend.
10. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) 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:
• where a council receives a request for an EHC assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist, social care and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice;
• if the council decides to issue an EHC Plan after an assessment, it should prepare a draft EHC Plan. The council should send the draft Plan to the child’s parent or the young person and give them at least 15 days to comment. It should also send the Plan to schools that may be able to accept the child or young person and meet their needs. This should take around six weeks; and
• the whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC Plan.
11. There is a right of appeal to the SEND (Special Educational Needs and Disabilities) Tribunal about the educational provision and placement named in a child’s EHC Plan. This appeal right is only engaged once the final EHC Plan has been issued.

Access to suitable, full time education

12. 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.
13. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
14. 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)

Complaint Handling

15. The Council’s complaints policy sets out a two stage complaints process.
16. At stage one of the complaints process the Council should:
• Confirm the complaint has been received and, if possible, provide the name and contact details of the investigating officer.
• Provide a timeframe by which a response should be provided.
17. The policy states stage one complaints should receive a response within 15 working days of receipt of the complaint. If the Council cannot respond within the acknowledge timescale it should provide regular updates at least every two weeks.
18. At stage two of the complaints process the Council should acknowledge the complaint within three working days and provide a response within 15 working days. If the Council cannot provide a response within 15 working days it should send regular updates at least every two weeks.

What Happened

Education, Health and Care Needs Assessment

19. Ms C sent a parental request for an assessment of X’s education, health and care needs in February 2024. The Council responded to Ms C’s request 7 weeks later and agreed to complete an assessment. According to the statutory timeframes the Council should have completed the assessment and issued a final plan by 14 July 2023.
20. Due to the national shortage of educational psychologists X’s assessment did not take place until January 2024. The Council issued a draft plan in February 2024, however it has not yet issued a final Plan.
21. In response to our enquiries the Council has advised it is taking the following steps to minimise the impact of the national shortage of educational psychologists:
• It has a rolling advertising campaign for recruiting educational psychologists and is exploring offers with a relocation package to overseas registered educational psychologists;
• It has completed a review to ensure its educational psychologists offer is competitive;
• It is utilising associate and agency educational psychologists which means that all children and young people will have received an assessment within the next 6 months.

Access to suitable, full-time education

22. In September 2023 Ms C told the Council that X was not attending school. In the following days, X’s caseworker made a referral to the Social Communication Interaction and Learning Team and enquired about specialist support for X. This referral was not accepted due to it being sent to the wrong team. A further referral was made to the Specialist Training in Autism and Raising Standards Team however they did not assess X until February 2024.
23. The Council advised the school to provide an external tutor which would be funded by the Council however there is no evidence this was arranged.
24. Between September 2023 and May 2024, X was only able to attend 5 sessions at school. From February 2024 X has attended Medical Needs Teaching.

Complaint Handling

25. In June 2023 Ms C sent a complaint to the Council due to the Council not knowing when X would be assessed by an educational psychologist. Ms C also raised concerns the Council were not keeping her informed of the progress of X’s assessment and were failing to respond to her requests for updates.
26. The Council sent an email to Ms C 18 working days later to apologise it had not met its 15 day timeframe for issuing a complaint response. The Council did not provide a date by which it expected to issue its full response. In response to this email Ms C asked the Council to escalate her complaint to the next stage however the Council advised it would like the opportunity to provide a stage one response.
27. The Council issued its stage one complaint response at the end of July 2023. Ms C responded to the stage one response and asked the Council to escalate her complaint to stage two. The Council issued its stage two complaint response 24 working days later. It did not provide Ms C with any updates between the date of the stage two complaint being raised and issuing its response.

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My findings

Education, Health and Care needs assessment

28. The Council failed to complete X’s EHC needs assessment within the statutory timeframes due to the national shortage of educational psychologists. Following the Educational Psychology assessment in February 2024, the Council has failed to issue a final EHC Plan. This is service failure which has caused distress, uncertainty and frustration for Ms C and X.
29. The Council has a suitable plan in place and is taking steps to address the impact of the national shortage of educational psychologists.

Access to suitable, full-time education

30. The Council became aware X was unable to access suitable, full-time education in September 2023. The Council took steps to secure alternative education however, suitable, alternative provision was not put in place until February 2024, meaning X missed a term and a half of education. This is fault which caused distress, frustration and uncertainty.

Complaint Handling

31. The Council failed to follow its complaints procedure when dealing with Ms C’s stage one and two complaints. This is fault which caused Ms C distress, frustration and uncertainty.

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Agreed action

32. Within one month of the final decision the Council will:
• Apologise to Ms C for the faults identified.
• Pay Ms C £100 for every month of delay after the statutory deadline of 14 July 2023 until the date the final EHC Plan is sent to Ms C.
• Pay Ms C £1350 to recognise the lack of suitable education from September 2023 to February 2024. This is calculated at approximately £900 per term in line with our guidance on remedies. Ms C should use this money to support X to make up for the loss of education provision.
• Remind staff dealing with SEN cases that where they are aware a child is not attending school, they should consider each individual case and its Section 19 duty in accordance with relevant law and guidance.
• Remind staff dealing with complaints that they should provide responses within the policy timeframes and if there is any delay in a full response being provided, they should keep complainants updated and informed of a revised timescale.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. We uphold this complaint. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s draft decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman