The Investigation

The complaint

1. Mr X complained the Council significantly delayed assessing his child for an Education, Health and Care (EHC) Plan and during this time, failed to keep in contact with him or provide key updates.

2. Mr X said because of the Council’s faults, he has been caused frustration, distress and has had to leave his job and home school his child, which has impacted the family financially.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

4. 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)

5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

6. 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 report.

7. Under our information sharing agreement, we will share this report with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Relevant law and guidance Education, Health and Care Plans

8. A child or young person with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. Eligible children and young people can have an EHC Plan from the ages of 0 to 25.

Education, Health and Care needs assessments

9. To decide whether a child needs an EHC Plan, councils will carry out an EHC needs assessment.

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 needs 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 needs assessment it must decide within 6 weeks whether to agree to the assessment;

• a council should decide if it will issue an EHC Plan within 16 weeks of the request for an assessment; and

• the whole process from the point an assessment is requested until a final EHC Plan is issued must take no more than 20 weeks.

11. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes but is not limited to:

• the child’s educational placement;

• medical advice and information from health care professionals involved with the child; and

• psychological advice and information from an educational psychologist.

12. Those consulted have a maximum of 6 weeks to provide the advice.

13. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan, or about the content of the final EHC Plan. An appeal right only arises once a decision not to assess, issue or amend a Plan has been made and sent to the parent or a final EHC Plan has been issued.

Compulsory school age

14. A child becomes of compulsory school age after the age of 5. This is either on 3 December, 31 March or 31 August in the Reception year. Reception class

children have no right to alternative provision if they are unable to attend school, until they reach compulsory school age.

Elective home education

15. Parents have a right to educate their children at home (Section 7, Education Act 1996). There is non-statutory guidance setting out how this type of home education should be approached by councils (Elective Home Education, Departmental guidance for local authorities, April 2019 and updated again in August 2024).

16. Councils do not regulate home education and the primary responsibility remains with the parent. However, the 2019 and 2024 guidance say councils have a social and moral duty to ensure that a child is safe and being suitably educated.

How we considered this complaint

17. We have produced this report following the examination of relevant files and documents and an interview with the complainant.

18. The complainant and the Council were given a confidential draft of this report and invited to comment. All comments received were considered before the report was finalised.

What we found

Background

19. We have found fault in several other cases involving this Council, for its significant delays in carrying out EHC needs assessments. In many of these cases, the delays were due to a shortage of educational psychologists. This is because without input from these professionals, councils cannot produce EHC Plans for children and young people.

20. Since those Ombudsman investigations, this Council has increased its pool of educational psychologists and has been working through its backlog of EHC needs assessments by prioritising the most urgent cases. Y’s application was assessed under this new system.

Key events

21. Mr X requested an EHC needs assessment for his child, Y, on 2 May 2023, as Y presented as having special educational needs. Y would reach compulsory school age on 31 August 2024. Y was not attending a nursery.

22. The Council decided to assess Y on 13 June 2023 and put out a request for advice from educational psychologists on the same day. An educational psychologist should have provided their advice to the Council within 6 weeks of the request, but none provided advice by this deadline.

23. Mr X informed the Council in July 2023 that Y had been diagnosed with a neurodevelopmental condition and sent it the diagnostic report. The Council acknowledged this. Mr X emailed the Council again asking for an update in August 2023 and did not receive a response for several months. When the Council did respond it apologised for the poor communication.

24. The Council agreed Y needed an EHC Plan. It should have issued their final EHC Plan by 19 September 2023, but this timescale was not met. Mr X complained to the Council about the delay. The Council responded to say this was due to the ongoing shortage of educational psychologists. It apologised and set out steps it was taking to manage its backlog of EHC needs assessments.

25. Mr X emailed the Council’s elective home education team on 11 January 2024 to say he was still awaiting an EHC Plan for Y. Mr X said Y had a neurodevelopmental condition and was non-verbal. He said Y needed a specialist school placement if they were to start school in September that year and due to Y’s needs, if they did not have an EHC Plan by then, Mr X would behome-schooling Y.

26. An educational psychologist assessed Y in early April 2024 and said Y needed a specialist school placement, several forms of additional SEN support and to be taught in small group settings. The Council received the educational psychologist’s recommendations on 5 April 2024. The Council sent a draft EHC Plan to Mr X for his comments on 9 May 2024.

27. In May 2024 the Council consulted Mr X’s preferred specialist school, School A, to see if a place was available for September. In the same month, School A replied to say it could not offer a place for that year as it was at capacity but could provide a place to Y from September 2025.

28. The Council told Mr X that a different specialist school had availability for a September 2024 start but Mr X declined this. Instead, he decided to home school Y for that academic year so Y could start at their preferred school the year after.

29. After the Council received the educational psychologist’s recommendations, it took the Council a further 19 weeks to produce a final EHC Plan for Y. The Council did not send this EHC Plan to Mr X until another month later, on 18 September 2024. In total it took the Council 72 weeks to issue a final EHC Plan for Mr X’s child.

30. The final EHC Plan said in Section I (placement) that Y would start at their preferred specialist school from September 2025. In Section F it listed several forms of support Y would access and this was school-based. The EHC Plan said for the September 2024/25 academic year, Mr X had elected to home educate Y, and his parents were making suitable alternative arrangements through home schooling.

Leeds City Council - EHC needs assessments delays

31. We noticed in this case that the cause of the delay for Mr X and Y was not solely due to the difficulties the Council had obtaining the educational psychologist’s report. Once the Council received the educational psychologist’s recommendations, it still significantly delayed in considering them and issuing an EHC Plan for Y. We asked the Council to provide us with more detailed data around its delays.

32. To meet the 20-week timescale from the date of assessment request, to issuing an EHC Plan, councils should be working to issue EHC Plans within approximately 6 to 10 weeks of receiving an educational psychologist’s report. This will vary depending on what progress the council has already made towards the EHC Plan deadline at that time.

33. Between 1 March 2024 and 28 February 2025, this Council issued 791 EHC Plans for children and young people following an EHC needs assessment. Of these:

• only 34 were issued within 10 weeks of receiving the educational psychologist’s advice;

• 98 were issued within 20 weeks of receiving the educational psychologist’s advice (inclusive of figure above); and

• 177 were issued within 30 weeks of receiving the educational psychologist’s advice (inclusive of figures above).

This means the majority (614) were issued more than 30 weeks (7 months) after the educational psychologist’s advice was provided.

Conclusions

Fault

34. When delays arise because of the shortage of educational psychologists, rather than inaction by a council, this is service failure. However, when councils have the information needed to write an EHC Plan and still allow the case to drift, this is fault (maladministration).

35. The Council should have taken no more than 20 weeks to conclude its EHC needs assessment for Y. The Council instead took just over 16 months (a year and 4 months). There was a delay of 36 weeks due to the difficulties obtaining an educational psychologist’s report. This was service failure by the Council.

36. However, it then took the Council a further 19 weeks to finalise Y’s EHC Plan after it received the advice from the educational psychologist. The Council let this case drift and this was fault.

37. The Council also failed to send Mr X key updates and respond to his emails during this time, which was further fault.

Injustice to Y and Mr X

38. Mr X has been caused a prolonged period of frustration and uncertainty. In line with our remedies for this type of fault and injustice, we have recommended Mr X be paid £100 for each month outside the statutory timescales that the Council took to issue Y’s EHC Plan.

39. The Council’s faults did not lead to missed provision for Y. This is because Y was not of compulsory school age until September 2024. There was a specialist school available to Y from September 2024 which Mr X declined, instead deciding to home educate Y. However, Mr X and Y have been caused uncertainty about whether Y would have been able to attend their preferred school a year sooner if not for the Council’s significant delays in this case.

40. The Council’s poor communication during this process caused further frustration and uncertainty to Mr X.

Wider injustice

41. The Council’s data shows us that these delays are commonplace, with the Council routinely taking more than 7 months after it receives educational psychology reports to produce final EHC Plans. This is on top of the significant delays already caused by the shortage of educational psychologists.

42. EHC Plans are documents which set out children and young people’s special educational needs and the support they need to meet them in their education setting. The Council’s significant and widespread delay in producing these documents is fault. This fault is likely to have caused injustice to hundreds of other families.

Recommendations

43. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

44. In addition to the requirements set out above, within one month of the date of this report, the Council has agreed it will:

• apologise to Mr X for the injustice caused by the faults in this case;

• pay Mr X £1,000 to reflect the frustration and uncertainty caused by the Council’s service failure and drift and delay; and

• highlight on its relevant webpages for EHC needs assessments, how long it is currently taking to assess children and young people for EHC Plans, so that parents and carers are better prepared for these significant delays.

45. The Council has also agreed that within three months of the date of this report it will:

• provide an action plan showing how it will improve its timeliness in issuing EHC Plans once the educational psychology reports are received; and

• investigate what led to its poor communication in this case and set out action to improve its communication with families whose children are on its waiting list for EHC Plans.

Decision

46. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Mr X and Y. The Council has agreed to take the action identified in paragraphs 43 - 45 to remedy that injustice.

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