Council criticised by Ombudsman for failing to ensure child received SEN provision while appeal in First-tier Tribunal was ongoing

The Local Government and Social Care Ombudsman has found Leeds City Council at fault for failing to ensure a child received special educational needs provision while an appeal to the First-tier Tribunal (Special Educational Needs and Disability) was ongoing.

However, in its report the Ombudsman said it could not investigate how the council conducted itself during the Tribunal appeal process.

The woman behind the complaint, Miss X, complained that Leeds delayed in amending her child’s Education, Health, and Care (EHC) Plan after she appealed about the Plan to the First-tier Tribunal.

She also said the council failed to ensure the child (D) received the provision in their latest final EHC Plan while the appeal was ongoing, from June 2023 to October 2024.

Miss X told the Ombudsman that because of this, D missed special educational needs provision, causing them distress.

The background to the case was that in 2021, Miss X asked the council to carry out an EHC needs assessment for D, because she felt D needed an EHC Plan. The council assessed D and decided it should not issue D with an EHC Plan.

Miss X appealed against this decision to the SEND Tribunal. In early 2023, the Tribunal ordered the council should issue D an EHC Plan.

In June 2023, D was at the end of year 6. Following the Tribunal order, the council issued D with a final EHC Plan, naming a mainstream secondary school placement for the following school year.

Miss X appealed the content of the EHC Plan to the SEND Tribunal because she did not agree with the school placement. She felt D should have a special school placement.

D started year 7 at the mainstream secondary school in September 2023. Miss X said the school did not put in place the SEN provision in D’s EHC Plan. She said she made the council aware of this towards the end of 2023.

Following further correspondence and complaints made to the council, Miss X brought her complaint to the Ombudsman in October 2024. A couple of weeks later, the council identified a special school placement and issued an amended EHC Plan for D.

The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs.

Outlining the limits of its investigative capacity in this area, the Ombudsman stated: “The courts have established that if someone has appealed to the Tribunal, we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal.

“[…] We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal.”

The Ombudsman noted, however, that it can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal.

Investigating the mother’s complaint, the Ombudsman found that the June 2023 EHC Plan set out the provision the child should receive, and that the council “still had a duty” to deliver the SEN provision it had specified in this plan while the Tribunal appeal was ongoing.

The report stated: “The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether every pupil with an EHC Plan is receiving all their SEN provision. However, we consider councils should be able to demonstrate due diligence in discharging this important legal duty. As a minimum, the council should have systems in place to:

• check the special educational provision is in place when it issues a new or substantially different EHC Plan, or there is a change in educational setting;
• check the provision at least annually via the EHC Plan review process; and
• investigate complaints or concerns that provision is not in place at any time.”

Miss X raised concerns with the council about delivery of D’s EHC Plan from December 2023.

However, the Ombudsman said it would still expect the council to check the provision in the new EHCP was in place, after it issued it in June 2023, especially as D was starting a new secondary school placement.

The Ombudsman said: “I have seen no evidence the council checked the provision was in place once D started at the school. It is also clear from the council’s complaint response it did not properly investigate and respond once Miss X raised concerns about this. This was fault."

The Ombudsman continued: “As the Council failed to properly investigate whether the EHC Plan provision was in place, Miss X provided us with evidence of enquiries she made with the school about this herself. Based on the response provided by the school, I decided on the balance of probabilities that D did not receive most of the key support and interventions outlined in their EHC Plan. This means the Council’s failure to check provision was in place, or investigate once Miss X raised concerns, meant D missed provision they were entitled to.”

To remedy the injustice caused, the Ombudsman recommended the council provide a financial remedy of £600 per term for the approximately four terms of SEN provision D missed - from the point the council issued the June 2023 EHC Plan, up to the amended Plan naming a new school in October 2024.

It was also recommended to pay £200 to recognise the “avoidable distress” caused to Miss X by the council’s failure to properly investigate her concerns that provision was not in place – bringing the total to £2,600.

Councillor Helen Hayden, executive member for children and families at Leeds City Council, said: “Like many local authorities across the UK, Leeds has seen a growing number of applications for Education, Health and Care (EHC) needs assessments, which is putting an unsustainable strain on services and has meant that we are not providing the level of service that we would wish to.

“We absolutely understand the frustration and uncertainty this has caused to the young people and families affected.

“Whilst we do not comment on individual cases, the council accepts the findings in the Ombudsman’s report and has apologised to the family.

“We remain committed to ensuring that every child and family in Leeds has access to the best possible support which helps meet their educational needs.

“The council recently embarked on a rigorous, external review aimed at setting out new processes that would put the needs of children and their families at the forefront while at the same time delivering both change and increased efficiency.

“This detailed work has resulted in a range of proposals, including securing additional external educational psychologists, that will enable us to deliver better and more timely services to the children, young people and families of Leeds.”

Lottie Winson