Summary: We found fault by the Council on Mrs J’s complaint about its failure to reach a decision on whether to issue her son with an Education, health, and care plan within statutory timescales. The Council failed to reach its decision and notify Mrs J of it within the timescale. It also failed to deal with her complaint properly. The agreed action remedies the injustice caused.

The complaint

1. Mrs J complains the Council failed to:
1. reach a decision on her son’s Education, health, and care plan within statutory timeframes;
2. release funds to his school from April 2020; and
3. properly deal with her formal complaint about its actions.
2. These failures caused the family a great deal of stress, frustration, and anxiety as well as costing her financially as she instructed a private educational psychologist. In addition, her son lost out on having an education that met his needs, and the decision about school funding causes uncertainty in terms of what the school can provide.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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.

Special Educational Needs and Disability Regulations 2014

6. Where, following an EHC needs assessment, a council decides it is not necessary for special educational provision to be made for a child or your person in accordance with an EHC plan, it must give notification of the decision, ‘as soon as practicable’ and in any event, ‘within 16 weeks of the local authority receiving a request for an EHC needs assessment’. (Regulation 10(1))
7. Regulation 10(4) set out four exceptions when a local authority need not comply with the time line where it would be impracticable to do so. This regulation was amended by The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (Regulation 9(b)). This added a fifth exception which was where there was a ‘reason relating to the incidence or transmission of coronavirus’.

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How I considered this complaint

8. I considered all the information Mrs J sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent her. I also sent a copy of my draft decision to Mrs J and the Council. I considered their responses.

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What I found

9. The Council received a request for Mrs J’s son K to be issued with an Education, health, and care plan (EHC plan) from his private school. The Council received it in December 2019 which started the 20-week assessment statutory time frame.
10. Mrs J said the Council had to decide whether to issue an EHC plan by 9 April 2020 but missed the target. She says temporary regulations, which allowed councils to delay making this decision, came in the following month. She argues this means they did not apply here because the deadline was in April.
11. The Council accepts it missed the 16-week timescale for which it apologised. It explained the delay was due to Covid-19 and national lockdown which brought services to a standstill for a while. It said it did not have the infrastructure in place at the start of the pandemic for staff to work at home. It had to roll new technology out faster than planned. During this period, it had many members of staff who could not visit the office and were not equipped to work from home.
12. Mrs J challenged its decision not to issue an EHC plan. She claims at the mediation hearing, the Council sent a representative who had no authority to decide whether to make an EHC plan or not. This is not accepted by the Council which said as new information was presented at mediation, the representative followed procedure. The information was prepared and presented to a panel for consideration and a decision. The panel decided to issue an EHC plan in August.
13. The Council explained it does not usually agree to overturn decisions at the mediation stage. It is an opportunity for families to discuss their case with a member of the team and bring relevant professionals they consider will support their case. This is then fed back to the wider decision-making meeting for a collective decision.
14. Mrs J is also unhappy about its failure to release funds to K’s school. The Council argues funding is only payable from September. Mrs J believes it is payable from April when it should have reached a decision about making an EHC plan. This failure caused them financial loss as they paid a private educational psychologist to attend the mediation hearing. She also wants the backdating of the school’s fees to April.
15. The Council argues it is only responsible to fund provision set out in a final EHC plan to the setting named in Section I. As the EHC plan was issued in August, it would only make payments from the start of the academic year in September. The Council also said the school has ‘notional’ SEN funding which it must first apply before applying to the Council for additional resources. A notional budget is not a budget that is separate from the school’s overall budget. It is an identified amount within a maintained school’s delegated share.
16. In December 2021, the Council confirmed the fees for the 2020/2021 academic year were paid as well as the autumn term fees for the current academic year. It would pay these termly to the school.
17. The key dates in this complaint are:

• December 2019: The Council received a request for an assessment of K from his school. Two days later the Council sent an acknowledgement to Mrs J saying it would contact her within six weeks to tell her whether it will proceed with an EHC needs assessment. It explained the process;
• January 2020: The EHC Panel agreed to do an assessment and told Mrs J;
• February: This decision was confirmed;
• March: The country went in to lockdown towards the end of the month. Council employees were sent home and during the first three months of lockdown, the service had no access to IT or phones. The Council received the education psychologist report;
• 7 April: This was the deadline for telling Mrs J whether it would issue an EHC plan or not.
• 17 April: The Case Management Panel heard the case and decided not to issue the EHC plan. Later that month, the EHC panel confirmed the decision not to agree to a plan for K. Mrs J says she was unaware of either of these panel meetings and only became aware of the decision to refuse in June.
• June: The Council sent Mrs J a letter telling her of the decision. It explained she could consider mediation or appeal to the SEN and Disability Tribunal;
• July: The EHC Panel reviewed the case after mediation. It now had a costed provision map and an updated education psychologist report. The panel decided to issue an EHC plan. The Council wrote to Mrs J with its decision to issue the EHC plan and sent her a copy of the draft EHC plan;
• August: The Council issued the EHC plan;
• January 2021: The Council received a request from Mrs J for a personal budget which was outside the period when the EHC plan was being prepared. A request can be made at anytime during the period when the ECH plan is being prepared or being reviewed and/or reassessed;
• March: The SEND Tribunal ordered the Council to amend the EHC plan. The Council says it was at this point, that the details of the special educational provision in his statement became clear. It agreed to pay Mrs J a personal budget in full of £6,000.75;
• April: The Council responded to her initial complaint, a dated copy of which I have not seen. Mrs J sent an email in response, unhappy with its decision, saying she had also referred her case to us. She ended it by saying she was unhappy with the complaint outcome, that she assumed we would now investigate, but if it wished to, the Council could respond to her letter. We had written to Mrs J when we received her complaint saying she had to complete the Council’s complaints procedure before we could investigate; and
• December: The Council sent her a response to her complaint, but it is unclear whether this is response to her April letter. It referred to a conversation she had with an officer about the misunderstanding with her original letter. The Council signposted her to us.

My findings

18. I found the following on this complaint:
1. Within six weeks of receiving the request for an assessment, the Council told Mrs J it would carry one out.
2. The Council had to notify Mrs J of the decision not to issue an EHC plan by 7 April 2020. It did not make the decision until 30 April, three weeks later, and did not notify her of that decision until 17 June, ten weeks after the deadline.
3. The Council argued the 2020 regulations, brought in because of Covid-19 and national restrictions, set out a new exception for councils and the 16-week deadline. As Mrs J correctly pointed out, the 2020 regulation only came in to force on 1 May, almost a month after the deadline the Council missed. The deadline for sending its decision was due before the introduction of this new exception.
4. While I have sympathy for the Council missing the deadline before the introduction of this new exemption, and note the impact the national lockdown had on staff having to work from home, as well as the logistical and technological difficulties this caused them to carry out their functions, I am satisfied this failure amounts to fault.
5. In reaching this conclusion, I took account of government guidance issued (‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19): August 2020’) which states: if the deadline for a particular stage in the process had passed before 1 May 2020, the relaxations to timescales for that process for a reason relating to the incidence or transmission of Covid-19 by the new regulation ‘could not apply because the Regulations were not in force then’. It went on to confirm,

‘Any reasons relating to the incidence or transmission of coronavirus (COVID-19) that led to any statutory deadlines missed before 1 May 2020 cannot be subject to the coronavirus exception’.

6. While I appreciate the practical difficulties the Council faced because of national lockdowns from 23 March to 1 May, the fact remains the deadline was missed, and Covid-19 could not be used as an exemption during this period.
7. I am satisfied these failings caused Mrs J injustice. They caused distress because she had to wait longer for the Council to reach its decision and to tell her about it. During this period, she experienced some frustration and anxiety.
8. On balance, I am not satisfied the injustice would include an argument the mediation and subsequent change in view might have happened earlier but for the fault. This is because during this first lockdown period, there were still restrictions in place and many organisations were still adapting to new working practices and technology.
9. Mrs J says she was unaware of the two panel meetings held in April. I note the letter the Council sent her in January 2020 did not refer to the two panels’ involvement when it had gathered information it needed but, did refer her to its website for more information. The website page contains information about the decision-making process. It explained making the decision to issue or not is made by the EHC Placement Panel.
10. While there is no mention of the Case Management Panel or the EHC Needs Assessment Panel, I am not satisfied this lack of information amounts to fault. This is because the Council gave her key information about the process; that it had to make a decision and the time frame within which it had to do so. Failing to tell her the exact internal process it had chosen to use to reach its decision was not fault.
11. Mrs J argues the representative the Council sent to the mediation session had no authority to make decisions. The Council’s website refers to the mediation process. It explained, ‘In Sheffield any decision that is part of the EHC needs assessment process is made via the EHC Panel. The officer representing the local authority at mediation may agree to refer the case back to the local authority’s EHC panel.’
12. This clearly explains it is for the EHC panel to make decisions, not officers during the mediation process. At mediation, the officer agreed and decided to send the case back to the panel for reconsideration because of new information. I found no fault on this complaint.
13. I considered Mrs J’s complaint about funding. When the Council refused to make a EHC plan in April 2020, Mrs J had the right to appeal the decision. She went to mediation and the Council changed its decision. It changed its decision because of new evidence. I see no reason why the Council should be responsible for funding provision before August when it decided to make a EHC plan. This is because the evidence before the panel was not the same as that in April.
14. The evidence suggests an eight-month delay in responding to her complaint sent in April 2021. Although the Council referred to a misunderstanding with her original letter, this could have been avoided had the Council contacted her about it at the time. It could have clarified whether her stated assumption about us now investigating was correct and whether it intended to respond to it. We had written to Mrs J the day before saying she had to complete the Council’s complaints procedure before we could investigate her complaint.
15. While this caused some injustice in the form of delay and confusion on Mrs J’s part, I consider she could have made it clearer to the Council after we had been in touch, that she needed it to complete its complaints process before we could investigate.

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Agreed action

19. I considered our guidance on remedies and the apology the Council already gave Mrs J for missing the time frame.
20. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send a written apology to Mrs J for its failings to respond to, and seek clarification from her, about her letter of complaint sent in April 2021.
2. Look at why there was a failure to deal with her complaint letter sent in April 2021 properly and promptly.

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Final decision

21. I found fault on Mrs J’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman