Summary: the London Borough of Bromley avoidably delayed in completing a reassessment of Ms B’s daughter’s education, health and care needs for three months in 2019. This caused injustice and the Council will now take the action recommended to remedy this.

The complaint

1. The complainant, whom I shall refer to as Ms B, complains about matters related to the Council’s handling of her daughter’s special educational needs. Specifically, she says it:

1. delayed in completing a re-assessment of her daughter’s needs. She requested this in March 2019 but it was not completed until September 2019;
2. failed to consult the Child and Adolescent Mental Health Service team as part of this re-assessment;
3. failed to make the provision detailed in the plan between September 2019 and May 2020 and the provision outlined was, in any case, insufficiently detailed and formed part of an appeal to the SEN Tribunal; and
4. failed to seek a school placement saying that X could not engage with a placement.

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What I have investigated

2. I investigated part a) of the complaint which is about the delay in completing a reassessment of Ms B’s daughter’s special educational needs. Please see the final part of this statement which provides the reasons I have not investigated the other parts of the complaint.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), 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 or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
7. If we are satisfied with a council’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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How I considered this complaint

8. I discussed the complaint with Ms B and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision.
9. 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.
10. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

11. A child 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.

12. There is statutory guidance on Special Educational Needs which confirms that there are occasions when a reassessment of needs is needed when an EHC Plan is in place, particularly when a child’s needs change significantly.
13. The guidance confirms that councils must conduct a reassessment if a request is made by a parent for this. A council may refuse if less than 6 months have passed since the last assessment or if it considers a further assessment in not needed.
14. Where a council does agree to a request for a reassessment the process is the same as for the first EHC assessment. This means the timescale for completion of the process from the date the council agrees to reassess to the issuing of the final EHC plan is 14 weeks and this should be completed as soon as practicable.
15. The council must gather information from relevant professionals about the child’s education, health and care needs and provision that may be required to meet the needs and achieve desired outcomes. Advice must be sought from the child, the child’s school, relevant health professionals, an educational psychologist, children’s social care, any person requested by the child or young person where the Council considers it reasonable to do so.
16. The statutory guidance confirms that there are exceptional circumstances where it may not be reasonable to expect councils to comply with the time limits and these include:
• where appointments are missed by the child;
• the child is absent form the area for at least four weeks;
• exceptional circumstances affect the child or their parent;
• the school is closed for at least four weeks.
17. The annual review of an EHC plan considers whether the provision remains appropriate and whether progress is being made towards the targets in the plan. The statutory guidance says the first review must be held within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review.

Background

18. Ms B’s daughter, X, was 14 years old in the period this complaint relates to. Her special educational needs are related to her social, emotional and mental health. She has had an EHC plan which details her needs and the support she needs to meet these in school since at least 2015.

What happened

19. In its comments to me the Council says an annual review took place in February 2019 and was attended by Ms B, teacher’s at Ms B’s daughter’s school and two council officers from its special educational needs team. The record of the review meeting shows that:
• X’s school attendance had significantly declined from over 90% to around 30%. Ms B told the meeting that X had started to struggle in the autumn term in 2018 for a variety of reasons and this had resulted in a decline in her mental wellbeing and a consequent fall in her school attendance. The school contacted the Council’s SEN team in December 2018 about this. In January and early February the school met with the Council’s SEN team and Ms B to try to find ways to encourage and improve X’s attendance;
• none of X’s previous outcome targets had been met;
• a new outcome was added to the plans for X which was that X would be gradually reintegrated back into school with support from a full-time teaching assistant;
• a Speech and Language Therapist would be provided to work with X by April 2019;
• an Educational Psychologist’s report would be arranged by April 2019;
• the decision following the review was that the plan would be amended because a change of provision was needed.
20. The notes from the annual review meeting are dated late March 2019. I note that the Council’s February 2020 response to Ms B’s complaint to the Council does not refer to a review taking place in February 2019 and refers to the meeting being arranged for late March 2019 following Ms B’s request for a reassessment in early March 2019.
21. Ms B has confirmed to me that an annual review did not take place in February 2019 but that it arranged an interim review meeting for March 2019 in response to her request for a reassessment of needs. So it seems clear that the notes dated March are in fact a note of that interim review meeting in March and agreement was reached for a reassessment of X’s needs.
22. The Council says the educational psychologist’s assessment took place during May and a report was completed by late May. Ms B confirms that an assessment by a SALT was undertaken in April.
23. In June the Council told Ms B that it would provide a full-time teaching assistant (TA) to support X in school for the year 2019/20 and also that it would fund specialist SALT provision. Ms B says the SALT provision was not in place until September by which time X was not attending school.
24. The Council contacted the local Child and Adolescent Mental Health Service (CAMHS) for a report in mid-July and says its advice was provided in late July. During June and July the Council agreed to fund additional support by X’s school to help with X’s reintegration.
25. The Council agrees that whilst the reassessment was concluded following receipt of the advice from the relevant professionals by late July, the reassessment process was not complete until September 2019 after the Council consulted with Ms B on the proposed amendments to the EHC plan as a result of the assessment and following a further review meeting.
26. The final amended EHC plan issued in September was more specific in detailing what support X would receive than the EHC compared to the plan in place before that. It included significant support, provision and training for staff from a speech and Language Therapist, addressed the support that X would receive to try to help her gradually reintegrate into school, support from the Child and Adolescent Mental Health Service and provision of additional SALT support when back at school. The educational placement was “Education Other Than At School (EOTAS). In contrast the 2018 EHC plan included no provision from a SALT, included provision of support around X’s mental wellbeing as advised by mental health professionals and named an independent day school as X’s educational placement.
27. In response to Ms B’s complaint to the Council, its letter dated February 2020 accepted that the completion of the reassessment was delayed stating this was the result of changes in staffing and delays in the advice being received from professionals.

Was the Council at fault and did this cause injustice?

28. Ms B requested an EHC reassessment in early March 2019 and the Council agreed around mid-March. The final amended EHC plan was issued in late September. Completion in the required fourteen weeks would mean the process should have been completed in late June. None of the circumstances outlined in point 16 above appear to apply. This means it wrongly took the Council around three months longer than it should have to issue the final amended EHC plan and this amounts to fault.
29. The delay caused injustice in the form of frustration for both Ms B and X. In addition, there were significant changes in the provision detailed in the amended plan issued in September. I do recognise that the Council introduced some of the provision that was later included in the amended EHC plan during the summer and this included, for example, full time TA support so the delay did not mean that changes to provision were entirely delayed. I do also recognise however that, but for the delay in issuing the final plan, other provision including that from the SALT would probably have been in place in July. So, this would have meant it would been in place around three weeks before the end of term rather than in September.

Agreed action

30. Within one month of the date of the final decision on this complaint the Council will:
• apologise to Ms B and X for the avoidable delay in completing the reassessment and issuing the final amended EHC plan;
• recognise the injustice caused by the delay in the form of avoidable frustration by making a payment of £100 each to Ms B and X; and
• make a further payment of £250 to X to recognise the injustice caused by the missed provision for the final three weeks in July which should have included the increased support detailed in the amended EHC plan issued in September as, but for the avoidable delay, this would have been in place from late June.
31. In order to ensure that the Council is doing all that it can to meet the statutory timescales in future it will, within two months of the date of this final decision statement provide us with evidence to confirm:
• it has addressed staffing issues it says was a factor in the delays in this case; and
• what processes it has in place to try to ensure that professional advice for EHC Plan assessments are provided on time. For example, issuing professionals with timely reminders to provide their advice etc.

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Final decision

32. The Council avoidably delayed in completing the reassessment of X’s education, health and care needs for three months. This caused injustice and the Council will take the agreed action to remedy this.

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Parts of the complaint that I did not investigate

33. I did not investigate parts b), c) and d) of the complaint as summarised above as they relate to matters which formed part of an appeal to the SEND Tribunal following the issuing of the final EHC Plan in September submitted in late 2019. We therefore do not have jurisdiction to investigate them.

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Investigator's decision on behalf of the Ombudsman