Summary: Mrs D complained the Council did not complete an Education, Health and Care needs assessment for her child within legal timeframes. She also complained the Council failed to provide alternative provision support for them when they stopped attending school. We found the Council at fault for not properly considering its duties for alternative provision. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Mrs D complains the Council failed to meet statutory timeframes to complete an Education, Health and Care needs assessment for her child. She also says the Council failed to provide alternative education or provision for her child after it became aware they were unable to attend school.
2. Mrs D says this has meant her child has been socially isolated and missed out on a significant period of education. This has caused significant distress, uncertainty and frustration for them and the family.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

6. The subject of this complaint is Brighton and Hove City Council, which I refer to as “the Council”. During the events of this complaint, Mrs D and her family moved to another Council’s area “Council B”. I am only considering the Council’s actions. Mrs D has made a separate complaint about Council B.

Back to top

How I considered this complaint

7. I discussed the complaint with Mrs D and considered her views.
8. I made enquiries of the Council and considered its written responses and information it provided.
9. Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Law and administrative background

Education, Health and Care Plans (EHC Plans)

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
11. Parents have a right of appeal to the SEND Tribunal. This is only engaged 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.
12. 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 SEND Regulations 2014. It says the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
13. The Special Educational Needs and Disability Regulations 2014 say:
• If a council refuses to carry out an EHC needs assessment but then the SEND Tribunal orders them to do so, then they must either decide not to issue an EHC plan within 10 weeks or issue a final EHC Plan within 14 weeks of the order (Regulation 44(2)(b)).
• The above applies if the Council does not oppose the appeal as it will be treated as if it was determined in the favour of the appellant (Regulation 45(2) and 45(3a)(b)).
14. As part of the EHC needs assessment, councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (“EP”). Those consulted have six weeks to provide the advice.

Transfer of EHC Plans

15. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council on the day of the move or, where it has not become aware of the move at least 15 working days prior to that move, within 15 working days beginning with the day on which it did become aware.

Alternative provision

16. 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.
17. We issued a focus report “Out of school, out of sight?" issued in July 2022, updated in August 2023. This highlighted guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.

Department for Education – summary of responsibilities where a mental health issue is affecting evidence (February 2023)

18. Schools should inform the council where pupils are likely to miss more than 15 days, and work with the family to provide educational provision whilst determining with the council whether alternative provision should be provided under section 19 of the Education Act 1996, as outlined in statutory guidance.
19. Councils must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. Councils must look at the evidence for each individual case, even when there is no medical evidence, and make their own decision about alternative education.

Background

20. From autumn 2022, Mrs D’s child (“Y”) experienced difficulties attending “the School”. Mrs D and the School communicated about the issues and concerns about Y’s mental health and anxiety affecting their attendance.

What happened – summary of key relevant events

21. In mid-May 2023, following increased absences and concerns for Y, Mrs D made an Education, Health and Care (“EHC”) needs assessment request to the Council. The Council refused to assess and Mrs D appealed.
22. In early June 2023, Mrs D contacted the Council to request alternative education for Y. She outlined Y’s difficulties with their mental health and school based avoidance anxieties. A private assessment had diagnosed Y with Autistic Spectrum Disorder and Attention Deficit Hyperactivity Disorder.
23. A week later, the Council’s Access to Education team replied to Mrs D. It said if a pupil could not attend school due to medical reasons, it asked schools to make referrals for discussions at its medical needs panel. It offered a meeting with the Council and the School if she wished. Mrs D did not appear to respond to this directly.
24. Around September 2023, Mrs D said she signed Y up for private education provision she found. She said Y stopped attending around October 2023 after managing a few full days.
25. In mid-September 2023, the Council’s Hidden Children Officer emailed the School after a meeting. This included advice to the School to make a referral to the Council’s Children Missing Education (“CME”) panel. The Council did not provide notes of the meeting.
26. In early October 2023, the Council confirmed to Mrs D it conceded the appeal and agreed to an EHC needs assessment for Y. It asked professionals, including a Council Educational Psychologist (“EP”), for advice towards the assessment.
27. In mid-October 2023, the Council’s CME panel discussed Y’s case. The notes of this are very brief. It made note about Y’s attendance at private provision for two days a week.
28. In mid-November 2023, Mrs D made a formal complaint to the Council. This included delays with the EP report for Y’s EHC needs assessment and failing to provide alternative provision for Y. The Council’s response at Stage One acknowledged the EP delay.
29. In mid-December 2023, Mrs D received the EP report. A week later, the Council agreed to an EHC Plan for Y. Around this time, Mrs D and her family moved to Council B’s area.
30. In mid-January 2024, the Council sent a draft EHC Plan to Mrs D. Two weeks later, Mrs D requested amendments.
31. In mid-February 2024, the Council issued its Stage Two response after Mrs D escalated her complaint in January 2024. It did not consider there had been a lack of support or that it was at fault for how it handled Y’s case.
32. Mrs D then complained to us. She said she had sourced some various provision for Y herself over the time period above, at significant cost to herself and impacting her financially.
33. In mid to late February 2024, the Council received information from the School that Mrs D had moved. It contacted Mrs D asking her to confirm her new address. She confirmed they moved in December 2023. She raised concerns with the transfer to Council B, whether it would delay the EHC needs assessment, and how long it would take.
34. At the start of March 2024, the Council confirmed with Mrs D it transferred Y’s EHC needs assessment case to Council B and updated it about the current situation.

Analysis

Education, Health and Care needs assessment

35. After it conceded the appeal and agreed to assess, the Council should have issued a final EHC Plan by the statutory deadline of 14 weeks (in this case, by early January 2024). It did not do so. Some of this appeared to be due to some delays with an EP assessment.
36. However, I have also considered other circumstances surrounding this. Mrs D moved to Council B’s area in December 2023. Shortly after this in February 2024, the Council received information about Mrs D’s move. It then promptly transferred Y’s case to Council B. While the Code of Guidance at Paragraph 15 does not specifically cover the transfer of ‘draft’ EHC Plans, I consider the Council’s actions align with the spirit of this; within 15 working days of when it became aware. I appreciate the timing of this left an incomplete EHC Plan, but the responsible council for a child’s education is the one at the home address. This is not fault by the Council.
37. There is some fault by the Council for a short period of delay in the assessment process for up until it was aware of Mrs D’s new address. However, in my view, there is no significant injustice. Mrs D had moved before the statutory deadline and the Council’s responsibility would have ended at that point. The Council passed the legal process to Council B to complete. I cannot consider the rest of process, including the time taken for the final EHC Plan, as this became Council B’s responsibility.

Y out of education

38. The investigation is limited to considering the role of the Council; we cannot consider the actions of the School.
39. Section 19 of the Education Act 1996 places councils under a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. We expect councils to consider a child’s individual circumstances and decide, at the time, whether it has a statutory duty to provide alternative provision.
40. The Council first became directly aware of Y’s non-attendance in June 2023 when Mrs D contacted it to request alternative education. In response, the Council said it asked schools to make referrals to its medical needs tuition team. I note Mrs D did not take up the Council’s offer of a meeting or respond further with it at this point.
41. However, I also consider the Council should not have relied on the School to make a referral. The ultimate responsibility for education and provision lies with the Council. It knew about this directly from Mrs D herself. I have not seen evidence of the Council proactively following this up with either the School or Mrs D about the matter. In my view, it did not properly consider or make enquiries to satisfy itself of its section 19 duty to make alternative provision for a child who is not accessing education. This is fault.
42. Further to this, Department for Education guidance (referred to in Paragraph 19) states that councils must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. They must look at the evidence for each individual case, even when there is no medical evidence, and make their own decision about alternative education.
43. The Council said it did not have evidence that significant medical needs were preventing Y’s attendance at school. Our guidance makes it clear that the Council should consider making alternative provision where a child is not able to attend school for any valid reason (not just medical need) where it is clear the absence will be over 15 days. We would have expected the council to promptly explore the reasons for non-attendance and make an informed decision on whether the child was medically unfit, or ‘otherwise’ unable to attend school. I have not seen records from the time of events to show the Council did so at this stage, or requested or considered any evidence it had at that point. This is fault.
44. The Council later acted on a referral the School made to its CME team (a different team) in September 2023. The notes of the CME panel in October are very limited. They refer to private provision it believed Y was attending at the time for two days a week. I cannot clearly see how it discussed Y’s education and if it considered if alternative provision was needed. I have not seen evidence of how the Council reviewed this provision, or if it was satisfied it was suitable and sufficient for Y’s needs for full time (or equivalent) education. This is fault.
45. The Council also said, during this period, it was satisfied the School was making efforts with education for Y, and Y was attending some provision, so did not need to consider its section 19 duties. This is inadequate to meet its responsibilities, and it has not sufficiently evidenced regular contact with the School. I cannot see it kept this under regular review. Y only attended this provision for a few sessions, which would seem to support the Council not maintaining appropriate oversight of the situation.
46. On balance, I am not satisfied the Council properly considered its duty to arrange alternative provision for Y while they were not attending school. This lack of robust action from a section 19 perspective between June 2023 and December 2023 is fault. I have not included January to February 2024 as I consider Council B would have been responsible for Y’s education from December 2023 when Mrs D moved.
47. This caused injustice to Y with little to no provision in place for over a school term and they likely missed out on significant learning and social opportunities. Ms X says this has had a profound negative impact on Y’s mental health. I also consider the Council did not properly respond to and engage with Mrs D about her request for alternative provision. This caused her uncertainty and frustration, combined with her distress at trying to manage the overall situation.
48. I note during the above period, the Council’s contact with Mrs D mainly focused on Y’s ongoing EHC needs assessment. While appropriate, this is separate and a different consideration to its section 19 duty.

Back to top

Agreed action

49. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
50. Within one month of the final decision:
• Apologise to Mrs D in writing (in line with our guidance on making an effective apology) for the injustice caused by the faults identified;
• Pay Mrs D a symbolic payment of £150 to recognise her frustration and distress caused; and
• Pay Mrs D a symbolic payment of £1,200 to recognise the impact to Y for the lack of provision between June and December 2023. This can be used for Y’s educational benefit.
51. Within three months of the final decision:
• Send written reminders to relevant staff of the Council’s responsibilities under Section 19 of the Education Act when it is made aware a child is not attending school. With these reminders, it should share a copy of our “Out of school, out of sight?" focus report, highlighting key points to ensure officers are aware of the factors they should consider when a request for alternative provision is made.
52. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

53. I found fault with the Council which caused injustice. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman