Summary: Mrs X's appeal to the tribunal about her child Y's Education Health and Care Plan means we cannot investigate related matters from June 2023 onwards. The Council made its decision that Y could go to the special school named in Y's EHC plan without fault. It did not, therefore, have a duty to provide alternative education for Y. The Council did not have a duty to provide transport for Y to specialist provision arranged by Y's school at a different location.

The complaint

1. Mrs X complained that the Council:
1. failed to make suitable full-time alternative provision when her child was unable to go to school from November 2022;
2. ignored the advice of her child’s doctor in deciding her child’s school was available and suitable;
3. delayed agreeing to fund transport to enable her child to access specialist provision;
4. only agreed to pay her mileage costs for driving her child herself, instead of providing a driver and escort; and
5. communicated poorly with her.
2. As a result, Mrs X says her child has been out of education since 2022 and she has experienced avoidable distress.

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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 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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)

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How I considered this complaint

8. I considered the complaint and the information Mrs X provided.
9. I made written enquiries of the Council and considered its response along with relevant law and guidance.
10. Mrs X and the organisation 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

EHC plans

11. A child or young person with special educational needs (SEN) 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. Section B sets out the child's SEN. Section F sets out the provision required to meet those needs. Section I names the school or type of school the child will attend.
12. There is a right of appeal to a tribunal against the description of a child or young person’s SEN, the special educational provision specified, and the school or placement.

Alternative provision

13. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative provision.
14. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Transport

15. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge. The relevant qualifying school is the nearest school with places available that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have. (Education Act 1996, 508B(1) and Schedule 35B)
16. If only one school is named in a young person’s EHC plan, then that is the school the council has determined is the nearest suitable school for the child. It is therefore the nearest ‘qualifying school’ for the child to attend for school transport consideration. This is because the council has not made arrangements for the child to attend a closer school. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346.) Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.

What happened

17. Mrs X's child, Y, has special education needs (SEN). Y has an EHC plan. At the time relevant to this complaint, that plan named a special school in Section I.
18. Y finds transitions difficult. This is particularly acute in the morning transition from home to school. The evidence is that Y gets very distressed and can be physically violent.
19. In a previous complaint to the Ombudsman (ref 22014060), we found fault with the Council for failing to provide transport for Y to get to school between September and November 2022.
20. From mid-November 2022, the Council provided transport for Y to get to school. This was a driver and an escort. However, Mrs X did not think it was in Y's best interests to go back to the school. Mrs X said Y was too traumatised and the school could not meet Y's needs.
21. Throughout November and December, Y's school contacted Mrs X to discuss Y's transition back to school.
22. In January 2023, Mr and Mrs X met with officers from the Council's Inclusion Support Service, SEN team and Y's school. It was agreed that the school would provide additional support to help Y re-engage with education after such a long absence. The Council says its position remained that Y had available and suitable provision at the school.
23. In February, the Council started a full re-assessment of Y's needs to inform a new EHC plan. It also wrote to Mrs X about a package of support from the school with the aim of getting Y back to school.
24. As part of the re-assessment, an educational psychologist assessed Y. This recorded Mr and Mrs X's view that Y was much more settled since no longer going to school. They said Y should have an Education Otherwise than at School (EOTAS) package instead of going back to the school. The school told the educational psychologist that although Y did find the transition to school difficult, once at school Y settled well during the morning and enjoyed various activities at school. The educational psychologist's report said having a peer group was an important part of Y's education.
25. In April, Y started receiving tutoring at home as part of the plan to support Y's transition back to school.
26. In June, the Council issued a new EHC plan for Y. This named the same special school in Section I.
27. In September, Y started receiving speech and language therapy at home as part of the transition plan. Y's GP wrote a letter to the Council which said Y could not currently attend school due to the "extreme distress" it caused Y. The GP said Mrs X had explained there was a plan to reintroduce Y to school. The GP said this would "take [Y] back to square one and precipitate the marked anxiety, distress and aggression that has previously been experienced." The GP recommended Y continued to receive education at home.
28. In October, the Council held a professionals meeting to discuss the letter from Y's GP and consider whether it had a section 19 duty to provide Y with alternative provision. It wrote to Mrs X with the outcome of this meeting. The Council decided Y was not medically unfit to go to school. It said a gradual and supportive transition plan remained appropriate.
29. In November, Y started attending sessions with an Occupational Therapist (OT) at a different special school. Mrs X takes Y to these sessions.

My findings

Alternative provision

30. The Council issued a new EHC plan for Mrs X's child in June 2023. Mrs X used her right of appeal to the tribunal about sections B, F, and I of the plan.
31. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
32. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
33. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision.
34. In this case, this means that I cannot investigate whether Y was able to go to school or if the Council should have provided alternative provision from when the Council issued the new EHC plan in June 2023. Mrs X has used her right of appeal to the tribunal about the plan. The reasons Mrs X has not sent Y to school are directly linked to Y's SEN and whether the school is suitable.
35. Y did not go back to school in September 2022 because of issues with transport. However, we have already investigated a complaint about this and remedied the injustice to Y from missed education in September and October.
36. My investigation of this part of the complaint is therefore limited to the period from November 2022 to June 2023.
37. The Council decided that the school named in Y's EHC plan was suitable and accessible to Y. It remained of this view after a full reassessment of Y's needs. It took into account Mr and Mrs X's views, feedback from the school and considered what was in Y's best interests. It supported the school in delivering a plan to transition to Y back to school.
38. If a council makes a decision properly, we cannot question it. In this case, the Council properly considered Y's circumstances and decided Y had a suitable school place available. It did not, therefore, have a duty to arrange alternative provision for Y. The Council was not at fault.
39. The Council revisited this decision in October 2023 after receiving the letter from Y's GP.
40. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
41. In practice, we would expect to see Councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. If – having considered all relevant evidence – a Council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented, and communicated promptly to the parent.
42. In this case, the Council held a professionals meeting, took into account Mr and Mrs X's views as well as those of Y's GP and the school. It decided the school was available and accessible to Y. It communicated that decision to Mrs X promptly after the meeting. The Council was not at fault.

Transport

43. In March 2024, the Council conceded on Mrs X's appeal against Section I. Given the length of time Y has been out of school, it now agrees Y needs a period of EOTAS. What this provision should be and how and by whom it will be delivered remains subject to appeal under Section F.
44. The Council agreed to pay Mrs X's mileage costs from March 2024 onwards for her journeys to take Y to and from specialist provision, including the OT sessions started in November 2023.
45. Mrs X complained that the Council should have addressed transport sooner, when the OT provision started as part of the transition plan. She says the Council should have provided the driver and escort it accepted Y needed to travel to school in the morning.
46. The OT was part of a package of support delivered by the school to support Y's transition back into education. It was not section 19 provision. The Council did not have to provide transport to specialist provision if it was not commissioned under section 19, was arranged by the school, and Y was not a pupil at the school where the OT sessions took place. The Council was not at fault.

Communication

47. The Council has communicated key decisions in a timely manner. It held regular meetings with Mr and Mrs X. When it held professionals' meetings, it communicated the outcomes and decisions of those meetings.
48. In large part, Mrs X's concerns about communication result from the basic disagreement between Mr and Mrs X and the Council about what was best for Y. Mrs X did not agree that the school's plan to transition Y back into education was appropriate. The Council remained of the view that it was. This difference of opinion meant Mrs X felt ignored and unheard when the Council and the school continued with the plan. This is understandable but is not the result of fault by the Council.

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Final decision

49. I have completed my investigation. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman