Summary: We will not investigate this complaint about free school transport provision. This is because there is not enough evidence of fault to justify our investigation.

The complaint

1. Ms Y complains the Council failed to reimburse her for the cost of transporting her son to and from his specialist school. Ms Y says this is despite a tribunal finding the named school in her son’s Education, Health and Care (EHC) plan was unsuitable and ordering her preferred school, which she had paid for her son to attend in the meantime, to be named instead. She also complains about the time it took the Council to respond to her complaint.
2. Ms Y says the cost the Council gave to the tribunal to transport her son to the preferred school was approximately £9,500. She says she had to spent time and money for a full academic year transporting her son to and from school, causing her inconvenience.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
4. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
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.

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How I considered this complaint

6. I considered the information Ms Y provided and the Ombudsman’s Assessment Code.

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My assessment

7. The Council issued a final EHC plan for Ms Y’s son in early February 2019. It named a school which it said would meet her son’s needs, but was not Ms Y’s preferred school. Ms Y contacted us to complain at this point. However, she then used her right to go to the SEND tribunal to challenge the school named in the EHC plan. The challenge was not upheld and the named school remained the same. Ms Y then chose to enrol her son in the preferred school, which was fee paying, and appeal the SEND Tribunal’s decision. From September 2019, as her son was attending a school which was not named in the EHC plan, the Council did not provide free home to school transport.
8. In August 2020, the Upper Tier of the SEND Tribunal found the school the Council had named in the EHC plan was not suitable for the child’s needs. It therefore found in Ms Y’s favour and named her preferred school in the EHC plan. Since September 2020, the Council has provided free home to school transport for Ms Y’s son.
9. Ms Y complained to the Council in October 2020 and in January 2021. The Council responded, but as she was unhappy with the response, Ms Y emailed the Council again in late April and early May 2021. The Council then issued its final response in June 2021, apologising for the delay in responding, but denying fault in the substantive matter. Ms Y then asked us to investigate the complaint.

Analysis

10. The Council issued the final EHC plan in time for an appeal to the SEND tribunal. When Ms Y appealed, she was not successful in changing the school named in her son’s EHC plan. Consequently, she chose to pay for her son to attend her preferred school, rather than accept a place at the school named by the Council. In choosing to send her son to a school not named in the EHC plan, she accepted the costs of the education he received and the costs of transporting him to and from her preferred school. It was not then until the Upper Tier of the SEND tribunal found in Ms Y’s favour, in August 2020, that the Council became responsible for the cost of home to school transport. Consequently, it is unlikely there will be sufficient evidence of fault in this complaint to justify our investigation so we will not investigate.
11. As we are not investigating the substantive matter, we will not investigate the time taken for the Council to respond to her complaint as this is not a good use of public resources.

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Final decision

12. We will not investigate Ms Y’s complaint because there is not enough evidence of fault to justify our investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman