Summary: Ms X complained the Council refused to reimburse the costs for transporting her children to their special schools after she had moved into its area. We found fault because the Council had a duty to provide transport earlier than it did. To remedy the injustice caused, the Council has agreed to apologise and make a payment to Ms X.

The complaint

1. Ms X complains the Council has not agreed to reimburse costs she has incurred transporting her two children to separate schools named in their Education, Health and Care Plans (EHCPs) since the duty should have transferred to it by September 2022.
2. Ms X says she has suffered financially because of the Council’s refusal to pay these costs.

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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. 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).
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

7. I have considered all the information Ms X’s representative, Mr Y, provided and discussed this complaint with him. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. Ms X, Mr Y and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

9. A child with special educational needs (SEN) may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them.
10. The Council is responsible for making sure that arrangements specified in the EHCP are put in place.
11. The Special Educational Needs and Disability Code (the code) states that where a child or young person moves to another local authority, the old authority must transfer the EHCP to the new authority on the day of the move. If the old authority has not been provided with 15 working-days’ notice of the move, the old authority must transfer the EHCP within 15 working days beginning on the day on which it did become aware. (SEN Code paragraph 9.157)
12. The code also states that the old authority should also transfer any opinion they have received under the Disabled Persons (Services, Consultation and Representation) Act 1986 that the child or young person is disabled. Upon the transfer of the EHCP, the new authority becomes responsible for maintaining the plan and for securing the special educational provision specified in it. (SEN Code paragraph 9.158)
13. The code specifies that the requirement for the child or young person to attend the educational institution specified in the EHCP continues after the transfer. (SEN Code paragraph 9.159)

What happened

14. Ms X has two children, her daughter child A and her son child B. Ms X has asked Mr Y to represent her in bringing her complaint to the Ombudsman. Both A and B have EHCPs. Both children attend different special schools and need transport to get there as the schools are a significant distance away from their home.
15. During the school summer holidays in 2022, Ms X and her children moved home a short distance. This move brought them into the Council’s area. Until this time, another council nearby had been responsible for their education, maintaining their EHCPs and for transporting the children to their respective special schools.
16. At the beginning of September 2022, a case management service emailed both the old and the new councils. This email advised:
• details of the children and that they had moved into the new Council’s area;
• the old authority would need to liaise with the new authority regarding school placements and transport;
• that the old council had said it could still meet both children’s needs (provide them with school places); and
• the parents were not able to transport both children to school on a daily basis due to the considerable distance and therefore the matter would require urgent attention.
17. Later on in September 2022, the old council emailed the new Council formal ‘moving out’ documentation to properly transfer the EHCPs across.
18. At the beginning of November 2022, Mr Y emailed the Council to complain. He said:
• the EHCPs had not been transferred over and re-issued in the Council’s own format in the correct timescales;
• the Council should arrange transport by the beginning of December; and
• it should compensate the family for the losses incurred related to transporting both children since the date the EHCPs should have transferred to it in September.
19. The Council issued its stage one complaint response late in December 2022. In this email, it said;
• it could not take action until EHCPs were transferred to it which was later in September;
• EHCPs would be transferred over to the Council’s format by the end of December;
• as per its processes, school transport for the children was discussed early in October 2022 and transport was agreed;
• its transport team had not managed to arrange transport in its usual 20-day timescale and apologised for the delay; and
• that transport had been in place since late November 2022.
20. Mr Y later escalated the complaint to stage two of the Council’s process. The Council declined to provide any backdated payments towards transport costs for the children.
21. The Council signposted Mr Y to the Ombudsman if he remained unhappy. He then registered his complaint with us.

Analysis

22. For both A and B, the old council had transferred the EHCPs across to the new Council within 12 and 13 working days respectively. This meant that towards the end of September 2022, the Council’s duties had begun.
23. The code is quite clear that upon transfer the receiving council has a duty to maintain the plan, secure provision in it and that the child should continue to attend the educational setting specified in the EHCP. Exclusions relating to the named schools being too far after the home move do not apply in this complaint.
24. The Council did not dispute the contents of the EHCPs being transferred to it. Nor did it exercise its right to hold early reviews as it was entitled to do so under the code.
25. In its complaint responses to Mr Y, the Council took the view that once it agreed to school transport for a child, it aimed to set this up within 20 working days. The Council also took the view that until such time, the responsibility to transport the child in this interim period was that of the parents.
26. As part of my enquiries to the Council, I highlighted the relevant sections of the code (outlined above) and asked it to explain its rationale for this stance. I asked the Council to refer to specific guidance and policy in its answer.
27. In response, the Council repeated its stance that it took around 20 working days to organise transport and that the parents had been informed of this. It attached its transport policy for me but with no further comment.
28. I have viewed the policy and remain unsure what the Council’s rationale for its stance is. On the balance of probabilities and with no comment from the Council, I am satisfied it has likely treated the case as if it was an application for travel assistance under its general eligibility criteria for when a pupil moves school. This was rather than realising it had a duty to maintain the EHCP as it was, particularly in this case where neither child had moved school. In this case, it would mean transport was needed for the children due to the significant distance their schools are away from the new home.
29. Whilst I appreciate the Council had to source providers for A and B’s transport, this does not mean it did not have a duty to transport them whilst this was being arranged. EHCP provision at the named setting cannot be secured if the children cannot get to their schools.
30. I am satisfied, that in the circumstances of this complaint, the Council should have come to some form of interim arrangement with Ms X whilst firm transport plans were arranged so that its duty could be carried out in the interim. Not doing so was fault. As it was, Ms X paid for taxis for both children’s transport until the Council arranged transport began. This would have caused Ms X avoidable confusion, frustration and expense. I have made a recommendation below to remedy the injustice caused.
31. When the Council had discussed and agreed to fund the transport at the beginning of October 2022, there was a delay of 12 working days before any transport request forms were sent to the transport team to get things underway.
32. The Council apologised for this in its stage one response to Mr Y. It said it had reminded relevant officers to complete and send over transport request forms as soon as possible.
33. As part of my enquiries to the Council, I also asked it to comment on the delay further. The Council responded to say the delay was due to staff shortages.
34. This delay was avoidable and is fault. It meant that the time Ms X had to arrange her own transport for A and B was longer than it should have been. It would have caused avoidable frustration and distress. As the transport was then arranged there is no ongoing injustice to Ms X. My recommendation below will take account of the avoidable delay and linked injustice Ms X suffered.
35. In terms of remedying injustice caused, the Council’s timeline for how long Ms X had to transport the children herself is contradictory. The Council’s stage one response stated transport was in place by 24 November 2022. Its response to my enquiries stated transport was in place by 14 November 2022. The Council should clarify this when calculating the remedy payment due to Ms X as suggested below.

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Agreed action

36. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Ms X for the frustration and distress caused by its error;
• remind relevant officers of the duty the Council has to provide suitable transport from the date when EHCPs are transferred to it from another council;
• on receipt of receipts from Ms X, reimburse Ms X all reasonable costs incurred to transport A to school and back from 22 September 2022, until the date the Council organised transport began; and
• on receipt of receipts from Ms X, reimburse Ms X all reasonable costs incurred to transport B to school and back from 23 September 2022, until the date the Council organised transport began.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman