Summary: Miss X complains the Council has failed to provide her child, Y, with transport to nursery and failed to provide the provision in his Education, Health and Care Plan. The Council acknowledges it is at fault for failing to provide transport and that Y has missed out on provision. The Council has agreed to remedy the injustice caused by the fault by making a payment to the family for loss of provision, distress and loss of opportunity. The Council has also agreed to make service improvements.

The complaint

1. The complainant, who I shall refer to as Miss X, complains the Council has failed to provide her son, Y, with transport to school despite it being approved by the Council and included in his Education, Health and Care (EHC) Plan.
2. Miss X also complains the Council has not provided Y with the education and specialist provision as set out in his EHC Plan.

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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 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.

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How I considered this complaint

6. I considered Miss X’s complaint and the information she provided.
7. I considered the information provided by the Council in response to my enquiries.
8. Miss X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments received before making this final decision.

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What I found

Law and guidance

9. Councils have a duty to provide free home to school transport for eligible children to qualifying schools (Education Act 1996, section 508B).
10. Eligible children can include children of compulsory school age who cannot walk to school because of their special educational needs, disability or a mobility problem (Education Act 1996, Schedule 35B).
11. The Council must provide free transport to the nearest qualifying school for children who are eligible because of their special educational needs or disability.
12. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
13. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
14. The Council has a duty to secure the specified special educational provision in an EHC Plan for the child (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable.
15. The local authority is relieved of its duty to secure the special educational provision in the EHC plan, including securing a place in a school or college named in the plan, if the child’s parent or the young person has made suitable alternative arrangements for special educational provision to be made, say in an independent school or college or at home.

Personal budgets

16. A personal budget is an amount of money identified by the council to deliver provision set out in an EHC plan. Parents and young people can request a personal budget when the draft EHC plan is being prepared, reviewed or re-assessed.
17. Mechanisms for delivering personal budgets can be:
• Notional budget. This is where a council, school or college holds funds and commissions support.
• Direct payments. This is where a young person/parent is given money to contract, purchase and manage the services themselves.
• Third party arrangements. This is where direct payments are paid to and managed by an individual or organisation on behalf of the parent or young person.
• Combination of the above.

Key phase transfers in education

18. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education.
19. Section 9.148 of the SEND Code of Practice (the Code) says, ‘for children within one to two years of starting compulsory education who are likely to need an EHC Plan in primary school, it will often be appropriate to prepare an EHC Plan during this period so the EHC Plan is in place to support the transition to primary school’.
20. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest, for transfers into or between schools. The key transfers are:
• early years provider to school 
• infant school to junior school 
• primary school to middle school 
• primary school to secondary school, and 
• middle school to secondary school. 

The Council’s Travel Assistance Policy

21. The Council provides transport assistance in cases where an early years setting is named in a child’s EHC Plan, where it is considered that, without transport assistance, the child would be unable to access the education provision specified.
22. Parents are responsible for escorting their child to and from the designated pick up and drop off point for the vehicle.
23. The Council will only provide transport where the family has no access to a vehicle or where the parents/carers are unable to do so, for example, they do not drive.
24. A passenger assistant will be provided on Council-organised transport in the following circumstances:
• The child is aged five or under;
• The child has assessed communication difficulties that prevent them alerting the driver to a problem; and
• Where the child has individual needs which, in the Council’s risk assessment, require provision of a passenger assistant.
25. As part of the annual review of the EHC Plan, the travel arrangements for the individual will also be reviewed.
26. The nature of placements means that overall transport arrangements must be flexible and take into account any new child requiring transport during the course of the year.

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What happened

27. Miss X has two children, Y and Z, who attend the same educational setting, School 1.
28. Y is of nursery age and in December 2022 the Council issued an Education, Health and Care (EHC) Plan for him. Y’s EHC Plan named the nursery at School 1 as the placement to meet his needs. Y’s EHC Plan also stated transport to School 1 was essential for Y.
29. The Council provides transport to Z, Y’s brother, to take him to and from School 1. Z’s school day begins 15 minutes before Y’s. School 1 does not have the resources to supervise Y for the 15 minutes before his school day starts and therefore they are unable to share transport. The Council says Y and Z require two separate taxis and Y also requires a chaperone due to his age.
30. Due to the absence of any transport for Y, he has not accessed provision at School 1.
31. The Council acknowledges in its response to Miss X’s complaint that there was a delay in providing transport to Y and as a result, Y has not been able to access provision at nursery. The Council said it was continuing to try and arrange transport for Y.
32. In March 2023 the Council offered Y to be transported to nursery in an individual taxi along with the support of a passenger assistant. For the return journey, it suggested Miss X act as Y’s passenger assistant. Miss X declined this offer because she was unable to make her own way to School 1 in order to travel on the return journey with Y. Miss X was also concerned Y could not walk the distance between school and home.
33. Miss X advised the Council that Y would remain at home until the term after his 5th birthday.
34. Miss X complained to the Council that she had contacted her caseworker on several occasions about a personal budget to enable her to arrange the Speech and Language Therapy (SaLT) and Occupational Therapy (OT) in Y’s EHC Plan. The Council said it did not have a record of these requests because the caseworker was on sick leave. The Council apologised that Miss X’s requests had gone unanswered.
35. The Council issued an updated Phase Transfer EHC Plan for Y that named School 2, a specialist setting, as the placement he would attend as of September 2023. In its complaint response to Miss X, the Council said the SaLT and other therapies in Y’s EHC Plan did not necessitate a personal budget. The Council said the provision would be in place through Y’s specialist setting as of September 2023.
36. Y’s placement at School 2 commenced in September 2023 and the Council has provided transport.

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Analysis

37. It is particularly important in the early years that there is no delay in making any necessary special educational provision. Early action to address identified needs is critical to the future progress and improved outcomes that are essential in helping the child prepare for adult life (Preparing for adulthood from the earliest years, Chapter 8 of the Code).
38. Y’s EHC Plan from December 2022 shows transport to School 1 was essential. The Council has acknowledged it was at fault for not providing Y with transport. This meant he was unable to access the educational and specialist provision specified in his EHC Plan.
39. There is further fault with the Council’s offer of transport as described above at paragraph 32 because it failed to provide a passenger assistant on the return journey. I have found further fault because the Council’s policy says it will provide a passenger assistant for those children under the age of 5 and Y was aged 4 at the relevant time.
40. The Council is relieved of its duty to secure the provision in the EHC Plan if the child’s parent has made suitable alternative arrangements for special education provision to be made. In this case, suitable alternative arrangements were not in place and the Council did not secure the full provision as specified in Y’s EHC Plan. This is also fault.
41. I acknowledge the Council’s transport offer to Miss X as referred to above at paragraph 32, but as this was not possible, the Council should have provided alternative education to Y. I have seen no evidence the Council considered alternative ways to deliver the provision in Y’s EHC Plan.
42. After the updated Phase Transfer EHC Plan was issued in May 2023, Miss X was advised a personal budget was not necessary for the SaLT and OT because Y would receive the provision when he begins his placement in September 2023. This created further delay in Y receiving provision and no alternative was offered, despite Miss X’s requests. I consider this was another missed opportunity to arrange provision for Y.
43. To conclude, I find the Council at fault for not delivering the provision or taking any steps to satisfy itself that Y was receiving the specialist provision identified in his EHC Plan. This has caused an injustice to Y as he has missed out on educational opportunities and experiences that he would have gained. By not making the provision accessible, Y has missed out on his progress and development being monitored by professionals within the early years setting.
44. This has also caused an injustice to Miss X, who has been impacted by a loss of opportunity having to care for Y when the provision should have been in place and distress at the lack of action by the Council. Miss X is extremely worried about the potential detrimental impact the fault has had on Y’s development.
45. The fact that Y has not received any of the provision he was assessed as needing at a key stage of education puts this case at the higher range of what we would normally recommend as a payment to recognise loss of provision.

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Agreed action

46. As per our guidance on remedies, where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. I consider it fair to arrive at the highest point of the recommended remedy, due to the reasons referred to above at paragraph 43. Using the figure of £2,400 for two terms, Spring 2023 and Summer 2023, I have arrived at the amount of £4,800.
47. To remedy the injustice, the Council has agreed, that within four weeks of this final decision, it will:
• Pay Miss X an amount of £4,800. This is a symbolic payment to acknowledge the loss of educational provision that the Council should have delivered and the impact this has had on Y. I recommend Miss X uses this payment for the benefit of Y’s education.
• Pay Miss X an additional amount of £500 to acknowledge the loss of opportunity, distress and impact on Miss X and her family.
48. The Council has also agreed that within two months of this final decision, it will explain what it will to do to ensure sufficient processes are in place to reduce the risk of provision not being delivered.
49. The Council will provide us with evidence it has complied with the above actions.

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Final decision

50. The Council acknowledges it is at fault for failing to provide transport to Y. This fault caused an injustice to Miss X and to Y. The Council has agreed to our recommendations to remedy the injustice. Therefore, I have completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman