Summary: The Council was at fault for failing to ensure Y’s final amended Education, Health and Care (EHC) Plan was issued within statutory timescales following the annual review. The Council was also at fault for failing to consider the relevant circumstances of Y’s school transport application when deciding to award them a personal travel budget instead of council organised transport. The Council has agreed to apologise and make a payment to remedy the distress, frustration and uncertainty caused.

The complaint

1. Mrs X complained of the Council’s handling of her son’s (Y’s) EHC Plan following the annual review and school transport request. Mrs X said the Council could not consider her school transport request for Y until it issued the final amended EHC Plan and named Y’s school placement. She said the delay in issuing the Plan meant Y had no Council organised transport for the first two months of the school year.
2. Mrs X also complained the Council’s process for awarding school transport is flawed. Mrs X said this has caused distress, frustration and uncertainty.

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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. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
5. 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(1), as amended)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted)

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant Law and Guidance

Annual Review

9. 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. 
10. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
11. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

School transport

12. Councils have a duty to publish a transport policy statement setting out the transport arrangements they consider it necessary to make to facilitate attendance at education or training and the financial help available for:
• learners of sixth form age (aged 16-19 if they started the course before their 19th birthday); and
• learners with EHC Plans up to the age of 25 who started their programme of learning before their 19th birthday. (Education Act 1996 section 509AA).
13. The legislation gives the Council the discretion to decide what transport and financial support are necessary to help young people attend school or college. This means the Council can decide what level of support it may offer, in order to help a learner get to school or college. 
14. The statutory guidance says Councils must act reasonably when making these decisions. It must take into account all relevant matters affecting a situation and what Special Educational Needs a learner has, if relevant. 

The Council’s school transport policy

15. The policy says transport assistance for 16-19 year olds is usually provided via a Personal Transport Budget (PTB), which is a monthly advance payment to help parents / carers get their child to school, i.e. not via taxis or Council fleet minibuses.
16. The policy says requests for council organised transport will be considered via the PTB appeals process on a case by case basis.

Background

17. Mrs X has a son Y with special educational needs and an EHC Plan in place
18. In November 2023, an annual review meeting was held for Y’s EHC Plan. The Council decided the Plan needed amending so it should have issued the final amended EHC Plan within 12 weeks of the meeting.
19. In March 2024, Mrs X applied for school transport as Y was starting post 16 education at a new setting in September 2024. Y previously had council organised transport to get him from his house to his old school. Mrs X wrote on the application that Y was unable to navigate public or private transport due to social anxiety and emotional dysregulation. The Council told Mrs X it could not consider her application yet as it must issue the final EHC Plan first naming Y’s school placement.
20. In August 2024, the Council issued Y’s Final EHC Plan and the following month it considered Mrs X’s application for school transport. The Council awarded and implemented a Personal Transport Budget (PTB) for Y in mid-September and backdated this to the start of the year.
21. The day after the Council implemented the PTB Mrs X appealed this at stage one. She said Y was unable to use public transport due to his anxiety and there was no one available to drive him to school. She also said the school was 17 miles away and public transport would take over two hours.
22. In mid-October 2024, the Council concluded PTB was not suitable and council-organised transport such as a taxi was the only suitable available option. This was in place by early November 2024.
23. Mrs X made a complaint about the delays with issuing the final EHC Plan following the annual review which in turn delayed the Council considering Mrs X’s transport request. She also complained Y had council organised transport (a taxi) through secondary school but there was no option for automatic entitlement to this when he moved school. Mrs X said the current process of only awarding 16 to 19 year olds a PTB was not adequate.
24. The Council issued a complaint response apologising for the delay in sending an amended EHC Plan following the November 2023 annual review. It said it was recruiting more staff to complete annual review work. The Council also advised the only offer for 16-19 year olds is a PTB, there is no automatic offer of a taxi. The Council said if the applicant would like a taxi, they must appeal the offer of PTB.
25. Mrs X remained dissatisfied with the matter and complained to us.

Council’s response to our enquiries

26. The Council has not provided evidence of its decision-making when awarding Y a PTB rather than council organised transport. This is because it said the decision to award PTB was a default one.
27. The Council said the process for considering individual and exceptional circumstances is through a two-stage appeals process. Stage one is reviewed by senior officer and stage two is heard by an independent panel.

My findings

Annual review

28. The Council held Y’s annual review meeting in early November 2023 and decided to amend Y’s EHC Plan. This meant the Council should have issued the final amended EHC Plan by late January 2024. The Council did not do this until late August which was a delay of seven months and fault. This caused Mrs X distress, frustration and uncertainty. It also meant there was no school transport in place for Y for the start of the school year as it could not consider the transport application before the final EHC Plan was issued.
29. We have found similar fault with the Council on a separate case. Following that case, the Council agreed to consider if there was a systemic issue with delay in completing annual reviews and if so, what steps the Council intended to take to ensure reviews are completed within statutory timescales. Therefore, it does not require a further service improvement.

School transport

30. Mrs X complained Y had council organised transport (a taxi) through secondary school but when he moved to post 16 education she could only apply for and be awarded a PTB without appealing. Whilst the Council has discretion to decide what transport and financial arrangements are necessary to help young people attend school or college, it must take into account all relevant circumstances and consider each individual application on a case-by-case basis. The Council’s policy does not allow for it to consider the individual needs of applicants without appealing which is fault. This delayed Y getting the transport required to meet their needs.

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Action

31. Within one month of the final decision, the Council has agreed to:
1. Apologise to Mrs X for the delay in issuing Y’s EHC Plan which in turn delayed Mrs X’s school transport application being considered. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
2. Pay Mrs X £400 to recognise the distress, frustration and uncertainty caused by the delays.
32. Within three months of the final decision, the Council has agreed to:
1. Review and amend its school transport policy to ensure that it is considering applications on a case by case basis and exercising discretion at the application stage to issue council organised transport where appropriate.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman