Summary: Mr B complains the Council delayed issuing his son with an Education, Health and Care plan, and he had to meet the cost of his son’s provision during the delay. We have found fault with the Council for its delay issuing Mr B’s son’s Education, Health and Care plan. The Council has agreed to take action to remedy the injustice to Mr and his son.

The complaint

1. The complainant, who I shall refer to as Mr B, complains the Council delayed issuing his son with an Education, Health and Care (EHC) plan, and he had to meet the cost of his son’s provision during the period of delay. Mr B also complains the Council did not award his son school transport.

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The Ombudsman’s role and powers

2. 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)
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. I considered:
• Mr B’s complaint and the information he provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
7. I considered Mr B and the Council’s comments on a draft decision before making my final decision.

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What I found

Legislation and guidance

8. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them.
9. When a parent or carer asks a Council for an EHC assessment, the Council must reply within six weeks. (Special Educational Needs and Disability Regulations 2014)
10. Where a child or young person moves to another Council, the ‘old’ Council must transfer the EHC plan to the ‘new’ Council. The new Council must tell the child’s parent or the young person, within six weeks of the date of transfer, when it proposes to make an EHC needs assessment. (Special Educational Needs and Disability Regulations 2014)
11. The EHC plan is set out in sections which include.
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and type of school.
12. When a Council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to:
• make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan; and
• require the local authority to arrange a meeting between them and an officer of the local authority at which the draft plan can be discussed. (Special Educational Needs and Disability Regulations 2014)
13. A Council must send the finalised EHC plan as soon as practicable, and in any event within 20 weeks of the Council receiving a request for an EHC needs assessment in accordance with section 36(1) of the Act, or of the Council becoming responsible for the child in accordance with section 24 of the Children and Families Act 2014. (Special Educational Needs and Disability Regulations 2014)
14. The finalised EHC plan must be in the form of the draft plan sent in accordance with regulation 13(1), or in a form modified because of the representations made in accordance with that regulation. (Special Educational Needs and Disability Regulations 2014)
15. Councils must arrange for parents and young people to receive information about mediation. (Special Educational Needs and Disability Regulations 2014)
16. The Tribunal hears appeals against decisions made by councils in England in relation to children's and young people’s EHC needs assessments and EHC plans. (Special Educational Needs and Disability Regulations 2014)
17. Where the Tribunal orders a council to amend an EHC plan, the Council shall amend the EHC plan within 5 weeks of the order being made. (Special Educational Needs and Disability Regulations 2014)
18. School transport law is set out in the Education Act 1996 (the Act), as amended by the Education and Inspections Act 2006. Schedule 35B of the Act defines eligible children (those who qualify for free transport) as:
• children unable to walk to school by reason of their special educational needs, disability, or mobility problem (including temporary medical conditions);
• children unable to walk in safety to school because of the nature of the route, and;
• children living outside ‘statutory walking distance’, which is two miles for children under eight and three miles for older children. Special rules about distance apply to children from low income families.
19. In 2017 the Ombudsman published a focus report ‘All on board? Navigating school transport issues’. The report covered issues with school transport for children with special educational needs. It advised, for children with special educational needs, if a school is the only school named in an EHC plan, this means it is the nearest suitable school for school transport.

Council school transport policy

20. I have set out below relevant points from the Council's policy.
21. Free transport is provided for children of statutory school age who attend the nearest catchment school or nearest available school for their age and educational needs, provided they meet the distance and age criteria which includes children eight years old and over and living more than three miles from school.
22. For pupils who have an Education, Health and Care plan transport will be provided, subject to the distance criteria above, to the school named within their plan as the nearest suitable school that can meet their assessed needs. Transport will not be provided to a school named within a plan as a school of parental preference where a nearer suitable school has been identified that can meet the child’s assessed needs, as this is the responsibility of parents and guardians.
23. Free transport is also provided for pupils who are unable to walk to school because of mobility problems or a severe medical condition, unless the distance to the establishment attended is such that the applicant could reasonably be expected to make their own way using a wheelchair or other suitable alternative, accompanied as necessary.
24. Transport may also be provided if there are associated health and safety issues related to a child’s special educational needs or disability of such severity that it means they could not reasonably be expected to make the journey to and from school even if accompanied.

What happened

25. Mr B and his family lived in a different council area when a referral was made for his son S, to be assessed for an EHC plan. The family moved to this Council in November 2018 when S was eight.
26. On 12 November 2018, Mr B confirmed with his ‘old’ Council that his family had moved to Norfolk County Council. Mr B’s ‘old’ Council shared S’s EHC assessment paperwork with the ‘new’ Council. Mr B placed S in an independent school (School F) in the year below his peers. Mr B said this was as an interim measure until the Council identified a suitable educational provider as part of the EHC assessment process.
27. The Council’s first case recording for S was on 14 November 2018. A week later the Council told Mr B it would write S’s EHC plan.
28. In January 2019, the Council told Mr B there would be a delay issuing S’s EHC plan because it had to enquire about speech and language support.
29. Mr B complained to the Council in February 2019. The Council apologised for the delay and any frustration this may have caused.
30. The Council consulted School D, a mainstream school, about a place for S.
31. In March 2019, the Council issued a draft EHC plan. It named School F and commented “a mainstream secondary school, however, the parents have chosen to educate their child at [School F], a non-maintained independent establishment and are, therefore, responsible for school fees and transport”.
32. The Council held a planning meeting two weeks later with Mr B. Mr B told the Council S was in the year below his peers at School F. The Council advised it had asked an educational psychologist to decide which year S should be educated in.
33. In April 2019, Mr B responded to the draft EHC plan. He explained why he wanted S educated in the year below his peers and to attend an independent school. He also gave feedback on individual sections of the plan. Mr B complained about the delay finalising S’s EHC plan.
34. Mr B asked the Council to escalate his complaint. Again, the Council apologised for the delay. Mr B asked for the complaint to be escalated to the Director of Children’s Services. The Council upheld Mr B’s complaint.
35. School D responded to the Council in April 2019. The school said it could not meet S’s needs without significant extra funding and support.
36. Mr B asked the Council to consult with School E, an independent school.
37. The Council issued S’s final EHC plan on 3 June 2019 naming School F and noting this was parental choice and S’s parents would pay the fees. The Council stated that should S’s parents feel unable or unwilling to continue to pay the fees, it would secure a placement for S in a mainstream school.
38. In July 2019, the Council consulted with School E. School E said it could meet C’s needs and he could start at the School in September 2019. The Council considered Mr B’s request for S to attend School E. The Council decided not to fund a place for S at School E because a mainstream school could meet his needs and this would be a more efficient use of resources.
39. School F changed from an independent to a mainstream school in the summer of 2019. In August 2019, the Council consulted with School F. The Council reissued S’s final EHC plan because School F had become a mainstream school.
40. Mr B asked if he could have a personal budget for S and use this towards a placement at School E. The Council said a personal budget could not be used to pay school fees. Mr B explained the personal budget would be for extra support for S, not school fees. The Council told Mr B he could speak to School F about having direct payments explaining these would come out of the budget given to the School to meet S’s needs.
41. Mr B was unhappy with the content of the final EHC plan and met the Council for mediation. The Council’s record of the meeting state School F expected S to attend in September 2019 and Mr and Mrs B agreed to fund his transport costs. This is not recorded in the minutes made by the mediation service.
42. Mr B appealed to the SEND Tribunal in September 2019 on the basis the Council should pay for S to attend School E.
43. In February 2020, the tribunal ordered the appropriate wording for section I of S’s EHC plan was “Education Setting Name: [School F]”. It also found that private tuition for S was not a social care provision and noted the social care assessment did not identify any social care needs.
44. The Council issued S’s final EHC plan in March 2020. It named School F in section I and the setting as mainstream.
45. Mr B complained the Council has not provided transport to School F. In response to my enquiries the Council explained, “transport is not listed within the EHCP as SEN provision and additionally, [S’s] catchment school of [School D] advised the Council they felt able to meet his needs.”

Analysis

46. The Special Educational Needs and Disability Regulations 2014 set out timescales for assessments and issuing EHC plans.
47. The Council met the timescale for telling Mr B it would write an EHC plan for S. It met with Mr B to discuss S’s EHC plan and gave him 15 days to comment on the draft. This was in accordance with the Special Educational Needs and Disability Regulations.
48. The Council considered Mr B’s request for direct payments. It explained direct payments would have to come out of S’s educational budget and he would need to agree this with S’s School. The Tribunal found S had no social care needs. This supports the Council’s explanation that direct payments would need to come out of S’s educational budget.
49. The Council had 20 weeks from the date it became responsible for S to complete the EHC plan process. The Council became responsible on 14 November 2018 so the deadline for its completion was the end of March 2019. The Council issued S's final EHC plan in June 2019, this was a delay of 13 weeks and was fault. The Council reissued the final EHC plan in August 2019 because School F changed from an independent to a mainstream school.
50. The Council’s delay did not impact on S’s educational placement. S was attending School F as parental choice during the delay and this is the School the Tribunal ordered him to attend. The Tribunal ordered the Council to name School F after it had changed from an independent to a mainstream school confirming S’s needs could be met in a mainstream placement. Therefore, it was parental choice for S to attend School F from November 2018 to June 2019. The Council is not responsible for S’s school fees for the academic year 2018/19.
51. Neither did the delay affect S’s educational provision. Mr B placed S in School F in November 2018 because it could meet his needs. The Tribunal confirmed this continued to be the case when School F changed from an independent to a mainstream school as it ordered the Council to name it in S’s EHC plan.
52. The Council’s delay prolonged the time Mr B had to wait to access his appeal rights and meant he was put to time and trouble chasing the Council.
53. The Council issued S’s amended EHC plan within five weeks of the Tribunal order. This was within the timescale specified by the Special Educational Needs and Disability Regulations.
54. The Council say S’s catchment school is School D. School F was named in S’s EHC plan and the Council did not record that there was a nearer suitable school or that School F was parental preference. Therefore, School F was S’s nearest suitable school for the purpose of assessing his school transport application. S was eight years old when he moved to this Council and School F is less than three miles from S’s home. However, the Council also needed to consider whether S could not reasonably be expected to walk for the purposes of ‘special educational needs, a disability or mobility problems eligibility’. The Council had to consider whether S could reasonably be expected to walk if accompanied and, if so, whether his parents could reasonably be expected to accompany him. There is no evidence the Council did this, which is fault.

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Agreed action

55. Within two months of the final decision, the Council will:
• Pay Mr B £150 to recognise the time and trouble he spent chasing the Council and the delay in accessing his appeal rights.
• Reassess Mr B’s application for school transport for S. If S is found to be eligible, the Council will reimburse Mr B the cost of transporting S to school from the date of its original decision not to award transport.
56. The Council should provide the Ombudsman with evidence these actions have been completed.

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Final decision

57. I have completed my investigation and uphold Mr B’s complaint. Mr B has been caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman