Summary: Miss B complained the Council failed to provide solo school transport as it agreed to do, failed to provide her with support when she homeschooled her daughter, delayed increasing her daughter’s education provision, recorded inaccurate comments about her mental health in an assessment and wrongly said her daughter was not entitled to services from the disabled children’s team. The Council’s communications around the outcome of the transport appeal were poor and its complaint response contained incorrect information about her daughter’s entitlement to services from the disabled children’s team. That caused Miss B frustration. An apology is satisfactory remedy. There is no fault in the remainder of the complaint.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained the Council:
• failed to provide solo school transport as it agreed to do following an appeal;
• failed to provide her with support while she homeschooled her daughter;
• delayed increasing her daughter’s education provision between 2018 and 2020;
• recorded inaccurate comments about her mental health in a social work assessment;
• unreasonably said her daughter was not entitled to services from the disabled children’s team;
• failed to address issues with her daughter’s transport to school in 2014 which resulted in her being homeschooled; and
• failed to ensure her daughter’s education, health and care plan reflects her diagnosis and needs.
2. Miss B says the Council’s failures have caused her significant distress.

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What I have investigated

3. I have investigated the first five bullet points in paragraph 1. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

4. 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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Miss B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1), as amended and 34(3))
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. If we are satisfied with a Council’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)

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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. 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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What I found

Background - education provision

10. Miss B’s daughter was attending a school placement when Miss B decided in November 2016 she wanted to electively home educate her daughter due to concerns about school and transport provision. An officer from the Council’s elective home education team visited Miss B to discuss that in December 2016. Miss B began home educating her daughter in February 2017.
11. An officer from the Council’s elective home education team visited Miss B on 6 July and 12 October 2017.
12. The Council was due to carry out a review of Miss B’s daughter’s education, health and care plan in November 2017. Miss B cancelled the visit. The Council tried to contact Miss B to rearrange the annual review in November and December 2017. The Council then booked the annual review for March 2018. That had to be rebooked and the review took place in April 2018.
13. An officer from the Council’s elective home education team was due to visit Miss B in April 2018. Miss B cancelled the visit as she was away from home. The Council asked Miss B for evidence of the education she was providing for her daughter. The Council contacted Miss B again in June to explain it had a legal obligation to act where a child educated at home was not receiving a suitable education. The Council said because it had not received any contact from Miss B it had passed her case to the children missing education team. The Council asked Miss B for evidence of the education provided to her daughter.
14. In June 2018 Miss B asked the Council to provide a specialist placement for her daughter on a part-time basis to meet her social needs while Miss B continued to provide education at home. The Council identified a placement and Miss B’s daughter began attending part-time from September 2018. That was initially for one afternoon a week and was then increased to two afternoons and now three afternoons. Miss B asked for an additional hour in 2020 which the Council has agreed.

Background - school transport

15. Miss B applied for school transport for her daughter to attend the part-time placement in December 2018. The Council refused the application as Miss B’s daughter lives less than the statutory distance from the school. Miss B appealed. The appeal panel considered the case in April 2019. The appeal panel decided to provide travel assistance in the form of a hired vehicle and PA.
16. Miss B did not accept the school transport offered as she believed panel had awarded solo transport and the transport provided was shared with other children. In June 2019 though Miss B accepted the transport on a trial basis. The Council made arrangements for the transport to begin although it was for Miss B’s daughter to be on her own due to the existing transport being full. Miss B told the Council she had already made alternative arrangements for the rest of the academic year and did not want the transport until the start of the new academic year.
17. Miss B’s daughter began using the shared transport from September 2019.

The Council’s elective home education policy

18. The policy records this is different to home tuition provided by a local authority or education provided by local authority other than at school. It says parents are responsible for ensuring children receive a suitable education.
19. The policy references the House of Commons education select committee report ‘Support for Home Education’ in 2012 which says the role of the local authority involves two duties. The first is to provide support for home educating families at a level decided by local authorities themselves. The second, if families wish it, is to intervene with families if the local authority is given reason to believe a child is not receiving a suitable education.
20. For children with an education, health and care plan, the policy says where parents decide to educate at home the Council is not under a duty to make the special educational provision set out in the plan provided it is satisfied the arrangements made by parents are suitable. It says though the Council must review the plan annually to assure itself the provision in it continues to be appropriate and the child’s special educational needs continue to be met.
21. The policy says the Council has no legal power or duty to monitor home education on a routine basis.

Analysis

22. Miss B says a transport appeal panel agreed to provide solo transport for her daughter but the Council instead arranged shared transport. I have considered the documentary evidence for the appeal. This shows Miss B asked for solo transport for her daughter. Although Miss B did not attend the appeal a Councillor attended on her behalf and raised concerns about the suitability of shared transport. The record of the decision itself does not say panel agreed solo transport. Instead the decision records panel agreed provision of transport either through a personal transport budget or a taxi and PA. There is no reference to the taxi being a solo taxi only for Miss B’s daughter. That is also not referenced in the formal record of the decision or in the email to Miss B telling her about the decision. However, there is reference in the notes from the appeal panel hearing to an update where the Council confirmed it could not provide a personal transport budget. It is recorded in those notes the appropriate transport would be a sole occupancy taxi to start with, with other children added as the term goes on and days are increased. Given this is recorded in the notes I can understand the confusion about the transport awarded.
23. As Miss B had asked for solo transport though I would have expected the appeal panel to address that point in its decision. I would also have expected the email telling Miss B about the outcome of the appeal to have made clear whether the transport offered was solo transport or shared transport. Failure to do that is fault. That has clearly caused Miss B some distress as she believes what the Council offered does not match what the appeal panel agreed. However, I do not consider Miss B has suffered a significant injustice as a result. That is because I note due to existing transport options being full the Council offered Miss B’s daughter solo transport in June 2019. The evidence I have seen satisfies me Miss B declined that option as she had already made alternative arrangements for her daughter. Given that, the fact the intention was for Miss B’s daughter to share transport with other children at some stage and as I understand shared transport has been in place since September 2019 with no issues I consider an apology a satisfactory outcome for this part of the complaint.
24. Miss B says the Council failed to provide her with support while she homeschooled her daughter. The evidence I have seen satisfies me Miss B chose to electively home school her daughter. In those circumstances the Council has a limited role as the responsibility for provision falls to Miss B, rather than the Council. That is, unless the Council has concerns about the education provided to the child or if the parent asks for support. Other than in those circumstances the Council’s role is largely limited to an annual check, which I am satisfied the Council carried out in this case. There is nothing in the documentary records to suggest during those checks Miss B raised concerns about needing support to provide education to her daughter. I therefore cannot criticise the Council for failing to put support in place. I am satisfied though when the Council raised concerns about the education provision for Miss B’s daughter not addressing her socialisation skills it acted to provide a part-time school placement alongside the homeschooling provided by Miss B. In those circumstances I have no grounds to criticise the Council.
25. Miss B says the Council delayed increasing her daughter’s education provision between 2018 and 2020. The evidence I have seen satisfies me Miss B continued to home school her daughter between those dates. The difference is the Council put in place part-time provision in a school setting to aid Miss B’s daughter’s socialisation skills. The evidence I have seen satisfies me the provision the Council put in place was not intended to address Miss B’s daughter’s education needs. That is something Miss B remained responsible for. I am satisfied the provision in place at school initially started at one afternoon a week, increased to two afternoons per week and then increased to three afternoons per week. I am also satisfied the Council agreed an extra hour at Miss B’s request. As I am satisfied the intention was to supplement Miss B’s daughter’s education by providing her with some provision in school to address socialisation and communication skills and that has been increased over time I do not have grounds to criticise the Council.
26. Miss B says the Council recorded inaccurate comments about her mental health in an assessment document and has included other inaccurate information in the assessment. For her mental health Miss B is referring to comments from the social worker about her being hypersensitive due to her experience of abuse of power by those in authority. I understand why that would have been difficult for Miss B to read. However, the social worker is entitled to express a professional opinion and it is not the role of the Ombudsman to comment on the merits of that judgement unless there is evidence of fault in how it has been reached. I have found no evidence of fault here. I am satisfied the remainder of the comments in the assessment Miss B is concerned about reflect the social worker’s assessment of her daughter and are partly based on the description of her special educational needs set out in her education, health and care plan, which I cannot criticise the Council for. In any event, I am satisfied the Council has agreed to put on file a copy of Miss B’s comments about that. I consider that a reasonable way forward.
27. Miss B says the Council has said her daughter is not entitled to services from the disabled children’s team. In contrast the Council says it is accepts Miss B’s daughter meets the criteria to receive a service from the disabled children’s team. The Council says the reason Miss B’s daughter is not receiving a service is because she disagrees with the assessment completed. Having considered the assessment documentation I am satisfied the Council has identified Miss B’s daughter meets the criteria for the disabled children’s team due to her severe communication difficulties. I understand Miss B is concerned about the remainder of the assessment as she says it is based on an outdated education, health and care plan, which she disagrees with. As I set out later in this statement, any concerns Miss B has about the content of the education, health and care plan are matters which fall outside the Ombudsman’s jurisdiction. Until the education, health and care plan is changed I cannot criticise the Council for relying on its contents when completing the social work assessment.
28. In any event, although Miss B has concerns about the description of her daughter’s diagnosis included in the education, health and care plan I am satisfied this has not affected the Council’s consideration of whether she qualifies for a service from the disabled children’s team. As I said, the assessment is clear she qualifies based on her severe communication difficulties. While the Council wrongly said that was not the case in its complaint response I am satisfied this is an error and it has since confirmed Miss B’s daughter is entitled to services but Miss B is refusing to accept them based on the current assessment. In those circumstances I do not consider Miss B has suffered any injustice from the incorrect information included in a complaint response as it has not affected provision of services to Miss B’s daughter.

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Agreed action

29. Within one month of my decision the Council should apologise to Miss B for miscommunications around the outcome of the transport appeal and entitlement to services from the disabled children’s team which have caused her distress.

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Final decision

30. I have completed my investigation and found fault by the Council in part of the complaint which caused Miss B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

31. I am not investigating Miss B’s concerns about what happened with her daughter’s school transport in 2014 as it concerns events which happened more than 12 months ago. If Miss B had wanted to complain about what happened in 2014 she would have needed to complain to the Ombudsman at the time. As she did not I see no reason to exercise the Ombudsman’s discretion to investigate this part of the complaint.
32. I am not investigating Miss B’s concerns about the content of her daughter’s education, health and care plan. That is because she can appeal to the special educational needs tribunal. The Ombudsman does not have jurisdiction to consider a complaint about matters where there is an alternative route for remedy.

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Investigator's decision on behalf of the Ombudsman