The Ombudsman's final decision:
Summary: Miss X complained about the way the Council handled her daughter, Y’s Education, Health and Care Plan review in 2020, and that it delayed issuing its decision to maintain the plan for six months in 2021. Miss X also complained the Council incorrectly declined school transport for Y and its communication about matters was poor. We found the Council delayed in issuing its decision not to amend Y’s Education, Health and Care Plan by 15 weeks, however, it has already remedied the injustice that caused. There was no fault in the Council’s decision on school transport or in its communication with Miss X.
- Miss X complained about the way the Council handled her daughter, Y’s Education, Health and Care Plan review in 2020, and that it delayed issuing its decision to maintain the plan for six months in 2021. Miss X also complained the Council incorrectly declined school transport for Y. Miss X further complained about the way the Council handled her complaints about the matters and its poor communication since March 2020. Miss X stated this caused her and Y distress and frustration and caused Miss X to become unwell.
What I have investigated
- I have considered the Council’s actions from February 2020 to September 2021. I have not considered matters that Miss Y could have appealed to the SEND tribunal about for the reasons explained in paragraph 55.
The Ombudsman’s role and powers
- 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)
- 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)
- The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
- I read the documents provided by Miss X and discussed the complaint with her on the telephone.
- I read the documents the Council provided in response to my enquiries.
- Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Education Health and Care Plans
- A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
- The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
- 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/or type of school.
- Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.
Home to school transport
- Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their nearest suitable school. The travel arrangements must be made and provided free of charge. The nearest suitable school is the nearest school with places available that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have.
- If only one school is named in a young person’s EHC Plan, then that is the school the council has determined is the nearest suitable school for the child. It is therefore the nearest ‘qualifying school’ for the child to attend for school transport consideration. This is because the council has not made arrangements for the child to attend a closer school. (S and another v Dudley Metropolitan Borough Council  EWCA Civ 346.) Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.
- The Council’s procedure (SEN Travel Assistance Review/Appeal Process: Terms of Reference) states the SEND assessment and planning service is responsible for determining eligibility of home to school travel assistance for young people with EHC Plans. The document says the initial decision about a child’s eligibility for travel assistance will be made by the SEND key worker in line with the Council’s Home to School Travel Assistance policy.
- The Home to School Travel Assistance Policy states that to be eligible for transport the child must be attending the nearest suitable available school.
- The terms of reference say a parent can request a review of the SEND key workers decision about eligibility based on the distance or suitability of the route. They can also appeal about the transport arrangements the Council offers if it agrees a child is eligible.
- The Council’s complaints policy states that it will take 20 working days to investigate a complaint at stage 1. The timescale starts when the Council allocates the complaint to the investigating officer. It states where it does not accept a complaint at stage 2 it will write to the complainant to explain why.
- Y has special educational needs due to a disability. She has an EHC Plan which sets out her needs and the arrangements to meet those needs.
- In February 2020 Y was in the final year of primary school. The Council completed an annual review of Y’s EHC Plan. Miss X states she did not receive all the paperwork from the Council and so could not provide her input to the annual review. The records show Miss X confirmed receipt of the relevant paperwork in February. Miss X states she later phoned the Council to tell it pages were missing.
- In March the Council decided to amend Y’s EHC Plan and named the primary school she was already attending until July 2020. From September 2020 it named high school A. It also noted that ‘in line with parental preference, [Y] will attend [high school B] with parents being responsible for transport to and from school’. The Council wrote to Miss X and told her of its decision. It told her of her right to appeal to the SEND tribunal if she did not agree with the decision.
- Miss X contacted the Council and told it she intended to appeal the decision not to provide Y with transport to school B. She stated there was no difference in cost in providing transport to school A or to school B. Miss X stated she was on a low income and suffered from ill health.
- The Council responded to Miss X and signposted her to the website where she could find the information on requesting a review of the SEN transport decision. Miss X stated she printed off the application form and sent it in by post in March 2020.
- In March 2020 Miss X became unwell and was admitted to hospital for a short time.
- In June 2020 the Council completed an early annual review of Y’s EHC Plan. It decided to maintain, and not amend the EHC Plan. It told Miss X of her right to appeal to the SEND tribunal if she did not agree with the decision.
- In August 2020 the SEND Key Worker considered the review request for school transport. The Key Worker wrote to Miss X and told her that because Y was attending School B, which was not the nearest suitable school, she was not eligible for school transport. The Key Worker confirmed the EHC Plan stated transport to School B was the responsibility of the parent.
- Miss X responded and said she intended to appeal the decision as there was no difference in the mileage between the two schools and no cost difference. Miss X stated Y would not be returning to school until the Council arranged school transport. Miss X stated she had an older child who the Council had provided school transport for in the same circumstances five years previously.
- The Council responded and explained that School B was 2.6 miles further away than school A. It said as School B was not the named school on Y’s EHC Plan, and not the nearest suitable school, there was no transport appeal right.
- Miss X complained to the Council in August 2020. She complained that:
- her request to name only School B on the EHC Plan was ignored;
- she had not been allowed to appeal against the decision not to provide school transport for Y;
- the Council Officer had told her she could not appeal about the EHC Plan;
- the Council’s communication about the matters had been poor.
- The guidance says the Council should provide school transport for eligible children to their nearest suitable school. Y’s EHC Plan named School A as Y’s nearest suitable school. Miss X chose to send Y to School B which was further away. Y did not attend School A and therefore she was not eligible for school transport. There is no appeal right through school transport about the school named in an EHC Plan, that is a matter for the SEND tribunal. The Council considered the school transport request in line with its current policy and the statutory guidance. It clearly explained its decision to Miss X. There was no fault in the Council’s actions.
- We cannot consider matters that Miss X could have appealed to the SEND tribunal. Miss X had the right to appeal the content of Y’s EHC Plan. Miss X had the right to appeal against the named school, which was the nearest suitable school for transport purposes. The Council told Miss X of her appeal rights in March 2020, June 2020 and September 2021 but she did not appeal. Although Miss X was unwell in March 2020 and may have been unable to appeal, she had the opportunity twice more and it was reasonable for her to appeal.
- The Council took 19 weeks to issue its decision not to amend Y’s EHC Plan after the annual review in March 2021. That was 15 weeks longer than the statutory guidance allows and was fault. This caused Miss X frustration and distress however I could not say the outcome would have been any different had the fault not occurred. The Council has already identified the fault and apologised which is an appropriate remedy.
- Miss X asked the Council to complete an early review of Y’s EHC Plan in November and December 2020. I have seen no evidence the Council considered the request or responded to it. That was fault. However, on the balance of probabilities I do not find this caused Miss X or Y any injustice. This is because when the Council did complete the review of the EHC Plan it did not make any amendments to it.
- During the course of this investigation I have reviewed the communication between Miss X and the Council, and the Council’s complaint handling. Miss X sent several detailed emails to various Council Officers and Council departments. An appropriate Council Officer responded to Miss X’s communications in a timely manner. Its communication was clear and it offered further explanations of its decisions and reasoning when needed. The Council handled Miss X’s complaint in line with its policies and timescales. There was no fault in the Council’s actions.
- School B made a referral to the Education Welfare Officer in July 2021 as Y had not attended the school all year. The EWO contacted Miss X when she received the referral. There is no evidence to suggest the EWO was inappropriate in her conversation with Miss X and there was no fault in her making contact.
- I have completed my investigation. I found fault that caused injustice and the Council has already remedied that injustice.
Parts of the complaint that I did not investigate
- I have not considered the content of the EHC Plan or how the Council considered the information Miss X provided to the EHC Plan reviews. This is because Miss X had the right to appeal to the SEND tribunal about those matters on three separate occasions and I consider it was reasonable for her to have done so.
Investigator's decision on behalf of the Ombudsman