Summary: The Council was at fault for failing to provide Y with the provision in his Education, Health and Care Plan, causing him to fall behind his peers, The Council was also at fault for charging Mr X school transport fees and for how it handled Mr X’s complaint. This caused injustice to Y and Mr X, however we are satisfied the Council offered a suitable remedy for the injustice caused.

The complaint

1. The complainant, whom I refer to as Mr X, complains the Council:
1. Breached its school transport policy by requiring him to pay for his stepson’s school transport.
2. Refused the investigate a breach of law by a social worker.
3. Did not properly consider safeguarding concerns about a teacher from an educational provider where his stepson attended.
4. Did not investigate his concerns about his stepson not receiving the special educational needs provision listed in his Education, Health and Care (EHC) Plan.
5. Failed to provide his stepson with full time education while he was out of school.
6. Handled his complaints poorly and not in line with its complaints processes.

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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. 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)
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
7. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
8. 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)

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How I considered this complaint

9. As part of this investigation, I considered the information provided by Mr X and the information provided by the Council. I discussed the complaint with Mr X over the telephone.
10. I sent a draft of this decision to Mr X and the Council and considered comments received in response.
11. 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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What I found

Legislation and guidance

12. 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.
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 or young person (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. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
15. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge. The relevant qualifying 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. ‘Eligible children’ include:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children aged eight and above);
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem;
• children living within walking distance of the school but who cannot walk to school because the route is unsafe; and
• children entitled on low-income grounds. (Education Act 1996, 508B(1) and Schedule 35B)
16. In deciding whether a child of statutory school age cannot reasonably be expected to walk for the purposes of ‘special educational needs, a disability or mobility problems eligibility’, a council will need to consider whether the child could reasonably be expected to walk if accompanied and, if so, whether the child’s parent can reasonably be expected to accompany the child. When considering whether a child’s parent can reasonably be expected to accompany the child, a range of factors may need to be considered, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied. The expectation is a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so (Department of Education 2014 home to school travel and transport guidance). 
17. In relation to children with SEN, 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 [2012] 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.

What happened

18. There has been extensive correspondence between Mr X and the Council. In this section of the statement, I summarise key events but I do not refer to every single contact and communication.
19. Mr X’s stepson, Y, has special educational needs (SEN). In February 2019 Y’s school asked the Council to assess Y for an EHC Plan. Y had been excluded several times and placed onto a part time timetable.
20. In March 2019, Y stopped attending his school and was moved to a Pupil Referral Unit (PRU). The Council issued Y’s EHC Plan in June 2019. By September 2019 Y had stopped attending the PRU.
21. When Y was out of school between July 2019 and November 2020, the Council put in place tuition for him. However, Y did not receive the special educational provision listed in his EHC Plan.
22. Mr X complained to the Ombudsman in 2021 about the time taken for the Council to carry out an EHC assessment and for failing to provide full time education to Y. He received a decision in June 2021. This investigation did not look at whether Y received the special educational provision in Y’s EHC Plan.
23. In November 2020, Y started a new school placement at a specialist school and was back schooled one year.
24. Mr X complained to the Council in May 2021 that Y did not receive adequate education while out of school nor the special educational provision listed in his EHC Plan. Initially the Council refused to consider this complaint and told Mr X it was being considered by the Ombudsman. However, following the Ombudsman’s investigation in June 2021, the Council agreed to consider Mr X’s complaint about Y not receiving the special educational provision listed in his EHC Plan.
25. In September 2021, the Council asked Mr X to pay school transport fees for Y, totalling £245. The Council said Y was over 16 years old and was not eligible for free transport.
26. In October 2021, the Council provided Mr X with a response to his complaint. The Council commissioned an independent person to review the complaint and findings. The Council:
• Apologised for the delay in responding to the complaint.
• Recognised the previous responses were unsatisfactory as the Ombudsman’s June 2021 investigation did not look at the provision listed in the EHC Plan.
• Upheld that Y did not receive the provision listed in his EHC Plan from July 2019, until he attended the specialist school in November 2020. The Council offered £6,600 for the lost provision, calculated at £600 per month for an 11 month period. The Council proposed to issue the payment to Y’s school so it could arrange for extra provision for him.
• Offered Mr X £300 for the time and trouble he had experienced in dealing with the complaint.
• Said the officers previously involved in the complaint have left the Council. The Council said it asked the assistant director of the Special Educational Needs team to ensure complaints are responded to on time.
27. Mr X responded to the Council on 19 October 2021. Mr X said Y did not receive full time education while out of school. Mr X also said the Council charged him for school transport and this should be refunded as Y was being back schooled as the Council did not provide him with adequate education previously. Mr X also said he spent money on legal fees and wants the Council to refund him for these costs.
28. In November 2021, the Council confirmed it would not charge Mr X for school transport for Y and will refund any sum Mr X already paid. Mr X asked the Council to also refund him for legal fees he had incurred dealing with the Council about this issue. However, the Council refused to do this.
29. Mr X made a formal complaint to the Council on 14 November 2021. Mr X said the Council demanded money from him at the last minute for school transport costs and this caused him aggravation. Mr X said the only reason Y was attending school now was due to the Council’s failures to provide him with suitable education in the past. Mr X said Y was still completing secondary school so the Council should have paid his school transport costs. Mr X said the Council should pay his legal fees and compensation.
30. The Council response to Mr X on 18 November 2021 and asked that he put all his complaints in one document so the Council could try to address these. The Council said Mr X raised several complaints and this is having an effect on resources.
31. In December 2021, Mr X met with the Council and set out his complaints. Mr X complained:
• The complaints procedure was not followed correctly on multiple occasions, some of which have been recognised. The timeframes have not been followed and issues were not resolved at the earliest opportunity.
• He has still not been fully informed about the outcome of a Section 47 investigation in June 2020.
• The SEN team could have acted more quickly to discuss back-schooling options with education settings, this could have reduced the time Y was missing full time education and support as set out in his EHC Plan. Mr X would also like to understand what mechanisms are now in place to identify children at risk of missing education in the future.
• Overall, the compensation awarded to date does not reflect the time and effort spent raising concerns.
• Neither of his stepchildren have had their annual reviews completed on time this year and the SEN team have not communicated effectively with Mr X and his family.
• There will not be enough time left in the academic year to make sure Y can use the £6,600 towards his education, therefore this money could go to waste.

32. In February 2022, the Council provided its final response to Mr X. The Council said:
• Its complaints handling was inadequate. It had already offered Mr X £300 for the distress caused but will increase this by a further £300.
• It told Mr X about the Section 47 investigations in June 2020 and sent him the investigation document.
• It was not at fault for not looking at back-schooling earlier as it is not within routine procedures to raise this. However, the SEN department are now working more closely with Education Welfare Services to have a more joined up approach.
• So far it offered Mr X £600 compensation for uncertainty and time and trouble, £300 towards his legal fees and £6,600 towards Y’s education, for the lack of SEN provision provided. The Council said it also offered Mr X a refund of his school transport costs.
• It conducted and Annual Review of the EHC Plans prior to Mr X moving out of the borough and then passed on this information to his new local authority.
• It has been in contact with the SENCO at School 2 to understand their plan for how the compensation money could best be used for Y’s education. School 2 recommended using the money for several items including one to one tutoring and revision materials. If School 2 has not used the full £6,600 by the end of Y’s placement, then we can send the remaining funding to the SEN team at your new council as they will be in the best position to work with your family to identify the best ways that this could be used for Y’s education.
33. Mr X remained dissatisfied and complained to the Ombudsman. The issues he raised are set out in ‘the complaint’ section above.

Analysis

Complaint a) Breached its school transport policy by requiring him to pay for his stepson’s school transport.

34. The Council’s school transport policy says it will only help eligible children with school transport costs. This is children aged 5-16. The Council sought to ask Mr X to pay school transport costs as Y was over 16. However, Y was being back-schooled and still completing his compulsory education.
35. The Council decided to exercise its discretion and remove the school transport costs for Y. The Council also refunded Mr X the costs he paid for school transport. Therefore, I am satisfied the Council has remedied any injustice caused by requiring Mr X to pay for school transport.
36. I recognise Mr X said he incurred legal costs as a result of the Council asking him to pay for school transport. We do not normally recommend that fees for this purpose are reimbursed as a complainant does not usually need a legal representative to help them make a complaint. I am satisfied it was not necessary for Mr X to obtain legal assistance to raise a complaint about this matter as he was able to raise a formal complaint and then bring this to the Ombudsman to consider. However, the Council has offered Mr X £300 towards his legal costs. I am satisfied that this is a suitable remedy in the circumstances.

Complaint b) Refused the investigate a breach of law by a social worker.

37. I have not investigated this complaint. Mr X has already raised this with Social Work England and the Information Commissioner’s Office. Social Work England carried out a fitness of practice review and found the allegations Mr X made could not be proven. I do not consider there is anything further we could add to the investigation. In addition, Mr X has already brought his concerns to the Information Commissioner.

Complaint c) Did not properly consider concerns about a teacher from an educational provider where his stepson attended.

38. I have not investigated this complaint. Firstly, this relates to issues when Y was at a PRU from March 2019 to September 2019. I am satisfied that too much time has elapsed since the matters complained about took place for us to be able to carry out an effective investigation. In addition, the matters Mr X has raised relate to the conduct of a teacher at the school. We do not investigate complaints about schools.

Complaint d) Did not investigate his concerns about his stepson not receiving the special educational needs provision listed in his EHC Plan.

39. The Council was at fault for failing to provide Y with the provision in his EHC Plan after it issued the Plan in July 2019 until Y started attending his school placement in November 2020. This caused Y injustice as he did not receive the provision he needed and fell behind his peers. As a result, Y is now being back schooled.
40. The Council has recognised this and offered £6,600 in funding towards Y’s education. The Council has paid this to School 2 and Y has received extra tuition. It is not clear if all of the funding has been used by School 2, however the Council agreed to transfer the remainder to Y’s new local authority area if any is left after the end of this academic year.
41. I am satisfied this was a reasonable remedy for the injustice caused to Y and was in line with our guidance on remedies.

Complaint e) Failed to provide his stepson with full time education while he was out of school.

42. I have not investigated this complaint as Mr X already complained to the Ombudsman about this and received a decision in June 2021.

Complaint f) Handled his complaints poorly and not in line with its complaints processes.

43. The Council was at fault in how it handled Mr X’s complaint. It initially told him it could not address his concerns about Y not receiving the SEN provision in his EHC Plan. This was fault. The Council also delayed in responding to Mr X at various stages of the complaints process.
44. The Council has however recognised the failures in its complaint handling and offered Mr X £600 for the distress, time and trouble he experienced in pursuing these matters. The Council also said it was currently reviewing and clarifying its process and policy to ensure all staff provide a response to complaints in good time. I am satisfied that this is a suitable remedy for the injustice Mr X suffered, and further investigation would not lead to a different outcome.

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Agreed actions

45. Within one month of my final decision, the Council agreed to pay Mr X the £600 it previously offered for the time and trouble he experienced and pay Mr X the £300 it previously offered to put towards his legal costs. The Council agreed to provide evidence to the Ombudsman it had done this.

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Final decision

46. I have completed my investigation and found the Council was at fault for failing to provide Y with the provision in his EHC Plan and for charging Mr X school transport fees. The Council was also at fault for how it handled Mr X’s complaint. This caused injustice to Y and Mr X, however I am satisfied the Council has offered a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman