Summary: Mrs C complained the Council caused delays in the Education, Health and Care plan process for Miss X, failed to provide enough alternative provision, and wrongly refused to arrange transport directly to Miss X’s relevant educational provider. We found the Council at fault for causing delays in the EHC plan process and its complaints process. It also failed to provide Miss X with a full-time alternative provision and wrongly refused her school transport request. The Council should apologise and make payment to remedy the injustice its faults caused.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complained the Council:
• caused delays in the Education, Health and Care plan process for her daughter (Miss X);
• the alternative provision it provided was less than full time;
• wrongly refused to arrange transport to her daughter’s alternative provision placement; and
• caused delay in responding to her complaint.
2. As a result, Mrs C said she and Miss X experienced distress, and Miss X had a loss of educational provision.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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

6. As part of my investigation, I have:
• considered Mrs C’s complaints and the Council’s responses;
• discussed the complaints with Mrs C;
• considered the information the Council provided in response to my enquiries; and
• considered the relevant law, guidance and policy to the complaint.
7. Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and policy

Special educational needs

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. 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
9. We can consider the other sections of an EHC Plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
10. 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.

Reviewing an EHC Plan

11. 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.
12. Where a 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.
13. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”.
14. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents.
15. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative Provision

16. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
17. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
18. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
19. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
20. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
21. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Free School transport

22. A council must make provision for suitable free travel arrangement for an eligible child in its area. Transport should be in both directions from the child’s home to the relevant educational establishment, unless a parent has agreed voluntarily to make the arrangements. (Education Act 1996, section 508B)
23. An ‘eligible child’ includes a child who is of compulsory school age:
• with special educational needs; or
• is receiving education at a place other than at school following arrangements made under section 19 of the Education Act 1996.
24. A ‘relevant educational establishment’ for an eligible child is defined as:
• a qualifying school; or
• the place other than at a school, where the child is receiving education by virtue of arrangement made under section 19 of the Education Act 1996.

Council Transport Policy

25. The Council’s policy sets out when children who attend school are entitled to fee school transport. This is the case when a child attends the nearest qualifying school with available spaces and this school is within statutory walking distance. This is:
• over two miles from the home address for children under 8 years, or
• over 3 miles for child aged 8 or over.
26. The Council does not provide travel assistance at other times than the beginning and end of the school day. This includes to off-site educational placements.
27. Children or young people with special educational needs, disability or mobility problems are not automatically given travel assistance. However, they will qualify for free school transport to attend specialist provision or attend a named school beyond the Statutory Walking distance as set out in their EHC plan. This includes those attending specialist provision under emergency assessment.
28. The Policy says a child will qualify for free home to school transport to qualifying schools only. These are:
• Community, Foundation, or Voluntary Aided schools,
• Non-maintained special schools;
• Pupil Referral Units; and
• Academies and Free Schools.

Where a pupil is registered at a school but is attending a place other than a school as a result of temporary exclusion, the other place will be the relevant school in terms of travel eligibility for the temporary period.

What happened

29. Mrs C has a daughter, Miss X, who has and EHC plan which sets out her health conditions and special educational needs.
30. In 2019 Miss X’s EHC plan listed a school, School Y, which could meet her special educational needs.
31. In 2020 Miss X attended School Y three days per week. She started attending alternative provision at a farm school two days per week. This was arranged by School Y and not set out in her EHC plan.
32. In spring 2022, Mrs C said Miss X experienced bullying at School Y and it had failed to protect Miss X while in its care. She said as a result Mrs X experienced trauma and the school was no longer suitable. Miss X stopped attending School Y.
33. School Y held an annual review of Miss X’s EHC plan in summer 2022, which the Council attended.
34. Mrs C said the Council agreed to change Miss X’s school and she was told a new school placement would be in place by October 2022.
35. A month after the annual review School Y shared the review report and documents with the Council.
36. For the start of the 2022 to 2023 academic year, School Y and the Council arranged for Miss X to receive transport from her home to School Y. School Y were then to transport Miss X from its premises to the farm school two days per week.
37. In September 2022 the Council told Mrs C it intended to amend Miss X’s EHC plan. It shared its amendment notice 10 days later and send consultations to two other schools.
38. Mrs C told the Council the proposed transport arrangement was not suitable for Miss X as it caused her trauma and anxiety to return to School Y. She said she would not make use of School Y’s transport but would take Miss X herself to the farm school.
39. The Council arranged for Mrs C to be paid a fuel travel allowance, which she received. However, she continued to make it clear to the Council she did not transport Miss X voluntarily.
40. In November 2022 Miss X was removed from roll with School Y, but no other school was in place at the time as the Council was in discussions with Mrs C and another school regarding continuation of the farm school. During this time, the Council continued to fund Miss X’s fuel travel allowance for the distance to School Y.

Mrs C’s complaints

41. Mrs C complained to the Council about its failure to complete Miss X’s final amended EHC plan within statutory timescales. In a separate email, she also told the Council the transport arrangement to the farm school was not suitable for Miss X.
42. In response the Council accepted it had failed to adhere to the statutory timescales for the EHC plan process for Miss X. It apologised and said it was working on the plan.
43. Mrs C again told the Council the transport arrangement was not suitable. She said there were dates she could not transport Miss X and asked the Council to put direct transport from Miss X’s home to the farm school in place.
44. In response the Council told Mrs C, in error it had only logged her EHC plan process complaint but not her transport complaint. It apologised and said it would respond.
45. Over the following month, the Council communicated with Mrs C by phone and email. It explained its view was Miss X was not entitled to free school transport to the farm school. This was because:
• its Transport Policy says it will only provide transport to School Y as this was Miss X’s registered base of education where she was on roll;
• any off-site education was managed by School Y, and it would have to arrange the transport; and
• School Y had offered transport from Miss X’s home to School Y, and then a further transfer to the farm school.
46. Mrs C also appealed the Council’s Transport decision and explained her reasons why the proposed transport was not suitable for Miss X.
47. However, the Council told her she had no right of appeal as Miss X had a right to school transport to School Y, but not to the farm school. It also said it had provided Mrs C with fuel travel assistance, but it would arrange travel assistance to Miss X’s new school once this was listed in her EHC plan.
48. In late 2022 the Council shared its final amended EHC plan for Miss X with Mrs C. This listed a new school, which Miss X started in January 2023.
49. Mrs C asked to Ombudsman to consider her complaint.
50. Following our involvement, the Council provided its final complaint response to Mrs C regarding her transport complaint. It apologised for the confusion in its complaints handling. It also accepted if it had not caused delays in the EHC plan process, then Miss X’s school transport to her new school would have been resolved earlier.

Analysis and findings

EHC plan process

51. The Council agreed it was at fault for its failure to complete Miss X’s EHC Plan within the statutory timescales following the annual review. This was fault.
52. The Council should have finalised Miss X’s EHC Plan in October 2022, but this did not happen until two months later. I found as a result:
• Mrs C and Miss X experienced distress due to the uncertainty the Council’s delay caused; and
• Mrs C’s right to appeal the EHC Plan to a tribunal was delayed, if she wished to do so.

Alternative Provision

53. Miss X stopped attending School Y in Summer 2022. The Council was aware she was no longer receiving an education at School Y, but she was continuing to attend the farm school two days per week.
54. While I acknowledge, Miss X remained on roll with School Y until late 2022, she did not attend the school due to illness or other reasons. I am also mindful the Council had agreed it would amend her EHC plan and list a different school.
55. The Council therefore had a duty to make arrangements for the provision of suitable education, at school or otherwise, for Miss X who, because of illness or other reasons, would not receive suitable education unless such arrangements were made for her.
56. However, the Council did not arrange any further educational provision for Miss X until it listed a new school in her EHC plan in late 2022. This was fault. In reaching my view, I am conscious:
• the Council’s view was School Y was responsible for providing educational provision, or alternative provision, for Miss X. However, while the Council can delegate actions to schools, it remains its responsibility for ensuring appropriate full time provision is arranged;
• the farm school did continue to be available for Miss X, as this was arranged by School Y and later funded by the Council. However, this provision was for two days education and therefore not the full-time provision she was entitled to; and
• had the Council not caused delays in its EHC plan process, Miss X’s new school would have been put in place from October 2022.
57. I found the Council’s failure to arrange suitable alternative provision for Miss X caused her a four-month loss of educational provision from the start of the 2022-2023 academic year until the end of term in December 2022. In addition, I also found the uncertainty around the provision caused Mrs C and Miss X distress.

School transport

58. Mrs C told the Council its proposed transport for Miss X from her home to School Y, and then by School Y to the farm school was unsuitable. Instead, she said she would transport Miss X herself, but continued to ask the Council to provide free school transport directly to the farm school.
59. The Council paid Mrs C fuel travel allowance but decided Miss X did not qualify for free school transport directly to the farm school. It said this was in line with its Policy as the farm school was not a Pupil Referral Unit.
60. I found the Council was not at fault for refusing Mrs C’s transport request directly to the farm school from September 2022 until she was removed from roll with School Y. This is because this provision was arranged by the School under its general management powers and not under an alternative provision duty.
61. However, from November 2022 when Miss X was no longer on roll with School Y, the Council arranged the farm school directly, which was therefore alternative provision. I therefore found it at fault for refusing Mrs C’s request for free school transport directly from their home to the farm school until she was on roll with her new school. This is because:
• Miss X’s home was further away than the maximum statutory walking from both School Y and the farm school;
• Miss X an eligible child as she was of compulsory school age, had special educational needs, and she was receiving education other than at school;
• the farm school was a ‘relevant educational establishment, as this was the place Miss X was receiving her education under the Council’s Alternative Provision duty. It did therefore not matter it was not one of the listed qualifying school’s such as a Pupil Referral Unit;
• the Council’s Policy incorrectly does not include reference to the relevant educational establishment, other than qualifying schools and circumstances where a child has been excluded; and
• although Mrs C transported Miss X to the farm school, she did not do so voluntarily and repeatedly told the Council about the challenges this caused her.
62. The Council’s fuel allowance may have covered some of the costs Mrs C had to transport Miss X to the farm school. However, I found Mrs C experienced distress, health issues and difficulties to manage other commitments in transporting Miss X which would not have happened but for the Council’s fault.

Complaints handling

63. The Council accepted it had failed to respond to Mrs C’s school transport complaint as it had mistakenly believed this complaint related to her EHC plan process complaint, which it had responded to.
64. I am satisfied its apology was sufficient to remedy the injustice this caused Mrs C.
65. However, once the Council had provided its initial response to her transport complaint, she continued to raise her concerns and also appealed its decision. I found the Council should have responded to her complaint under its stage two process at that time. It was at fault for not doing so, which caused further delay.
66. I found this caused Mrs C some additional distress and delay in bringing her concerns to our attention.

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Agreed action

67. To remedy the injustice the Council caused to Mrs C and Miss X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs C, and pay her £350 to acknowledge the distress and uncertainty the Council’s faults caused her and Miss X;
2. pay Mrs C £1,200, to use as she sees fit for the benefit of Miss X, to acknowledge the loss of education Miss X had as result of the Council’s failure to provide her with full-time alternative provision between September to December 2022;
3. pay Mrs C a further £150 for the unnecessary time and trouble she had to get the Council to respond to her complaint.

In total the Council should pay Mrs C £1,700.

68. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. remind its SEND Team staff to complete the Education, Health and Care Plan process within statutory timescales;
5. complete a review of its School Transport Policy to ensure it includes free school transport entitlement to children, or young people, of compulsory school age who receive education other than at school at a relevant educational establishment in line with the Education Act 1996; and
6. remind its School Transport team to log and share complaints with the Council’s Customer Experience Team without delay to ensure it can respond to complaints within the timescales set out in the Council’s Complaints Policy.
69. The Council should provide us with evidence it has complied with the above actions.

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Final decision

70. There was fault which caused Mrs C and Miss X an injustice, it is on this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman