Summary: Ms X who is an advocate, complains on behalf of Mr and Mrs Z and their daughter. She said the council have failed to respond to their communication in a timely manner; offered to reimburse speech and language therapy but failed to make the payment; initially declined to continue to provide school transport and failed to respond to a request to escalate their complaint. We find the Council was at fault for lack of communication, failing to reimburse the payment and failing to respond to their request. This caused Mr and Mrs Z significant distress. The Council has agreed to several recommendations to address the injustice caused by fault.

The complaint

1. The complainant, Ms X who is an advocate, complains on behalf of Mr and Mrs Z and their daughter. She said the council have:
1. failed to respond to their communication in a timely manner;
2. delayed arranging speech and language therapy (SALT) and occupational therapy (OT);
3. offered to reimburse SALT but failed to make the payment;
4. initially declined to continue to provide school transport; and
5. failed to respond to a request to escalate their complaint.
2. Ms X said this has caused Mr and Mrs Z significant stress.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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).
6. 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.
7. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
8. 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.
9. 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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What I have and have not investigated

10. I have investigated points a, c, d and e of the complaint. I have only investigated point b after the EHC plan was finalised. This is because Mr and Mrs Z appealed the contents of the plan to the Tribunal in November 2021 which was concluded in January 2023. As stated in paragraph 7 the law prevents us from investigating these matters. I can only consider whether the Council was at fault for failing to provide what had been agreed in the final plan.

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How I considered this complaint

11. I spoke with Ms X about the complaint. I considered all the information provided by Ms X and the Council.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care plans

13. 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.
14. 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.

Transport

15. Councils 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. A child will not normally be eligible for free travel to school on the grounds of their special educational needs, disability, or mobility problem, or on the grounds that the route is unsafe, if they would be able to walk to school if they were accompanied.
17. Where the Council determines that a child would be able to walk if they were accompanied, the general expectation is that the parent will accompany them or make other suitable arrangements for their journey to and from school. (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, paragraphs 47 to 52)

Summary of the key events

18. Mr and Mrs Z’s daughter, Y, has an EHC plan. The plan was finalised in November 2021 and Mr and Mrs Z lodged an appeal to the Tribunal about the content of the plan.
19. In March 2022 the Council told Ms X it had agreed to commission SALT. It also said it would like to offer to reimburse Mr and Mrs Z for the money they had spent on private SALT. The Council said this would be backdated to September 2021.
20. The Council contacted the SALT therapist and confirmed it had agreed to take over the funding.
21. Ms X contacted the Council the following month. She asked what evidence the Council needed to reimburse Mr and Mrs Z.
22. In April 2022 the Council emailed the OT. It asked if they could make arrangements directly with the family to carry out an OT assessment.
23. Ms X asked the Council twice in June 2022 to contact Mr and Mrs Z about the reimbursement. This was because the payment had not yet been made.
24. Mr and Mrs Z asked the Council to consider backdating the SALT payment to 2020 when they first employed the therapist. But the Council said this was unlikely to happen as Y has had provision from the NHS throughout. It said Mr and Mrs Z made their own private arrangements separately. The Council said the agreement to back date some of the funding was in recognition of the delayed change to the SALT to be written into the plan.
25. In September 2022 the Council told Ms X, Y was not eligible for school transport. This was because it said a child over 8 is eligible for transport from the Council to the nearest school if the home to school distance is over 3 miles. But said Y’s home address was 1.6 miles from school (walking distance).
26. Ms X responded and asked the Council to reconsider its decision. She said:
• Y cannot walk far without tiring or refusing to walk;
• Y has poor balance as highlighted by the OT report; and
• the school had confirmed it would collect A and return her home while this was resolved.
27. Ms X told the Council the OT had slots available. She asked if the Council was in agreement with amendments in relation to the OT.
28. Ms X asked the Council for an update on its decision about the transport and the OT.
29. The appeal was settled by consent order on 22 November 2022. But the order was issued in January 2023.
30. In December 2022 the Council said it would ensure it had reimbursed the SALT by January 2023. It said its decision about the transport remained the same and said Y was not eligible on distance grounds, or on physical/SEN grounds. It said this decision could be reviewed if further evidence becomes available. It confirmed it had contacted the OT.
31. Ms X complained to the Council. In response the Council said:
• the reimbursement of the SALT would be done during January 2023;
• the OT referral was done and agreement to commission provision was confirmed in December 2022;
• its decision about the transport remained the same. Mr and Mrs Z had the right to request a review; and
• it did not agree to reimburse the costs they had spent on Ms X’s advocacy services. This is because it said there are free services available.
32. The EHC plan was finalised in January 2023. It said Y required 30-minute SALT sessions once a week and weekly OT sessions for 50 minutes, with 10 minutes for preparation.
33. In February 2023, the Council said following receipt of medical information, it had agreed to provide transport. The notes stated this new information supported Y being eligible for transport on the grounds of physical needs.
34. Ms X asked the Council to escalate the complaint. The Council acknowledged this request and said it would issue a response by April 2023. It said it would keep her informed if it could not meet this timescale.
35. Ms X chased the Council in May and June 2023 asking for an update on when the reimbursement of SALT would be made.

Analysis – was there fault by the Council causing injustice?

36. The Council initially made the offer to reimburse the SALT in March 2022. The Council said the non-payment was the result of an oversight. It said it would make the payment at the earliest opportunity. This is fault. There is evidence Ms X continued to contact the Council about this on behalf of Mr and Mrs Z. The Council confirmed in its complaints response it would make the payment by January 2023. But this was not actioned. This caused Mr and Mrs Z significant stress.
37. Mr and Mrs Z asked the Council to consider backdating the SALT payment further to when they first employed the therapist in late August 2020. The Council said this was unlikely to happen as Y had provision from the NHS throughout. It said Mr and Mrs Z made their own arrangements separately. This is a decision the Council is entitled to take. It is supported by an educational psychologist report from October 2020. The Council agreed to backdate some of the funding in recognition of the delayed change to the SALT to be written into the EHC plan after receiving the SALT report in March 2022.
38. The Council received Ms X’s request to escalate the complaint in March 2023. It agreed to provide a response the following month or update her on whether there would be a delay. But the Council failed to do so. The Council said the stage two review is close to completion. It has acknowledged the unacceptable delay. It said this was caused by a backlog which it said has now been managed. But this did cause further significant stress to Mr and Mrs Z.
39. The Council told Ms X in September 2022 Y was not eligible for transport. The Council said information it had at the time indicated Y was physically able to get to and from school, accompanied by an adult. That is a decision for the Council to take.
40. Ms X responded to the Council the same day as detailed in paragraph 26. She asked the Council to reconsider its decision and said if not they would appeal the decision. She chased the Council for a response. The Council responded in December 2022 confirming its decision remained the same. The delay in responding to Ms X’s request is fault.
41. Had this fault not occurred its likely Mr and Mrs Z would have appealed the decision sooner. But I cannot say how quickly the decision would have been overturned. This is because the information the Council relied on when deciding Y was eligible to transport was provided in February 2023. But this did cause uncertainty to Mr and Mrs Z. During this time Y’s school continued to provide transport. Mr Z took time off work in January 2023 to take her to school.
42. Mr and Mrs Z said they requested help from the Council’s SENDIAS service in 2019. They said they were told the service did not have capacity to support them at that time. As a result, they said they contacted Ms X for support. Mr and Mrs Z want the Council to reimburse the fees they have spent on the advocacy service.
43. I asked Ms X and the Council to provide evidence of when Mr and Mrs Z contacted SENDIAS. Both have provided an email in October 2019 where Mr Z asked for help and guidance through the Tribunal process. In response SENDIAS told him what he needed to do and further stated ‘please do not hesitate to come back to us for further information’. I have seen no written evidence to suggest Mr Z responded. I have also seen no written evidence to suggest SENDIAS said it could not support them. I therefore do not find fault with the Council. Mr and Mrs Z chose to contact an advocacy service. We would not expect the Council to reimburse this cost.
44. Mr and Mrs Z said the Council delayed arranging OT and SALT during the appeal process. As stated in paragraph 7 the law prevents us from investigating this. The appeal was settled by consent order on 22 November 2022. The final order closing the appeal was issued in January 2023. The EHC plan was finalised shortly after, and the provision was in place. This is the correct process. The Council has a duty to provide what is in the finalised plan.

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Agreed action

45. To address the injustice caused by fault, within one month of my final decision the Council has agreed to:
• write to Mr and Mrs Z with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• reimburse Mr and Mrs Z for the SALT payments as per the agreement made in March 2022; and
• pay Mr and Mrs Z £500 to acknowledge the distress caused to them due to the fault identified in this statement.
46. Within two months, the Council will:
• by training or other means, ensure the relevant officers are aware that all issues raised in a complaint are appropriately addressed; and
• remind relevant officers of the importance of providing clear communication and responding in a timely manner; and
• provide details of the steps the Council has already taken to reduce its stage two backlog.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman