Summary: Miss X complained the Council delayed identifying a special school place for her child, Y, which led to them missing education. Miss X also complained the Council failed to provide Y with suitable school transport. We cannot investigate Miss X’s concerns about Y’s education because she had a right of appeal to the special educational needs and disabilities (SEND) tribunal about Y’s school placement. We have ended this investigation about Y’s school transport. The Council has put in place service improvements, the injustice is not significant enough to justify our involvement and there is nothing worthwhile we can achieve by pursuing this matter further.

The complaint

1. Miss X complained:
• Y was out of school for a long time, preventing them receiving an education during which time the Council failed to arrange a suitable education for them;
• the Council delayed finding a specialist school place for Y;
• the Council delayed providing Y with suitable school transport;
• the Council communicated poorly with her; and
• Y did not receive free school meals.
2. As a result of the delay Miss X said Y missed education to which they were entitled. Miss X said it caused her distress, avoidable time and trouble and a financial burden.

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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. 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)
4. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement, further investigation would not lead to a different outcome, or there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. 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)
7. 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 have and have not investigated

8. As explained in paragraph 6 above we cannot investigate late complaints unless we decide there are good reasons.
9. Miss X complained about events starting in June 2022. The complaint is late and there are no good reasons to exercise discretion to investigate events back to June 2022 because Miss X could have reasonably complained to us sooner.
10. I have investigated between late January 2023 and mid-February 2024 when the Council issued its stage 2 response.

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How I considered this complaint

11. I considered:
• the information Miss X provided;
• the information the Council provided and its response to my enquiry letter;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
12. Miss X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

EHC Plans

13. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document sets out the child or young person’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section I is the name and/or type of school the child or young person will attend.
14. When a child has an EHC Plan, their local council is responsible for finding them an appropriate school place. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.

Appeal rights to the SEND tribunal

15. 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.
16. The law says we cannot investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. This also applies to someone who has not used the right of appeal but reasonably could have done so. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
17. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
18. The courts have established that if someone has appealed to the SEND tribunal or reasonably could have done so, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
19. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. If the parent or young person does not appeal but should have, then the period we cannot investigate ends when the Council makes another appealable decision.

Electively Home Educated

20. Electively home educated means parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups.

Free school meals

21. Free school meals eligibility is set out in s.512 Education Act 1996. Section 512ZA entitled the council to charge for the provision of school meals provided under s.512(1) or (3), subject to conditions set out in 512ZA (1A-3). Section 512ZB sets out eligibility criteria.
22. Section 512(3) engages obligations of the Council only where a pupil is registered at a maintained school or in receipt of relevant funded early years education.

School transport

23. Local authorities must make travel arrangements, free of charge, to facilitate the attendance at school of eligible children resident in their area. (Section 508B, Education Act 1996).
24. It is for local authorities to decide how they will arrange free travel for an eligible child. Councils must ensure the travel arrangements they make take account of the needs of the child concerned. The arrangements should enable the child to travel in reasonable safety and comfort, and without undue stress, strain, or difficulty. Councils should make decisions on a case-by-case basis.

What happened

25. Y lives with their family and has significant, complex special educational needs and autism. In June 2022 the Council issued Y’s first Education, Health and Care (EHC) Plan, which named a mainstream primary school, School 1.
26. In September 2022 Y’s mother, Miss X, asked the Council for a specialist school place for Y. The Council held an early annual review in November 2022 to consider Miss X’s request and a Council panel held in December 2022 discussed Y’s placement. Following the Council panel the Council sent Miss X a decision letter in late January 2023 with a decision to maintain Y’s EHC Plan, which said Y should remain in a mainstream primary school. The Council decision letter also set out Miss X’s appeal rights to the special educational needs and disabilities (SEND) tribunal and gave her two months to register her appeal.
27. In late January 2023 Miss X took Y out of School 1 because she had safety concerns around the school. From the start of February 2023 Miss X began electively home educating Y. A week later Miss X told the Council she wanted Y to attend a special school.
28. In Spring 2023 Miss X told the Council Y’s needs had changed and in late June 2023 a panel agreed to consult specialist schools to see if any could offer Y a school place.
29. In late August 2023 Miss X complained to the Council and said it had failed to arrange a suitable education for Y and had delayed finding a specialist school place for them.
30. In September 2023 Miss X contacted the Council several times and complained she could not speak to Council officers on the telephone about her queries with the Council involvement with Y’s education.
31. In early October 2023 the Council issued an amended EHC Plan for Y. It named elective home education in section I.
32. The Council identified a specialist school for Y to attend so in mid-October 2023 it issued a further final amended EHC Plan. Section I named a special school, School 2.
33. In late October 2023 Miss X complained to the Council she had not received any free school meal payments for Y while they had not been in school. The Council told her to contact the free school meals department and provided the relevant email address.
34. The Council arranged school transport for Y to start attending School 2 in mid-November 2023. Y was to catch a bus for children with special needs. However, Miss X and School 2 agreed for Y to start attending School 2 in late November 2023.
35. On Y’s first day at School 2, Miss X made a complaint to the Council. She said she had concerns:
• Y was not dropped off by the bus at the time or using the route the Council said it would and that Y had been dropped off last despite the Council confirming that would not happen;
• about how the bus driver communicated with her when dropping Y off;
• she had received a call from a Council officer about the school transport but the officer had an inappropriate caller identification name; and
• with how a Council manager spoke to her and her partner, Mr Z, on a telephone call.
36. Miss X said Y would not return to School 2 until a different school transport solution was put in place.
37. Doorbell footage of the school bus dropping Y off on their first day at School 2 showed Miss X and Mr Z were frustrated but Y did not seem distressed.
38. In early December 2023 the Council sent Miss X an early resolution response to her complaint and said:
• there was a change in route following Miss X moving home, which had affected how the bus dropped Y off. It apologised for unclear communication about the changes;
• although there was doorbell footage of Y being dropped off which showed an exchange between the bus driver, Miss X and Mr Z, the conversation was unclear;
• it could not find any evidence of the unprofessional user identification name used in the telephone call to Miss X; and
• it investigated the telephone call between the Council manager, Miss X and Mr Z. The manager ended the call because of Mr Z’s challenging behaviour.
39. In mid-December 2023 Miss X was unhappy with the Council early resolution response and escalated her complaint to stage 1. Miss X provided evidence of an email from the Council sent in early November 2023. The email said Y would not be the first pick up or last drop off and provided evidence of the staff caller identification name.
40. In mid-December 2023 the Council wrote to Miss X about a communication procedure with the Council special education needs (SEN) and inclusion teams. The Council apologised Miss X did not feel listened to by the Council. It said so all future communication between Miss X and the Council’s SEN and Inclusion teams was acknowledged and responded to, it requested Miss X sent all communication to a specific email address which a senior staff member would review, check and respond to.
41. The next day the Council emailed Miss X about a second school transport arrangement for Y to start in January 2024. It said Y would go to School 2 with another child in a taxi with a passenger assistant who could provide a 10-minute alert before Y arrived home. It provided a new estimated drop off time to Miss X.
42. In early January 2024 Miss X emailed the Council she said she was unhappy with the second school transport proposal because it had not been arranged in time for the start of the school term and felt it did not meet Y’s needs.
43. In mid-January 2024 the Council issued Miss X its stage 1 response and said:
• it would have expected all efforts to have been made to ensure Y was not dropped off last and accepted there was poor communication by staff about the changes to the travel arrangements;
• all relevant staff had been reminded of the importance of good communication;
• in the short term, although the vehicle pick up and drop off times would be an estimate a message would be sent to Miss X by the passenger assistant if the vehicle drop off or pick up time would be different. The text would be sent from a mobile phone issued by the Council;
• it accepted the caller identification name was unprofessional. It had reminded staff not to use personal mobile phones when speaking to parents and to use Council provided mobile phones; and
• it had spoken to two managers about the telephone call Miss X and Mr Z had with the Council manager and reviewed a voicemail left by Mr Z. It explained Mr Z had used language and tone that was unacceptable and said future communications from them, including in writing, must improve.
44. Miss X remained unhappy with the Council outcome and escalated her complaint to stage 2.
45. The Council suggested a third transport arrangement to Miss X and in late January 2024, Y began attending School 2 using that arrangement. Miss X was happy with this transport solution.
46. In mid-February 2024 the Council issued Miss X’s stage 2 response. It said school transport was in place for Y who was attending School 2. It had put in place a new communication plan with the SEN Team. It felt the plan was acceptable and would be reviewed if needed.
47. Miss X remained unhappy and complained to us.

My findings

Y’s education and free school meals

48. Only the Council or the SEND tribunal can say whether a school is suitable. The Council made a decision to maintain Y’s EHC Plan in late January 2023. It gave Miss X her appeal rights to the SEND tribunal. Miss X was unhappy with the mainstream primary school named in Y’s EHC Plan and with electively home educating Y. Miss X made it clear to the Council in early February 2023 she wanted a specialist school placement for Y. This was within the two-month period Miss X had to appeal, but she did not. It would have been reasonable for Miss X to have used her appeal right to change the placement named in Y’s EHC Plan.
49. As explained in paragraphs 15-19 above, because Miss X’s complaints about the time it took the Council to agree a specialist school and about a lack of education in the meantime were linked to, or was a consequence of, Miss X’s disagreement about Y’s educational placement in their final amended EHC Plan, I cannot investigate them. I also cannot investigate Miss X’s complaint that the Council did not deliver free school meals for Y while they were out of education for the same reason. This restriction starts from the decision letter date of late January 2023 and ends when the Council issued Y’s final amended EHC Plan in October 2023.
50. Y did not attend School 2 until late November 2023. The Council tried to arrange Y’s start date sooner, but Miss X agreed with School 2 Y’s start date of late November 2023. This period was not long enough to amount to fault.

School Transport

51. Miss X had concerns about how Y was dropped at home by school transport on their first day at School 2. She also had concerns about her interaction with the bus driver and the phone call with a Council manager. The Council investigated Miss X’s concerns and identified ways it could improve its practice, as set out in paragraph 43 above.
52. In addition, I have reviewed the doorbell footage of Y being dropped off at home after their first day at School 2 and although Miss X and Mr Z were frustrated, Y was not distressed. There is a period of adjustment when a child uses school transport for the first time and the Council was unable to review the first transport solution because Miss X decided not to continue to use the school transport following the incident in late November 2023. There is insufficient injustice to investigate this matter further and the Council has already investigated and taken appropriate action. Further investigation would not achieve anything further. For that reason, I have ended my investigation about the incident.
53. By mid-December 2023 the Council considered new travel arrangements for Y for the new year which Miss X was not happy with. The Council then amended the arrangements again for a third time in late January 2024. Miss X was happy with these arrangements. The Council acted appropriately to amend Y’s travel arrangements so was not at fault.

Communication

54. The Council did not always respond to all emails including Miss X’s complaint made in late August 2023 or answer all of Miss X’s telephone calls about Y’s education. This was fault and caused Miss X frustration. However, in mid-December 2023 the Council apologised Miss X did not always feel listened to and put in place a new communication procedure. It has confirmed it will review the plan if needed. The apology and new procedure was appropriate action by the Council and no further recommendation was needed.

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Final decision

55. I have ended my investigation in relation to the education element of this complaint because we cannot investigate it. Miss X had an appeal right to the SEND tribunal. I have ended my investigation for school transport matters because there was nothing worthwhile I could achieve by investigating further and any fault did not cause significant injustice. The Council has already remedied the injustice caused to Miss X in relation to communication.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman