Summary: Ms X complained about the Council’s failure to pay for the transport costs when her daughter was receiving alternative education. We have found that our jurisdiction does not permit us to look into this complaint. We are therefore discontinuing our investigation.

The complaint

1. The complainant, Ms X, complained that the Council failed to provide free transport to her child, Y, between August 2023 to March 2024. This has meant that Ms X has had to pay for the transport to take Y to the alternative educational provision, and she has been caused avoidable distress, cost and time and trouble.

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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.
3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended).
4. We may decide to not to start or continue with an investigation.
5. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. We will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
7. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal… such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
8. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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How I considered this complaint

9. I made enquiries of the Council and have had email correspondence with Ms X. I had already indicated to her that the restrictions on our powers (as set out in paragraphs 4 to 7), may mean that we did not have the jurisdiction to investigate her complaint.
10. I issued a draft decision statement to the Council and to Ms X and I offered to speak to Ms X on the telephone to discuss our jurisdictional restrictions. I have taken into account the Council and Ms X’s further written comments when reaching a final decision.

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What I found

11. This is only a brief account of events.
12. The Council issued an amended final EHC Plan for Y in August 2023. At this stage, the Council agreed to provide alternative education. But it said that, as Y remained on the school roll (School B), it considered it was for the school to arrange the necessary transport to this. Ms X says that the Council failed to tell School B that it was responsible for the transport costs.
13. Ms X’s right to appeal to the SEND Tribunal was triggered when the Council issued the final amended EHC Plan in August 2023.
14. Ms X appealed to SEND Tribunal at the end of September 2023 in respect of the school placement. The issue of the alternative provision (while awaiting a suitable school for September 2024) formed part of the discussions of the SEND Tribunal.
15. Ms X says that the Tribunal made it clear that it could not consider the past transport costs which she incurred taking Y to the alternative provision. Ms X says that this entailed taking Y everywhere in her car and that she was substantially out of pocket. She also lost her employment.
16. Ms X considers it is unfair that the Council cannot be held responsible for the period of August 2023 to March 2024 and that she has no recourse to address the issue of previous transport costs.
17. In March 2024, the SEND Tribunal ordered a school placement for Y, starting in September 2024. It was agreed that the Council would provide the travel costs to the interim provision as from March 2024.

Findings

18. My initial view was that we could not look at issues regarding transport costs to the alternative provision while the SEND Tribunal appeal was ongoing because we cannot look at an issue considered by the appeal (ie the nature of Y’s needs and placement). It was also the case that the Council agreed to meet the travel costs during the Tribunal to the alternative provision starting in March 2024.
19. But the Council has remained unwilling to meet the travel costs to the interim provision between August 2023 to March 2024.
20. My view is that we cannot investigate Ms X’s complaint about the lack of transport costs between August 2023 and March 2024, as she has requested. Our jurisdiction prevents us investigating a matter which forms the main subject or substance of the appeal. The matter considered by the SEND Tribunal touched on the issue of the alternative provision and therefore was a part of the Tribunal hearing.
21. As highlighted, there will be cases where there are complaints of past injustice which neither we, nor the Tribunal, can remedy. Ms X’s complaint is an example of this.
22. I am therefore discontinuing the investigation.

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Final decision

23. I am discontinuing the investigation because we do not have the jurisdiction to look at Ms X’s complaint about transport costs between August 2023 and March 2024.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman