Summary: Mrs X complained about the way the Council handled her child’s special educational needs and disability, and her complaint. She said there was an impact on her child of missed education, and it caused her unnecessary and avoidable distress and frustration. We find the Council at fault, and this caused injustice. The Council has agreed to apologise and keep its previous offer of a payment open to Mrs X.

The complaint

1. Mrs X complained about the way the Council handled her child’s special educational needs and disability. Specifically, she complained the Council:

1. failed to provide her child with an education when they were out of school;
2. delayed assessing her child’s education, health and care needs, and delayed issuing an education, health and care plan;
3. failed to name the correct provision for her child in their education, health and care plan;
4. refused her application for school transport for her child; and,
5. delayed handling her complaint.

2. Mrs X said there was an impact on her child of the missed education. She said it caused her unnecessary and avoidable distress and frustration.

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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. 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. We cannot investigate a complaint if someone can appeal or has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
9. 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 have and have not investigated

10. As I have said above, we cannot consider complaints when someone takes more than 12 months to complain to us unless we decide there are good reasons.
11. In this case, Mrs X complained to us in late April 2024 about matters going back to 2020. I have considered Mrs X’s reasons for not complaining to us earlier. On the whole, I do not find there are good reasons to exercise discretion to investigate all of her complaints. So, for the most part, I have investigated Mrs X’s complaint from April 2023 (which is 12 months before she brought her complaint to us) to April 2024 (when she complained to us).
12. Regarding part c of the complaint, Mrs X complained the Council failed to name the correct provision for her child in their education, health and care (EHC) plan.
13. There is a right of appeal to the SEND Tribunal against a council’s description of a child or young person’s special educational needs, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC plan.
14. Mrs X had the right to appeal the provision named in her child’s EHC plan. For this reason, we cannot investigate part c of the complaint.
15. Regarding part d of the complaint, Mrs X complained the Council refused her application for school transport for her child.
16. Mrs X applied for school transport in January 2023. This is outside the scope of my investigation. However, she complained the Council failed to respond to this request. I consider it reasonable for Mrs X to have waited three months (from January to April 2023) for the Council to respond before she considered complaining about it.
17. For this reason, I consider there are good reasons to exercise our discretion and investigate part d of the complaint from January 2023 onwards.
18. Mrs X has added that she twice self-referred to the Council in 2023 for advice and support on the obstacles her child faced in accessing education. She complained the Council closed both of these referrals without doing any wellbeing checks, and she did not get any advice.
19. The Council’s responses to both of these self-referrals were within the time of Mrs X’s appeal to the SEND Tribunal. Mrs X’s tribunal appeal was about the obstacles her child was facing in accessing education and their mental wellbeing.
20. As I have said above, we cannot investigate a complaint if someone has appealed to a tribunal about the same matter. As these matters were raised in, and addressed by, the SEND tribunal we cannot investigate this part of Mrs X’s complaint.

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How I considered this complaint

21. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
22. I considered the relevant legislation, statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Alternative educational provision

23. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
24. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Education, health and care plans

25. A child or young person with special educational needs may have an education, health and care (EHC) plan. This document sets out the child’s needs and what arrangements should be made to meet them.
26. Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment. There is a right of appeal to the Tribunal against a council’s decision not to carry out an EHC needs assessment.
27. The Special Educational Needs and Disability (SEND) Regulations say that when a Tribunal orders a council to conduct an EHC needs assessment and the council then decides the child needs an EHC plan, the council must issue the plan within 14 weeks of the Tribunal’s order.

School transport

28. 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’.

What happened

29. In January 2023, Mrs X applied for school transport for her child, B.
30. In February, Mrs X asked the Council for an education, health and care (EHC) needs assessment for B.
31. In March, the Council said it would not complete an EHC needs assessment. Mrs X appealed this decision.
32. In September, the SEND Tribunal ordered the Council to complete an EHC needs assessment. The Council did the assessment and decided to issue B with an EHC plan.
33. In January 2024, the Council issued B’s EHC plan.
34. Later that month, Mrs X complained. The Council said it would reply to Mrs X by late February.
35. In March, the Council told Mrs X how she could claim £100 offered by the Council’s complaints department. Mrs X asked what this payment was for. She asked the Council to respond to her complaint.
36. In April, the Council sent Mrs X its stage one complaint response. It apologised for not sending the response in February.
37. The Council said the school transport application had been refused because there was no evidence of B’s limited mobility. It said B could take a bus, which was free because B lived in London, and it would take 15 minutes to get to and from school. It said its policy was that where a child could travel for free, it expected the child to use that option.
38. The Council offered £100 for the errors it identified and for Mrs X’s time and trouble.
39. The Council’s stage two complaint response said it was an admin oversight not sending its stage one response.
40. The Council said the school met with Mrs X in March 2023 and agreed a part time timetable for B. It said the school had been sending work home for B. For this reason, the Council said there was no reason it should have been providing alternative educational provision.
41. The Council said it should have done further enquiries to better inform its decision not to provide B school transport, given their mobility issues.
42. The Council offered Mrs X £1650 to reflect the impact on B accessing educational provision that was already in place, for distress, and for Mrs X’s time and trouble. Mrs X has not accepted this offer.

Analysis

Alternative educational provision

43. Mrs X complained the Council failed to provide her child with an education when they were out of school (part a of the complaint). I have broken this down into three periods, set out below.
44. April to July 2023
45. Between April 2023 (the start of the scope of my investigation) and July 2023, B was enrolled at school. Mrs X said during this time, the school sent work home for B. She said B struggled to complete the work because of health issues. Mrs X said the teacher told her that B should do what work they could. Mrs X said B did this.
46. I have seen the minutes of the meeting between the school and Mrs X in March 2023. The minutes show that Mrs X agreed to a part time timetable with adaptations and flexibility to reflect B’s needs. The minutes show the agreement was that B would complete some learning at home, and the school would review the plan fortnightly.
47. The Council said it was satisfied that the education provided for B by their school was available and accessible to B. It said there was no evidence B could not attend school. It said it therefore did not have a duty to provide alternative education for B.
48. I find no fault in how the Council decided the education provided by the school was available and accessible to B. I find the Council’s duties to provide alternative educational provision were not triggered. For this reason, I do not find the Council at fault.
49. September 2023 to February 2024
50. During this period, Mrs X took B out of school and home-educated them.
51. For this reason, there was no duty for the Council to provide alternative educational provision during this time. I do not find fault.
52. January to April 2024
53. The Council issued B’s education, health and care (EHC) plan in January 2024. Mrs X home-educated B until February 2024. The Council provided alternative education for B between February and April (the end of the scope of my investigation).
54. I find the Council provided alternative education for B during this period, so I do not find the Council at fault.

Assessing need and issuing an education, health and care plan

55. Mrs X complained the Council delayed assessing her child’s education, health and care (EHC) needs, and delayed issuing an EHC plan (part b of the complaint).
56. The Council initially decided it would not complete an EHC needs assessment for B. Mrs X appealed this decision. The SEND Tribunal ordered the Council to complete an EHC needs assessment. When the Council did the EHC needs assessment, it decided to issue B an EHC plan.
57. As I have said above, when the Tribunal orders a council to conduct an EHC needs assessment and the council then decides the child needs an EHC plan, the council must issue the plan within 14 weeks of the Tribunal’s order.
58. In this case, the Council issued B’s EHC plan two days after the 14-week deadline. I do not consider this delay is significant enough to constitute fault.

School transport application

59. Mrs X complained the Council refused her application for school transport for her child (part d of the complaint). She also complained the Council did not respond to her application.
60. Mrs X applied for school transport in January 2023. The Council told Mrs X in its stage one complaint response in April 2024 that it had refused the application.
61. The Council accepts there is no evidence it sent Mrs X its decision letter. This is fault. I consider this fault caused Mrs X injustice because it caused uncertainty.
62. Regarding the Council’s decision on the application, it accepted it should have made further enquiries to better inform its decision, given B’s mobility issues. I find this is fault. However, I cannot say what the Council’s decision would have been, had it made those further enquiries.
63. I find this fault caused Mrs X injustice because it caused uncertainty.
64. The Council recognised the faults here caused B injustice because of the impact on B accessing educational provision that was already in place. It also recognised the faults caused Mrs X distress. This is injustice.
65. I find the Council has offered a suitable and appropriate financial remedy for the injustice caused here. For this reason, I will not propose a further financial remedy. It is Mrs X’s decision whether or not to accept this offer.

Complaint handling

66. Mrs X complained the Council delayed handling her complaint (part d of the complaint).
67. The Council accepted it failed to send its stage one complaint response. It said this was due to an oversight.
68. I find the Council at fault for failing to send this complaint response. The Council has apologised and offered Mrs X a suitable and appropriate financial remedy for the injustice caused. For this reason, I will not propose a further financial remedy. It is Mrs X’s decision whether or not to accept this offer.

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Action

69. Within four weeks of this decision, the Council has agreed to apologise to Mrs X in writing for the uncertainty caused by:
• failing to send its decision letter regarding her school transport application; and,
• failing to make further enquiries to better inform its decision on the application.
70. The Council has also agreed to keep its offer of £1650 open to Mrs X. I find this is appropriate and proportionate to the level of injustice caused. It is Mrs X’s choice whether to accept the offer or not.
71. The Council should provide us with evidence it has complied with the above actions.

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Decision

72. I find fault causing injustice. The Council has agreed to take action to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman