Summary: Mr X complained the Council failed to act in his child’s best interests when choosing a suitable secondary school, arranging alternative education, and arranging school transport. There was no fault in the Council’s decision-making on these issues. We did not investigate the Council’s earlier decision to name a mainstream school in Mr X’s child’s Education, Health and Care Plan, as this came with appeal rights. The Council was at fault for refusing to reimburse fees Mr X paid to an independent school to secure his child’s place. The Council agreed to reimburse the fees.

The complaint

1. Mr X complained the Council did not act in the best interests of his child, who I shall call Y.
2. Mr X said the Council named an unsuitable school in Y’s Education, Health and Care Plan. He said its decision came after a case review that did not include all relevant information and ignored new evidence from a paediatrician.
3. Mr X also said the Council’s decision-making panel did not have up to date information about school spaces and provision. This caused delays and meant Y was out of school longer. Mr X said the alternative education the Council put in place in the meantime did not meet Y’s needs.
4. Mr X complained he had to pay a deposit and administration fee to the school Y now attends, as he could not wait any longer for the Council to approve the placement.
5. Mr X also said the Council delayed putting transport in place, so he had to incur significant costs taking Y to school for two weeks.

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. 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

9. I did not investigate the Council’s initial decision to name a mainstream school in Y’s Education, Health and Care plan, as Mr X had a right of appeal about this.
10. I investigated the period Y was out of school, including the alternative provision the Council put in place, and whether there were avoidable delays finding a new school placement.

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How I considered this complaint

11. As part of the investigation, I considered the complaint and the information Mr X provided.
12. I made written enquiries of the Council and considered its response along with relevant law and guidance.
13. Mr X 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

Education, Health and Care plans

14. 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. The EHC Plan is set out in sections. 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. 
15. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).
16. 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). 

Alternative provision

17. 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
18. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
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’)

School transport

22. 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’. 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.
23. ‘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)

The Council’s travel assistance policy for children with an EHC Plan

24. Eligible children only qualify for free transport to the nearest suitable school. This is the school named in the child’s EHC Plan. Assistance will only be provided when the child is attending their nearest suitable school agreed by the Council.
25. The Council processes applications in three stages.
26. At stage one, the Council decides whether the child is eligible. It aims to do this within 10 working days.
27. At stage two, the Council assesses the child’s transport needs and any medical issues. The time this takes can vary depending on the child’s needs.
28. At stage three, the Council decides which mode of transport is most appropriate and will set this up. This can take around 15 working days.

What happened

29. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.

Alternative education

30. Y finished primary school in July 2023 and was allocated a mainstream secondary school. However, after consultation, the mainstream school could not meet Y’s needs.
31. Decisions on issuing EHC Plans and naming schools within EHC Plans are made by a panel of professionals from the Council’s children’s services and the National Health Service. I have referred to this decision-making panel as ‘the Panel’.
32. The Panel agreed Y needed a special school on 27 July 2023. Y’s parents told the Council their preferred special school (which I will refer to as Special School One) who could offer Y a place, with taster days starting from 26 September 2023.
33. The Council noted Y would not have a school placement for the start of September. It therefore referred Y for alternative education on 10 August 2023.
34. The Council telephoned Y’s mother on 30 August to discuss three in-person tutoring sessions per week, plus the option of online sessions in the afternoon two days per week. Y’s alternative provision started on 14 September.
35. The Council held a review meeting with Y’s parents on 26 September. It recorded, generally, the tutoring sessions were going well. The teacher achieved a good balance which seemed to be working, though Y had not done any online work yet. They agreed to keep the tutoring sessions as they were, pending the outcome of Y’s taster days at Special School One.
36. The Council held a second review meeting with Y’s parents on 21 November. Y’s mother was happy with how things were progressing and felt the teacher had a good way with Y. Y was reportedly starting to believe in themself a little more. Y’s mother did not feel the sessions needed to be increased or decreased and was happy to continue current arrangements. She said they had found Y a school place but there was a delay agreeing a start date.

Panel decisions

37. The Council asked the Panel to change the placement in Y’s EHC Plan from mainstream to a special school. This was based on consultation responses and more information from an Occupational Therapist (OT) assessment. This information was not available at the time of the original Panel decision. The Council told the Panel Y’s parents preferred choice was Special School One.
38. The Council gave the Panel Y’s paediatrician’s report, received 9 June 2023, which said Y needed an adapted curriculum, small provision setting, and adaptive timetable. It also gave the Panel Y’s OT report, received 16 July 2023, which diagnosed Development Coordination Disorder (DCD).
39. The Council confirmed all schools it consulted said they could not meet Y’s need, except for Special School One, who could offer a place subject to successful taster days in September. The Panel agreed Y needed a special school and awaited the result of taster days at Special School One.
40. Unfortunately, the taster days were unsuccessful. The Council consulted several other schools, but they either could not meet Y’s needs or could not offer Y a place. Y’s parents found an independent school, which I will call Special School Two, who could offer Y a place.
41. The Council therefore asked the Panel to consider naming Special School Two as Y’s placement on 7 December 2023.
42. The Panel decided to defer its decision. It asked the Council to clarify the situation on placements with three of the schools it consulted, including Special School One.
43. The updated response from one school was that it was full and oversubscribed until September 2024. It specialises in autism, which Y does not have. It does not have assistive technology and is not specialist in dyslexia or specific learning disabilities. It could not provide the added support included in Y’s EHC Plan.
44. Another school said it could meet some of Y’s needs but was full. And it could not meet Y’s needs without detrimentally affecting others.
45. Special School One said, following the taster day it would not offer Y a place and did not think it could meet Y’s needs.
46. The Council again asked the Panel to consider naming Special School Two as Y’s placement on 26 January 2024.
47. The Panel provisionally agreed to name Special School Two until the end of the academic year, when it would review the placement. This was due to the travel distance. The Panel noted a previous objection from Y’s parents about Y travelling more than 20 minutes and the potential impact this could have.

School transport and fees

48. Mr X applied for school transport for Y on 15 November 2023. They asked for transport to start on 27 November 2023.
49. The Council told Mr X, as it had not yet named the school in Y’s EHC plan, it could not process the transport application. It said this was a requirement in its policy. It asked Mr X to reapply once it named Special School Two.
50. Mr X contacted the Council again on 22 January 2024. He understood the Council had now named Special School Two and asked it to process the transport application. The Council confirmed it would.
51. Mr X said it was an urgent request, as Y had been out of school since summer 2023, and he wanted Y to start at Special School Two on 29 January.
52. The Council emailed Mr X on 26 January, confirming it passed Y’s transport authorisation and risk assessments to its transport hub to set up transport, which took roughly 15 working days. The Council also told Mr X he would need to make alternative arrangements until it set Y’s transport up.
53. Y started attending Special School Two on 29 January 2024, with Mr X transporting them.
54. The Council then emailed Mr X on 7 February confirming travel arrangements for Y, starting on 19 February.
55. Mr X asked the Council to refund his travel expenses incurred so far. He also asked the Council to refund a deposit and registration fee he paid to Special School Two in January.
56. The Council refused. It said it told Mr X he would need to arrange transport if Y started at Special School Two before the Council put transport in place. The Council also said it contacted Special School Two, and they confirmed councils do not pay the deposit and registration fees. This is the same for all councils and students. They also confirmed the deposit is refundable at the end of Y’s placement.

Complaint to the Council

57. Mr X complained in December 2023, following the Panel’s decision to defer naming a school in Y’s EHC Plan until it received further information. Mr X said there had been a very poor attempt by the Council to gain the evidence requested by the Panel.
58. The Council responded in January 2024. It appreciated deferred decisions are frustrating, but said as well as parental preference, the Panel had to consider the efficient education of others, and efficient use of resources. It also had a duty to consider Y’s wellbeing where a significant journey is involved. It therefore wanted to ensure it considered all local suitable alternatives.
59. The Council said decisions on these requests are considered by a joint board of professionals from the Council’s children’s services and the National Health Service. It said the Council submitted all evidence, but board members can ask for more information to overcome barriers to local school attendance.
60. The Council apologised the process of securing a school place for Y took longer than expected.
61. Mr X was not satisfied, and continued his complaint. He said:
• Y was due to start year 7 in September 2023, but due to the Council’s negligence, this did not happen until February 2024.
• They had to contact independent schools because the Council could not find a school to meet Y’s needs.
• The Council issued Y’s EHC Plan without all relevant information and reports.
• There were many delays which extended the time Y was out of school.
• The Council wrongly told the Panel about the type of provision available, which delayed them making a decision.
• The Council refused to progress transport for Y until after it named a school.
• Y was out of school with only home tutoring three times a week, which Mr X felt was not satisfactory in meeting Y’s needs. Mr X therefore decided to drive Y to school for two weeks due to the Council cancelling their transport application. He asked the Council to refund these costs, but it refused.
• Mr X had to pay registration and deposit fees to Special School Two, which was unfair as the Council was not meeting its duty to find Y a school.
62. The Council sent its final complaint response in March 2024. It said, while one of the special schools consulted said it could not meet need, the Council disagreed. It considered the school could meet Y’s needs with SEND support and funding. The SEND regulations and code of practice expects councils to work with schools in this way to make adjustments and overcome barriers.
63. The Panel’s decision to defer naming a school was not due to the Council presenting wrong information. The Panel wanted further discussion with schools. It said this was in line with SEND regulations, as it must ensure a school is in the best interests of the child and an efficient use of resources.
64. The Council said it could not arrange transport until after naming a school in the EHC Plan, as per section 14 of the Children and Families Act 2014.
65. The Council recognised Mr X incurred expenses transporting Y to school himself at first. However, it said it made clear that if Mr X wanted Y to start at the school before the Council arranged transport, then he must do so independently. It also said councils do not pay the registration and deposit fees to the school; this is the standard process for all families.

My investigation

66. The Council told me it initially named ‘mainstream’ as the school type in Y’s EHC Plan based on the evidence at the time. New evidence from a paediatrician was not ignored. Y’s parents had a right of appeal, but did not exercise it over the type of school named.
67. The Council said Y’s alternative provision consisted of five hours one-to-one, face to face, teaching at home. This started on 14 September 2023, after a short delay due to teacher illness. From 14 September 2023 to 24 January 2024, Y had 60 one-to-one teaching sessions available, and attended 45 (75%). At both review meetings, Y’s parents expressed satisfaction with progress and did not want to increase Y’s hours of teaching.
68. The Council disagreed there was any delay putting transport in place. It cannot process an application until it names the school and it explained this to Y’s parents. It told them they would have to arrange transport if they wanted Y to start earlier, and the Council would not reimburse this.
69. The Council told me it determined Y was eligible for transport in two days. It then took a further two days to assess Y’s transport needs, and nine working days for the Council to set up transport.
70. The Council also confirmed to Y’s parents that school deposit and administration fees are not met by the Council. The fees Y’s parents paid to Special School Two are standard costs independent schools require parents to pay, and would have arisen regardless of when the Council named the school in Y’s EHC Plan.

Analysis

71. I did not investigate the Council’s decision to name a mainstream school in Y’s EHC Plan, as Mr X had a right of appeal about this. I therefore have not considered whether that decision was based on all relevant information and evidence.
72. Y was out of school from September 2023 until February 2024. However, I found the Council was prompt in putting alternative education in place which started on 14 September 2023. Mr X complained this was unsuitable. The statutory guidance is not prescriptive as to exactly what ‘suitable’ alternative education should look like, or for how many hours a week it should last. As Y received one-to-one tutoring, this did not need to be full-time. On the evidence seen, Y’s parents were satisfied with the alternative provision, and told the Council it was working well at both reviews. They also declined the chance to increase Y’s weekly hours of tutoring. I did not find the Council at fault in terms of the alternative provision it arranged.
73. I can appreciate Mr X’s frustration about the Panel’s decision in December 2023, where it asked for more consultation with potential schools. This delayed the decision to name Special School Two, and delayed Y’s start date.
74. However, I found the Council was clear in the information it gave the Panel before the meeting in December, about the schools it consulted, and about Y’s unsuccessful taster day at Special School One. There was no fault by the Council in its administration process. It presented all relevant and up to date information to the Panel. It was then up to the Panel to decide, and the Ombudsman cannot question the merits of the Panel’s decision to request further consultation.
75. Mr X also complained the Council delayed putting school transport in place. The Council could not consider Mr X’s transport application until the Panel agreed to name Special School Two in Y’s EHC Plan. This is in line with the Council’s policy. There could be no guarantees about the placement until the Panel made its decision.
76. The Council’s transport policy sets out the three stages of its decision process, which can take more than 25 working days. It took the Council 12 working days to agree school transport for Y. I have not seen evidence of delays, or of any fault, in the Council’s decision-making process. It followed its school transport policy and reached a decision within the anticipated timeframe.
77. The Council declined to reimburse Mr X’s expenses taking Y to school before transport was in place. I can fully appreciate Mr X’s desire for Y not to spend any more time out of school. However, on the evidence seen, the Council told Mr X he would be responsible for travel costs if Y started Special School Two before Council funded transport was in place. On that basis, and because I did not find the Council at fault for any delays in its transport decision-making process, I do not criticise the Council’s stance.
78. The Council also declined to reimburse the fees Mr X paid to Special School Two to start Y’s placement. I have considered what the SEN Code of Practice says about school fees. I found section 9.131 states: "If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees."
79. As the fees Mr X paid to Special School Two were compulsory and necessary to secure Y’s provision then the Council should pay them. This is in line with the Council’s duty to secure special educational provision under section 42 of the Children and Families Act 2014. I therefore agree with Mr X that the Council should reimburse the registration fee and deposit he paid.

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Agreed action

80. Within four weeks of my final decision, the Council will reimburse Mr X the £500 deposit and £150 registration fee he paid to Special School Two to secure Y’s place.

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Final decision

81. I completed my investigation. There was no fault with the Council’s decision-making in the main. However, there was fault in the Council’s refusal to reimburse fees Mr X paid to an independent school. We did not investigate the Council’s initial decision to name a mainstream school in Y’s Education, Health and Care Plan, as this came with appeal rights.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman