Summary: Miss X complained the Council failed to properly support her child, Y’s, special educational needs. There was fault in how the Council failed to keep Y’s alternative education under review and how it decided to withdraw school transport. As a result, Y missed out on education for over a term and this caused Miss X avoidable inconvenience and distress. The Council agreed to apologise, pay Miss X a financial remedy and issue reminders to its staff.

The complaint

1. Miss X complains about the support the Council has provided for her child, Y’s, special educational needs since 2020. She says the Council:
• did not provide the right support to prevent Y being excluded from their last school in 2023;
• has not arranged a suitable school place for Y;
• has allowed Y to remain on a part-time timetable for over a year; and
• withdrew school transport for Y.
2. As a result, Miss X says Y has missed out on education for many months, she has had to reduce her hours at work and has experienced financial hardship. She wants the Council to arrange a suitable school place for Y and make up for the education Y missed.

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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. 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)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. 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)
7. 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.
8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
10. 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

11. I have not investigated the Council’s actions before September 2023. Miss X knew about earlier issues at the time and therefore her complaint about these is late. We can only investigate late complaints if we decide there are good reasons. I do not consider there are any good reasons Miss X could not have complained about events before September 2023 within 12 months of knowing about them and there are no good reasons to investigate those events now.
12. I have also not investigated how the Council decided what school to name in Y’s Education Health and Care (EHC) Plan or searched for a suitable school. Miss X knew the Council had not named a school in Y’s EHC Plan and it told her of her right to appeal the content of that plan. Miss X had appealed other decisions to the Tribunal, and I consider it would have been reasonable for her to have used her appeal rights about the lack of a named school.
13. I have investigated how the Council oversaw the alternative education it arranged from September 2023, after Y was excluded from school, and how it decided to withdraw school transport in early 2024.

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How I considered this complaint

14. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
15. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
16. 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 found

Education health and care plans

17. 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. 
18. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

Alternative education provision

19. 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.
20. 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))
21. 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)
22. Any alternative education provision should be kept under regular review.
23. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
24. Government guidance about alternative provision (Arranging Alternative Provision) says that where a child receiving alternative provision is on a reduced timetable, the council arranging the placement should ensure there is a clearly defined plan for when the child will return to full-time education and that plan should be reviewed regularly.

School transport

25. 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. ‘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)

26. Government guidance on school transport (Travel to school for children of compulsory school age) says it will not normally be possible for councils to make separate arrangements for children who have start and finish times which are different to the normal school day. However, it also says there may be circumstances where councils might decide it is appropriate to arrange transport at different times. Councils should consider each case individually.

What happened

27. Miss X’s child, Y, has special educational needs. In mid-2023, Y was permanently excluded from their previous school. The Council arranged for Y to attend a Pupil Referral Unit (School A) from the start of the new school year in September 2023.
28. A few months later, after a decision from the Tribunal, the Council issued an Education Health and Care (EHC) Plan for Y. The Council did not name a school or type of school in that plan.
29. In early 2024, Y’s behaviour at School A got worse and the School decided it needed to place Y on a reduced timetable. It said it would review the timetable weekly and look to increase the number of hours Y attended based on their ability to effectively take part in lessons.
30. The Council initially challenged the School about using a part-time timetable and encouraged it to increase the hours as soon as possible.
31. However, around a month later the Council withdrew the transport it had arranged for Y. It said this was because Y’s reduced timetable started and ended outside normal school travel times, and it could not meet those times.
32. As a result, Y did not attend School A between the end of March and the end of September 2024.
33. Miss X complained to the Council in April 2024 about the reduced timetable and lack of school transport. In its final response to Miss X’s complaint in August 2024, the Council accepted it had not provided Y with the right support and that he had missed out on some education. It apologised and offered Miss X £900 to recognise the impact on her and Y.
34. Miss X complained to the Ombudsman in September 2024, as she was not happy with the Council’s final response.

My findings

35. I am satisfied the evidence shows there was fault in how the Council oversaw the alternative education it had arranged for Y and how it decided to withdraw school transport.
36. Since the Council arranged the alternative provision, after Y was excluded from their former school, it had a responsibility to keep this under review. While the decision to use a reduced timetable was for the school to make, the alternative provision guidance says the Council should also have kept this under close review. The Council did challenge the School initially about the reduced timetable, it did not pursue this further. That was fault.
37. The Council has not shown any evidence about how it decided it did not need to provide school transport for Y while he was on a reduced timescale. Councils should make school transport decisions individually and should consider whether it is necessary to make exceptions to its policy. There is no evidence the Council did this, and I consider that failure was fault.
38. In any case, the Council knew at the time that Y was not attending the alternative provision it had arranged for them. The Council should have kept that provision under review and, once it knew Y was no longer attending, should have decided:
• whether the provision was still suitable; and
• whether it needed to make different arrangements.
39. The Council failed to do this, which was fault.
40. If the Council had either decided to continue school transport, or properly reviewed Y’s alternative provision, I am satisfied Y would have continued to access some education. Therefore, because of the Council’s failures, I am satisfied Y missed out on education between the end of March and the end of September 2024; around one and a quarter terms.
41. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss.
42. The evidence is clear that Y struggled to take part in full-time education, both before and during his time at School A. Therefore, I am satisfied that even if he had been taking part in education during the period I have investigated, this would only have been part-time. Based on this, Y’s age, and his special educational needs as set out in his EHC Plan, I consider a remedy of £1,100 a term to be a suitable remedy.
43. I am also satisfied the fault above also caused Miss X avoidable inconvenience, frustration and distress. However, I cannot say that the Council’s failures led to the financial loss Miss X claimed. It is unlikely Y would have been able to take part in full-time education even if the Council had acted without fault.

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Action

44. Within one month of my final decision the Council will:
• apologise to Miss X for the education Y missed out on and the distress it caused to Miss X;
• pay Miss X £1,375 to recognise the education Y missed out on (this includes the £900 the Council has already paid, and is intended for Y’s future educational benefit); and
• pay Miss X £400 to recognise the distress to her.
45. Within three months of my final decision the Council will:
• remind relevant school transport staff that decisions about school transport should be made based on the facts of each case and that exceptions to the Council’s policy are considered where relevant; and
• remind relevant education staff that they should keep alternative education placements under review and ensure steps are taken when there is reason to believe the arrangements are no longer working or effective.
46. The Council should provide us with evidence it has complied with the above actions.
47. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

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Decision

48. I find fault causing injustice. I have recommended actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman