Summary: Mrs D complained on behalf of her daughter that, due to a lack of home to school transport, the Council failed to secure the special educational needs provision set out in her education, health and care plan. The Council has accepted fault. It has agreed to make payments to Miss B and Mrs D to remedy the injustice caused.

The complaint

1. Mrs D complained on behalf of her daughter Miss B that, due to a lack of home to school transport, the Council failed to secure the special educational needs provision set out in Miss B’s education, health and care (EHC) plan from September 2022 to January 2023. Mrs D says no other support was put in place, so her daughter missed out on education and important therapies which has had a detrimental impact on her mental health. Mrs D also complained about the attitude of a manager in meetings.

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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. 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)
3. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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)
5. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we decide:
• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. 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)
7. 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

8. This is a late complaint because it is about events which occurred more than 12 months before Mrs D brought the complaint to us in September 2024. However I have exercised discretion to investigate because the Council’s complaint response was issued in March 2024 and Mrs D continued to correspond with the Council about the issues over the summer of 2024.
9. I have not investigated the attitude of the manager in meetings. This is because the Council has investigated but found there were no recordings of the meetings. As there is no evidence, any further investigation would not lead to a different outcome. So as set out in paragraph 5, I have ended our investigation into this.

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How I considered this complaint

10. I spoke to Mrs D about her complaint and considered the information she and the Council sent.
11. Mrs D 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

Relevant law and guidance

Special educational needs

12. A young person aged 19 to 25 with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the young person's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
13. An EHC plan will automatically cease at the end of the academic year in which a young person turns 25 (or the day the course ends, or the day before their 26th birthday if later).
14. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Home to school transport

15. Councils 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. (Education Act 1996, 508B(1) and Schedule 35B)
16. Councils must arrange for the transport it considers necessary for an adult with an EHC plan to attend their education or training placement. Councils may also be able to assist with transport under the Care Act 2014 if the young adult has care needs.

What happened

17. I have set out the key events, this is not meant to describe everything that happened.
18. Miss B has a learning disability and special educational needs. She turned 25 years old in the academic year 2022-23. Miss B was attending a specialist independent college (“the College”). The College was named in Miss B’s EHC plan and is about a two-hour drive from her home. Mrs D was providing care and support to Miss B of 13 hours per week, funded by a direct payment. She was also driving Miss B to college five days a week with her mileage paid for by the Council.
19. In June 2022, Mrs D told the Council she would not transport Miss B from the start of the following academic year, due to the stress it was causing, problems with her health and the wear on the car. In late July, she said a family friend may be able to drive Miss B three times a week. Following a meeting with the Council and the College, on 1 August the Council said it would look into recruiting a passenger assistant and a taxi three days a week.
20. Miss B’s final EHC plan was issued on 4 August 2022. This again named the College and said adult social care would pay the family a personal travel budget of mileage to transport Miss B. Section F of the EHC plan said Miss B required:
• Speech and language therapy (SALT) comprising weekly 30-minute sessions with a qualified therapist and a programme developed by a SALT to provide daily support.
• Occupational therapy (OT) comprising a programme developed by an OT to provide daily support and termly indirect visits from the OT.
• Psychological therapy sessions of 90 minutes twice per week for three months followed by a review.
21. On 14 September, the Council agreed to fund a taxi three times a week but not a passenger assistant. Mrs D and Miss B highlighted their concerns that it was not safe for Miss B to travel without additional support. The Council requested a passenger assistant but Miss B then said she wanted Mrs D to carry out this role.
22. Discussions then followed about how many hours Mrs D would be permitted to act as a passenger assistant, given she was already providing paid support to Miss B. During this time Miss B was not attending the College.
23. On 16 December, the Council agreed to fund a taxi and Mrs D to act as a passenger assistant for 40 hours per week (which comprised two return journeys a day, five days a week). This would be put in place from January to July 2023, when Miss B’s EHC plan would cease. Miss B returned to the College on 9 January 2023.

Mrs D’s complaints

24. Mrs D complained to the Council in November 2023 that the Council had failed to put transport in place for the term from September 2022 to January 2023. As a result, Miss B had not had the SALT, OT and psychotherapy as set out in her EHC plan.
25. The Council issued its complaint investigation report on 13 March 2024. It upheld the complaint, apologised and offered Miss B £900 to remedy the loss of education for a term. It also offered to make payments to Miss B and Mrs D to remedy the distress they had been caused.
26. The Council says it commissioned psychotherapy from November 2022 to July 2023. Mrs D says Miss B was only able to attend one session.
27. Mrs D considered the proposed remedy was insufficient and wrote again to the Council on 2 April and 6 June 2024 about this and other matters. Mrs D then came to the Ombudsman.

My findings

28. The Council had previously decided that it was necessary to arrange transport so that Miss B could attend the College named in her EHC plan. This was initially a personal travel budget for Mrs D. When Mrs D then said she could not continue to drive Miss B, the Council had to find a new arrangement.
29. I have seen that there were ongoing discussions about the best arrangements and that some options suggested by the Council were declined by Miss B or Mrs D. Nonetheless, there was a failure put transport in place for the autumn term. This is fault.
30. As a result, Miss B missed out on education, which the Council acknowledged in its complaint response. But she also missed out on special educational needs support in the form of SALT, OT and psychotherapy. This is an injustice.
31. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
32. Our guidance on remedies says that where fault has resulted in a loss of educational provision, we will usually recommend a payment to acknowledge the impact of that loss. In addition, payments may also be required to remedy the loss of other provision such as OT and SALT. These payments should be used for the person’s educational benefit.
33. My view is that, for loss of education and SEND provision in the autumn term of 2022-23, a payment of £1,800 would be appropriate. This comprises £1,200 for the loss of education and £600 for the loss of SEND provision. In determining this figure I have taken into account that it was the final year of Miss B’s education, which is a significant stage, and that additional provision now could remedy some or all of the loss.
34. I also consider that Miss B and Mrs D were caused distress as Miss B was not able to attend college.

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Action

35. Within a month of my final decision, the Council has agreed to:
• Pay Miss B:
1. £1,800 to remedy the loss of education, SALT, OT and psychotherapy in the autumn term 2022-23.
2. £300 to remedy the distress she was caused.
• Pay Mrs D £500 to remedy the distress she was caused.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman