Summary: Mrs F complained the Council delayed assessing her daughter’s education, health and care needs and failed to provide home to school transport. There was fault which caused injustice as Mrs F’s children missed out on education. The Council has agreed to make a payment to Mrs F to remedy this.

The complaint

1. Mrs F complained the Council delayed assessing her daughter’s education, health and care needs and failed to provide home to school transport. As a result her daughter and her siblings missed out on education.

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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. 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. 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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How I considered this complaint

6. I spoke to Mrs F about her complaint and considered the Council’s response to my enquiries and:
• SEND Code of Practice (“the Code”)
• Travel to school for children of compulsory school age - statutory guidance
7. Mrs F 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

8. A child with special educational needs (SEND) may have an education, health and care (EHC) plan. The EHC plan sets out the child'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.
9. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. In order to complete an EHC needs assessment the Council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist (EP), social care, anyone else the Council considers appropriate and from any person the child's parent reasonably requests. (SEND Regulations 2014, regulation 6(1))
10. The Code says the process of assessing needs and developing EHC plans "must be carried out in a timely manner". Steps must be completed as soon as practicable and the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
11. 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

12. 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.
13. 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)

14. If only one school is named in a young person’s EHC plan, then that is the school the council has determined is the nearest suitable school for the child. It is therefore the nearest ‘qualifying school’ for the child to attend for school transport consideration. This is because the council has not made arrangements for the child to attend a closer school. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346.) Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.

What happened

15. Mrs F’s daughter, J, has special educational needs. She was on the roll of a mainstream primary school (School X) which was over three miles from her home.
16. Mrs F asked the Council to provide home-to-school transport for J. The Council refused because J was not attending her nearest suitable school.
17. Mrs F asked the Council to assess J’s education health and care needs in April 2024. It agreed to do so on 14 May. This meant that, if it then went on to decide to issue an EHC plan, the plan had to be issued by 28 August.
18. Mrs F complained to the Council on 7 September that the EHC plan had not yet been issued. The Council apologised on 3 October, it said this had been caused by the national shortage of educational psychologists.
19. On 27 September, Mrs F asked the Council to provide home-to-school transport for J. The Council says it refused because J was not eligible for SEN transport as she did not yet have an EHC plan.
20. Mrs F escalated her complaint. She told the Council that she had been advised it was not safe to transport J in the same vehicle as her siblings, due to J’s challenging behaviour. The lack of transport for J was therefore affecting the family’s ability to transport J and her siblings to school and despite the family’s best efforts, all were missing out on school.
21. In response to my enquiries, the Council said this would be a social care need. In response to my draft decision it sent the child and family assessment of February 2025 which said the Council’s adoption fund had been used to pay for taxis to school. Mrs F says the Council offered transport for one child but it was unsuitable and could not be used.
22. An educational psychologist assessed J in December and the final EHC plan was issued on 11 February 2025, naming School X.
23. Mrs F again requested transport and as School X was now deemed J’s nearest suitable school, the Council provided transport from 24 February 2025.

My findings

24. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Following the Council’s decision to assess, it had to progress the assessment so it could issue J’s final EHC plan within 20 weeks of the request, i.e. by 28 August 2024. The final plan was not issued until 11 February 2025.
25. EHC plans must include advice from an EP, so the Council could not issue it until after the EP report was received in December 2024. I acknowledge there is currently a national shortage of educational psychologists which is causing delays in providing EP advice for EHC assessments. But the law nonetheless says that plans must be issued within 20 weeks. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. I therefore find it was service failure not to issue the final plan on time.
26. The final EHC plan was issued over five months late. This caused avoidable distress and uncertainty about the special educational provision J was entitled to and a delay in the opportunity to appeal to the Tribunal. This is injustice.
27. But the delay also meant J was not eligible for home-to-school transport until February 2025. If the EHC plan had been issued on time, transport would have been put in place. I therefore find the lack of transport is an injustice caused by the delay in issuing the final EHC plan.
28. Due to her needs, it was not possible for Mrs F to transport J to school along with her siblings, or to leave J or her siblings at home alone whilst transporting the other children. Mrs F says although the family paid for taxis, including using the adoption fund, and tried their best to transport the children, for about one term none of the children were able to attend school. My view is this is an injustice caused by fault.
29. 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 remedy any loss of special educational support as J did not have an EHC plan.
30. Our guidance on remedies says that for delays in issuing a first EHC plan, a symbolic payment of £100 per month of delay is appropriate to remedy the uncertainty and distress caused in relation to the special educational needs provision. It also says that for loss of education caused by fault a payment of £900 per term may be appropriate.
31. To remedy the impact on J’s and her sibling’s ability to attend school for about one term, I consider that a symbolic payment of £900 for each child is appropriate.
32. The Council has said it is using locum EPs, recruiting staff and redesigning its service to address the shortage of EPs, so I do not make any service improvement recommendations.

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Action

33. Within a month of my final decision, the Council has agreed to pay Mrs F:
• £500 to remedy the uncertainty and delay to appeal rights cause by the five-month delay in issuing the final EHC plan.
• £2,700 to remedy the loss of education of about one term for J and her two siblings. This should be used for their educational benefit.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. 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