Summary: Mrs F complained about the Council’s handling of issues around her son (X) accessing his education, school transport, and how it communicated with her. She said she and X experienced distress and uncertainty, and X had a loss of education. We found the Council at fault for failing to ensure X had an education and school transport he could access during a six-month period, and there was some fault in how it communicated with Mrs F. The Council will apologise and make payment to Mrs F to acknowledge the impact its fault had on her and X.

The complaint

1. The complainant, Mrs F, complained about the Council’s handling of her son’s (X) education since May 2024. She said it:
• caused delays in arranging school transport in the Summer term;
• failed to provide X with a full-time education he could access. This was because it did not find any suitable placements, or no transport was arranged to an alternative provision placement; and
• communicated poorly with her and failed to respond to some of her communication as promised.
2. Mrs F said, as a result, she and X had experienced distress and uncertainty, and X had a loss of education at a key stage of his education.

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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. 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)
5. 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

6. I have investigated Mrs F’s complaint about the Council’s handling of X’s education between May 2024 to December 2024.
7. I have not investigated:
• any concerns Mrs F may have about the school placements as such issues carries appeal rights to the SEND Tribunal; and
• any issues or concerns about the education X received from January 2025 as this was not part of Mrs F’s complaint to the Council. If she believes the Council failed to provide a suitable education X could engage with, she can raise a new complaint with the Council.

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How I considered this complaint

8. I considered evidence provided by Mrs F and the Council as well as relevant law, policy and guidance.
9. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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

11. 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. 
12. 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). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Alternative provision

13. 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.
14. 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)
15. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
16. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

17. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

School transport

18. 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.
19. 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

20. Mrs F’s son (X) has health and behavioural challenges which impacts his ability to receive an education. He has an EHC plan which sets out his special educational needs and list the special school placement he should attend.
21. In April 2024 X was being transported to his school placement by taxi arranged through the Council’s school’s transport team. Mrs F told the Council she was concerned X was at risk of losing his transport due to issues which had occurred. X was on a reduced timetable at the time.
22. By May 2024 the taxi company suspended X’s transport due to behaviour issues. The Council was aware and looked into providing X with a passenger assistant. Mrs F and the Council continued to communicate. It told her it was chasing this, or the transport was being put in place. However, no transport was arranged until a few weeks before the end of the academic year.
23. Mrs F also raised concerns about X’s education as he was on a reduced timetable and had no transport to access his school placement. He was therefore only receiving a very limited education. The Council said it would look into it.
24. In June 2024 Mrs F complained to the Council about X’s lack of transport and asked for alternative provision to be put in place. She said the Council had communicated poorly with the school in the process. She also suggested a possible placement for X for September 2024.
25. An annual review was held for X’s EHC plan in July 2024. This was partly to consider X’s school placement for September 2024. X was only receiving homework from his school at the time.
26. The Council upheld parts of Mrs F’s complaint in August 2024 and apologised. It said:
• there had been delays from May 2024 when X’s transport arrangement stopped. This was because the transport provider had not been successful in recruiting a passenger assistant. It then had to find a different provider which let to further delays. Transport had since been put in place for July 2024 to the school set out in X’s EHC plan on a part time basis;
• it had considered Mrs F’s request for a local school placement or alternative provision. However, it acknowledged its communication had been unclear and it had not provided an update when a placement did not respond to the Council; and
• an annual review would take place, and X’s school had made a referral to a local college for an early college entry placement for September 2024.
27. The Council issued X’s final amended EHC plan in late August 2024, which listed the X’s existing school placement.
28. X started attending the early entry college placement in September 2024. However, within a month Mrs F told the Council the placement had broken down.
29. A meeting took place between the Council, X’s school and Mrs F. The Council said it would provide a list of alternative provisions available to the school.
30. Mrs F said she chased the Council several times and were promised callbacks. When the Council responded it explained it had asked X’s school to provide alternative provision, as it was unlikely another school placement could be found due to the time of the year.
31. Mrs F communicated with X’s school regarding alternative provision. Some provision at a farm-based placement for therapeutic work-based learning was subsequently arranged for once a week, but the school struggled to find any other provision for X.
32. Mrs F again asked the Council for support and shared her frustrations. The Council said a manager would call her back. A week later the Council apologised for not being able to call her back and said it would call her by the end of the week. It said it would look into arranging transport to X’s original school placement listed in his EHC plan.
33. When the Council did not return her call, Mrs F made a further complaint to the Council. She said:
• its communication had been poor and it had failed to act on promises regarding action and call backs since the October 2024 meeting;
• X was only receiving three hours of provision at the farm-based placement as the school and Council had not found anything else; and
• no transport had been arranged to the school placement, after the early college placement broke down. X had therefore not had any actual education. Nor had there been any clarity over the transport to alternative provision placements.
34. The Council told Mrs F about a placement it believed the school should refer X to. It also explained transport could only be provided to the placement listed in his EHC plan, but it would consider if this could be arranged to an alternative provision.
35. X could not attend the farm-based placement subsequently as the Council did not agree to the transport.
36. The Council told Mrs F it would refer X to its Interim Provision Service which could provide 1:1 face-to-face teaching in the home or community. It explained in the meantime X’s allocated school should provide an education.
37. In response to Mrs F’s complaint the Council:
• apologised X had not received an appropriate level of education when he was unable to attend his allocated school placement. It acknowledges he had only received three hours during some weeks at the farm-based placement;
• explained its transport policy which sets out transport can only be provided to the placement named in an EHC plan. If a school arranges alternative provision, the school is also responsible for transport.
• accepted its communication around transport could have been clearer and it had provided short notice when transport to the farm-based placement would not be provided;
• found it had communicated in a timely manner to Mrs F’s communication and collated its response to her; and
• X’s annual review was due and would be held in December 2024. It had made a referral to its Interim Provision Service to ensure he has access to an education whilst unable to attend a school setting.
38. Mrs F was not happy with how the Council’s handled X’s education and its responses to her complaints. She asked the Ombudsman to consider her concerns.

Analysis and findings

X’s education and transport

39. The Council has accepted X did not receive the amount of education he was entitled to between May to December 2024.
40. In May 2024 when X’s transport arrangement was stopped by his transport provider, the Council still had a duty to ensure he had school transport available to bring him to his school placement. I acknowledge the Council’s challenges in putting this in place, however, its delay was a service failure which caused X a loss of education for the remainder of the academic year.
41. In October 2024 Mrs F told the Council X’s college placement had broken down. However, he did not receive any further education, other than some weeks where he could attend the farm-based learning for a few hours. This was fault.
42. In reaching my view, I was conscious:
• while the Council is entitled to delegate the arrangement of alternative provision to the school listed in X’s EHC plan, it remained responsible for ensuring he had a suitable education available to him which he could access;
• transport was not arranged to any alternative provision, nor to his school placement. He therefore could not attend an education and only received some limited hours at the farm-based provision before this stopped; and
• I acknowledge it is the Council’s policy to only provide school transport to educational placements listed in an EHC plan. However, when school transport is required to any placement, it is for the Council and the allocated school to determine how this is put in place. This may be through further funding from the Council to the school to facilitate this, or to be arranged directly by the Council.
43. X therefore had a loss of education for most of the period between May and December 2024 at an important stage of his education. I am also satisfied this caused X and Mrs F distress and uncertainty.

Communication and complaints handling

44. I have considered whether there was fault in the way the Council communicated with Mrs F from May to December 2024. The Council accepted some fault in how it communicated with her around school transport.
45. While the Council remained in communication with Mrs F during the period of the complaint, I found fault in how the Council communicated with her. This was:
• poor communication with Mrs F around school transport in Summer 2024 and in late 2024. This is because its information was unclear, and it was not until late 2024 it properly explained why it could not provide transport to alternative provisions not listed in X’s EHC plan; and
• failing to respond to some communication in a timely manner, or when it had promised her call-backs or responses.
46. I am satisfied Mrs F experienced distress and uncertainty as a result of the Council’s poor communication with her. Its apology was not enough to remedy the injustice this caused.
47. I have also considered how the Council handled Mrs F’s complaints. It took the Council six weeks to respond to her initial complaint in Summer 2024. This was two weeks longer than set out in its complaints policy and it did not inform her about the delay beforehand. This was fault. The Council apologised for the delay, and this was appropriate to acknowledge the frustration this caused Mrs F.
48. There was no delay in the Council’s late 2024 complaint response.

Service improvements

49. I have not made service improvement recommendations as the Council shared information about the steps it had taken to:
• address transport issue which included staff training, management oversight of the issues learnt from Mrs F’s complaint, and improved communication between its transport and other teams.
• Improve response times for complaints which included staff reminders and supervision.

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Action

50. To remedy the injustice the Council caused to Mrs F and X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs F to acknowledge the injustice its faults caused her and X;

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.

2. pay Mrs F a symbolic payment of £300 to acknowledge the distress and uncertainty she and X experienced as a result of the Council’s faults; and
3. pay Ms F a further £3,000, to use as she sees fit for the benefit of X, to acknowledge the loss of education he experienced from May to December 2024.

In total the Council should pay Mrs F £3,300.

51. The Council should provide us with evidence it has complied with the above actions.

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Decision

52. I have completed my investigation with a finding of fault causing injustice. The Council will apologise and make payment to acknowledge the impact its faults had on Mrs F and X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman