Summary: Ms F complained about the Council’s handling of her daughter’s (X) education and transport to school. She said she experienced distress and uncertainty, and X had a loss of education and special educational needs provision. We found fault by the Council for causing delays in arranging some key EHC plan provision and school transport for X. The Council will apologise and make payment to acknowledge the impact its faults caused them. It also agreed to carry out service improvements.

The complaint

1. The complainant, Ms F, complained the Council did not provide her child (X) with an education and provision set out in her Education, Health and Care (EHC) Plan since October 2023. She said this was both before and after the SEND Tribunal Order in December 2024.
2. She also said it failed to hold annual reviews since late 2023 and wrongly initially refused school transport to the school listed in X’s EHC plan which caused delays.
3. Ms F said, as a result, she experienced distress, uncertainty and costs, and X had a loss of educational provision.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. 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)
9. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
10. 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.
11. 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(1), as amended)

Back to top

What I have and have not investigated

12. I have investigated the Council’s arrangement of X’s EHC plan and provision following the SEND Tribunal Order in December 2024. Including, its handling of Ms F’s school transport application for X in early 2025, and annual reviews in 2024 and 2025.
13. I have not investigated Ms F’s complaints relating to:
• X’s educational provision prior to the SEND Tribunal Order in December 2024. This is because we have in a previous decision found the complaint is not separable from what was being appealed regarding the school placement and special educational needs provision;
• X’s lack of free school meals when she was not attending school, concerns about the school’s transition planning, or behaviour of staff. This is because this is about what happened in a school or should be provided by X’s school;
• Ms F’s disagreement with X’s final amended EHC plan and the Council’s conduct during and following the SEND Tribunal process. This is because any concerns about the content or provision in an EHC plan carries appeal rights to the SEND Tribunal;
• provision in X’s EHC plan which was for health services to put in place, as this was not for the Council to provide; and
• the Council’s children’s social services, social care support for X, and direct payments or backdating of payments for such services. This is because she has made a separate complaint under the Children’s Statutory complaints process.

Back to top

How I considered this complaint

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

Back to top

What I found

Relevant law, guidance, and policy

Education, Health and Care Plan

16. 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. Section I of the EHC Plan outlines the name and/or type of educational placement.
17. 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)
18. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Annual reviews

19. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or cease to maintain the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)

Personal Budgets

20. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
21. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
22. The final allocation of a Personal Budget must be sufficient to secure the agreed provision specified in the EHC Plan and must be set out as part of that provision.
23. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.
24. The council’s (and health commissioning body’s where relevant) duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.

Home to School Transport

25. 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. 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. Where a child has an EHC Plan, the school named in the Plan will normally be considered the nearest suitable school.
27. If only one school is named in a child’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.
28. It is open to the council to name two schools in section I of the EHC Plan and to state that the parental school has been named only on condition of the parent paying the transport costs. (R v Essex CC ex p C [1994] ELR 54, R(M) v Sutton LBC [2007] EWCA Civ 1205, S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346)
29. Where the parent and the council prefer different placements under s.38 Children and Families Act, but attendance at the parent’s preferred school would lead to additional transport costs, the Court of Appeal has set out a test (‘the Dudley test) that councils should apply when deciding whether councils are obliged to pay for transport to a parent's choice of school:
• First it should be established whether both schools are in fact suitable, and whether arrangements could be made for the child to attend the council's choice of school (that is whether a place is available). If the council's choice is not suitable, or there is no place available, then the parent's choice is the nearest suitable school.
• If both schools are suitable, the cost of providing transport to both should be established when considering whether the parent's choice is incompatible with the efficient use of resources.
• Only if the total cost of the parent's choice of school compared to the council's choice of school (including transport) is so significant as to represent an “inefficient use of resources”, can the council name two schools, with the condition the parents provide transport to their choice of school. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346

The Council’s Home to School Travel Assistance policy

30. The Council’s policy says it is the parent or carer's responsibility to apply, or re-apply, for travel assistance. This includes where there has been a change of address or school placement.
31. It aims to provide a decision within 4 weeks of the receipt of a school travel assistance application. If more information is required from other professionals, the timescale may exceed this.
32. The Council’s policy sets out who may qualify for travel assistance. This excludes transport to schools which are not the nearest school available to meet the needs of the pupil.
33. It also says ‘When your child has special educational needs and disabilities then the nearest appropriate ‘qualifying school’ will be named on your child’s Education, Health and Care Plan. Where a parental preference school has been agreed to instead of the nearest appropriate school, this will be stated on the plan and travel arrangements will then be the responsibility of the parents’.
34. The Council may agree to provide home to school transport based on exceptional circumstances. This could include for temporary medical conditions, children with disabled parents, or for looked after children.
35. There is a right to challenge a refusal to provide travel assistance. The Policy says:
• Appeals should be made within 20 working days of the notification of a decision.
• A senior officer will complete a stage 1 review of the transport decision within 20 working days.
• If a parent or carer remains unhappy with the outcome, a stage two review can be requested within 20 working days. A panel of senior officers will consider the appeal and supporting evidence within 40 working days, and a notification of the decision will be sent within a further 5 working days.

What happened

36. This section sets out the key events in this case and is not intended to be a detailed chronology.
37. Ms F’s child (X) has been diagnosed with health conditions and needs. An EHC plan was issued for her in Autum 2023 which listed the school she should attend.
38. Ms F subsequently appealed the EHC plan to the SEND Tribunal. X stopped attending school in October 2023.
39. An annual review was held in late 2023. Ms F said the school was unsuitable for X, but the Council disagreed. The Council agreed to consult with other schools but expected X to continue attending school until the SEND Tribunal appeal had been completed.
40. The SEND Tribunal issued its decision in December 2024. This set out the provision X should receive and the special school (School Y) she should attend, which was Ms F’s preferred school and outside the Council’s area.
41. In January 2025 the Council issued X’s final amended EHC plan. This listed School Y in section I with no conditions.
42. A meeting took place between Ms F and School Y in February 2025 to arrange transition planning for X.
43. Ms F also applied to the Council for home to school transport for X to School Y. She said she did not know she had to apply for this to the new school. Two weeks later the Council refused her school transport application. It said X was not eligible as she was not attending the nearest suitable school to her home.
44. Ms F appealed the Council’s transport refusal. She said X was eligible as School Y was listed in X’s EHC plan and no other school was suitable for her.
45. In April 2025 the Council’s Travel Assistance Panel considered Ms F’s school transport appeal. It shared the outcome with her a few days later. It found X should receive school transport based on exceptional circumstances. However, this was from the following week, and it had arranged a shared transport with a 1:1 passenger assistant for X with additional space and access.

Ms F’s complaint

46. Ms F complained to the Council in early 2025. The Council provided its response, and Ms F escalated her complaint. Additional points were raised when the Council refused her school transport. The key points of her complaint and the Council’s responses were:
• X had not received an education and free school meals since she stopped attending school and Ms F had appealed to the SEND Tribunal;

The Council explained it had found X’s school to be suitable and able to meet her needs, and it expected her to attend school. Free school meals were available at or from the school.

• The Council had delayed issuing the Final amended EHC plan for X in January 2025, and it did not include all the SEND Tribunal recommendations. She also said it had amended her submission to the Tribunal.

The Council explained it had issued X’s plan within the five-week deadline, and shared this with Ms F. It did not agree this was not in line with the SEND Tribunal Order, and it explained the Tribunal had considered both versions of Ms F’s submissions.

• some provision in Section F of X’s EHC plan had not been put in place by the Council which included occupational therapy, speech and language therapy, and other support. Nor had some health and social care provision been arranged or backdated;

The Council explained it had agreed with School Y to let X start sooner to access the provision which was available. It shared information about the steps it was taking to source provision which was challenging as some interventions were not available at or from the school. However, all other provision in school were in place from the February 2025 half term. Finally, some provisions were to be provided by the NHS and were not for the Council to consider.

• the Council had failed to consider and respond to her personal budget requests before and after the SEND Tribunal decision in December 2024;

The Council explained the SEND Tribunal had left it for the Council to decide how to arrange provision, some of which Ms F had requested through a personal budget. It had decided to arrange the provision or for School Y to do so. Therefore, there would be no personal budget.

• no annual review for X’s EHC plan took place in 2024, and no review had taken place or been arranged in 2025;

The Council explained this did not happen as X was not attending school and the SEND Tribunal appeal was ongoing. It acknowledged a review was overdue and would arrange this with School Y.

• communication with the Council had been poor and it had not adhered to the complaints process. She also said unqualified staff had been asked to support X; and

The Council did not agree and explained it had responded to her complaint in line with its policy. Nor did it find evidence unqualified professionals had been instructed to work with X

• it had wrongly refused her school transport application to School Y which was listed in X’s EHC plan.

It explained it had considered her transport appeal and would share the outcome shortly. The Council subsequently shared its appeals panels decision, which found X should have school transport from April 2025. This was a shared transport with 1:1 passenger assistant.

47. Ms X asked the Ombudsman to consider her complaint. She also said some provision was still not in place and X had been unable to attend as the transport issue had not been resolved.
48. In response to our enquiries, the Council confirmed:
• School Y was available to X with most support in place from February 2025;
• some key provision in X’s EHC plan first started in June 2025. This included various therapy support in school and for professionals to work with school staff;
• some Section F provision was yet to be arranged as the school did not have the facilities or arrangements in place. It explained the provision had been challenging to arrange for logistical and practical reasons due to travel and timetabling for X;
• it had arranged an annual review of X’s EHC plan for Spring 2026. It had also informed all its staff to ensure reviews are arranged, including when SEND Tribunal appeals are ongoing or a child is not attending school; and
• it was of the view its initial school transport decision was appropriate based on information at the time as X was not attending the nearest suitable school. When it considered Ms X’s appeal in April 2024, more information was made available to it and it agreed to provide transport based on exceptional circumstances in line with its policy. Private transport for X started in July 2025.

Analysis and findings

Did the Council cause delay in arranging Section F provision for X?

49. The Council had a duty to ensure X received the provision set out in her EHC plan without delay from January 2025 when the plan was issued and she should start at school Y.
50. I have found fault by the Council for causing delays or a service failure to arrange some of X’s EHC plan provision. I was also mindful the Council was aware most of the provision would be in the EHC plan as this was not disputed in the SEND Tribunal appeal. This includes:
• X had been out of school for a long period of time, School Y was asked to arrange transition planning with Ms F. However, this was first arranged for February 2025. As the SEND Tribunal Order was in December 2024, I found there was a short delay to start the transition planning with Ms F. Although School Y had been asked to do so, it was the Council which was ultimately responsible for this;
• when School Y confirmed X could start and provision was available at school after the February 2025 half-term, several key section F provisions were still not in place. This included involvement of professionals such as speech and language and occupational therapy support to provide steps and guidance to adults around X in school. This support was first available to her in June 2025;
• some provision remains unresolved due to logistical and timetabling challenges. While I understand the fact the school is out of the Council’s area and the travel distance makes this difficult, this remains a service failure as the Council has a duty to ensure it is in place.
51. I have not seen evidence the Council or School Y allocated unqualified staff to support X. I cannot therefore reach a view on this point of her complaint.

Annual reviews

52. The Council was required to ensure annual reviews took place every 12 months of X’s EHC plan. The last review took place in late 2023 and no reviews has taken place in 2024 and 2025. A review is now planned for Spring 2026.
53. While the SEND Tribunal appeal was ongoing in 2024 and X was not attending her school placement, the reviews must still take place. The Council was therefore at fault for failing to arrange reviews for over two years.
54. The Council has confirmed it has taken steps to ensure all staff are aware of this requirement. I have therefore not made any further recommendations on this fault.

Personal budget request

55. I understand Ms F has requested to be able to provide some provision for X through a personal budget. The Council is not required to provide a personal budget if it has decided to arrange provision itself or through a school. This includes in 2024 when a school placement the Council had found suitable for X was available to her. I also note some direct payment support related to the Council’s social care support for X, which is best addressed in Ms F’s separate statutory children’s complaint with the Council.
56. However, I found delays and a service failure by the Council from January 2025 to put some key provision in place for X. While the Council was entitled to decide it would provide Section F provision, or arrange for school Y to do so, this was an opportunity to review whether some or all of the provision should be provided through a personal budget to Ms F.
57. I cannot say whether this would have been appropriate or not in the circumstances. However, some limited provision could be provided in or out of school time, and such provision may therefore have been provided sooner if the Council had agreed to Ms F’s requests.
58. I have not found fault in the Council’s process to reach its decision around not providing Ms F with a personal budget. However, its communication and reasons were not made clear to her when delays in arranging provision were ongoing. This was fault.

School transport

59. The Council did not agree it was at fault for failing to provide X with home to school transport from January 2025 to school Y. It said it was first responsible for doing so after its appeals panel agreed to provide transport in April 2025.
60. I agree the Council was not at fault for failing to provide transport between January to February 2025. This is because Ms F was required to reapply for travel assistance for X when she was attending a new school placement, and she did not apply until February 2025.
61. However, I found the Council at fault for failing to make suitable school transport available to X from late February 2025. In reaching my view, I was conscious:
• the evidence showed that the Council named only one school in X’s EHC Plan in January 2025 and that was School Y. There was no transport conditions attached to this placement in Y’s EHC Plan, nor did the Council make any arrangements for X to attend a closer school by naming it in their Plan. Based on this, School Y was the nearest suitable school for X as per the statutory guidance;
• the Council had a duty to provide free home to school transport to enable X to attend the only school named in their EHC Plan, which is outside the statutory walking distance;
• the Council’s transport decisions in February and April 2025 both failed to properly apply the principles set out in the Dudley case. If this had been done, it would have been clear the nearest suitable school was School Y, and no cost comparison between suitable schools had been completed; and
• the Council did agree to provide X with travel assistance in April 2025 following its appeals panels decision, which was based on her exceptional circumstances. However, I understand some shared transport was considered but this did not take place. It subsequently took until July 2025 for private transport for X to be put in place.

Complaints handling

62. Ms F said the Council did not adhere to its complaints policy when she brought her concerns to its attention.
63. I have not found fault in how the Council handled this process. This is because it was largely in line with its policy and there were no unnecessary delays in the process. I would not expect the Council to provide complaint responses following Ms F’s disagreement with its transport decisions as this was what the appeals process was for.

Injustice

64. I have found faults and a service failure by the Council which caused Ms F and X an injustice, which were:
• Ms F experienced distress and uncertainty as a result of the Council’s failure to arrange annual reviews for X’s EHC plan, its delay in arranging some Section F provision for X, its lack of communication around the personal budget requests, and its flawed home to school transport decisions.
• X experienced a loss of education and Section F provision as she did not attend her education from late February 2025 when the transition planning, all Section F provision, and school transport should have been in place. Most of this was resolved by late June 2025;
• X continues to miss out on some Section F provision in or out of school, which the Council is yet to put in place.

Back to top

Action

65. To remedy the injustice the Council caused to Ms F and X, the Council should, within one month of the final decision:
1. apologise in writing to Ms F to acknowledge the injustice its faults and service failure 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 Ms F £2,400 to acknowledge the loss of education and special educational needs provision X experienced between February to June 2025;
3. pay Ms F a symbolic payment of £250 to acknowledge the unnecessary distress and uncertainty she experienced as a result of the Council’s faults and service failure; and
4. arrange for the remaining Section F provision for X to be put in place without delay. It should also pay an additional £100 per month from July 2025 until X receives this or it is no longer in her EHC plan. This is to acknowledge the ongoing loss of this limited provision for X. It could be arranged by the Council, school Y, or through a personal budget to Ms F. This remedy is payable for up to 6 months, after which Ms F can make a new complaint to the Council.

In total the Council should pay Mrs F £2,650, and the ongoing remedy as set out above.

66. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. review the Council’s Home to School Travel Assistance Policy to ensure it correctly applies the law and principles set out in case law (Dudley test) regarding the nearest suitable school for school transport decisions; and
5. remind staff involved in the Education, Health, and Care plans process and school travel assistance decisions about the criteria for the nearest suitable school for travel assistance purposes. Including, the Council’s duty is to provide transport for a child where the statutory criteria are met, and only one school is listed in Section I of a plan with no conditions attached.
67. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

68. I have completed my investigation with a finding of fault by the Council which caused Ms F and X and injustice. The Council will apologise and make payment to acknowledge the impact this had and continues to have.

Back to top

Investigator's decision on behalf of the Ombudsman