Summary: There was fault and delay by the Council in implementing an order of the SEND Tribunal. This delayed Y being able to attend the school the Tribunal had determined was suitable and caused distress and uncertainty. The Council also failed to consider a remedy payment under its own complaint process, which could have resolved the complaint without the need for Ms X to come to the Ombudsman. The Council has agreed to apologise, make a symbolic payment and make service improvements. The complaint is upheld.

The complaint

1. Ms X complains on her own behalf and on behalf of her child, Y. Y has an Education, Health and Care (EHC) Plan maintained by the Council. Ms X complains:
• The Council failed to secure a place at the school named in an amended EHC Plan issued following a tribunal decision in Autumn 2023. While Y continued to attend their old school until April 2024, this school was not able to provide all the special educational provision required. The Council has not offered any remedy for failing to secure the school placement.
• Y missed out on education between April and June 2024 due to lack of home to school transport.
• Ms X had to provide transport herself, which was inconvenient and created additional costs.
• The Council offered a mileage allowance to resolve the transport complaint, but this did not include any reimbursement of other costs or any payment to acknowledge the impact on the family.
• The Council said it could only make payments (other than mileage) for ‘compensation’ through its litigation and insurance team.

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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. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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 the period of Autumn 2023 to Summer 2024.
7. I have investigated the actions of the Council. I cannot consider the actions of the school except in relation to delivery of provision in Section F of the EHC Plan.

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How I considered this complaint

8. I have considered information provided by Ms X and the Council including:
• Complaint documents
• EHC Plan.
9. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014
• The Special Education and Disability Regulations 2014
•   The Special Educational Needs and disability code of practice: 0 to 25 years
• The Education Act 1996, as amended.
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

Relevant law and guidance

11. 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. (Education Act 1996, s.508B).
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 of (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)  

Factual background

13. Ms X and the Council resolved an appeal to the SEND Tribunal by consent order in Autumn 2023. Once the Tribunal has approved a consent order a council must carry out the order within specified timescales.
14. The order in Ms X’s case was to amend the EHC Plan, including amending the named school.
15. The Council told Ms X in its complaint response it should have amended the Plan by early November. It did not issue the amended Plan until February, a delay of three and a half months.
16. The Council also acknowledged delay in securing a place at the new school, which took five months from the Tribunal order. However, the Council says Y continued to attend their old school until Spring 2024, so Y was not without education. The Council acknowledged that some of the special educational provision may not have been in place until Y moved to the new school.
17. Ms X says she tried to engage with the transport team in Autumn 2023 and felt the Council was trying to get her to agree to provide transport herself. Ms X says eventually in Spring 2024 the Council agreed to meet her to reach a solution about transport.
18. Documents show the Council’s transport team approached providers once the new school place was secured in Spring 2024. Due to Y’s disability and health needs the Council had to approach three providers and liaise with Ms X before a suitable transport solution was identified. This meant Ms X had to transport Y herself for approximately six weeks after Y started the new school and Y missed twelve days of school. The Council has offered Ms X reimbursement of her mileage expenses. It says it cannot offer a higher payment without Ms X making a claim to its litigation and insurance team. The Council said Y’s particular needs meant the procurement process took longer than usual.
19. Ms X told me the mileage has not yet been reimbursed because she was unsure whether to accept this before we considered her complaint.
20. Ms X’s complaint letter to the Council in Summer 2024 detailed the impact to the family of Y attending the wrong school for several months and of the transport delay. Ms X’s letter expressed:
• Difficulties in recruiting carers due to the uncertainty over school times / placements.
• Y’s sibling missing part of their school day for the six weeks Ms X had to provide transport to the new school.
• Costs of instructing a solicitor.
• Worry they would lose the place at the new school if funding was delayed.
• Impact on work arrangements and needing to use annual leave.
• Added stress on the household including Y’s sibling missing activities.
• Time and trouble resolving the issues with the Council.

Analysis

Fault

21. There was a delay of several months in issuing the amended EHC Plan. This was fault and caused worry and uncertainty.
22. There was a five month delay in Y being able to start the school ordered by the Tribunal. The Council has acknowledged and apologised for this delay but offered no remedy, although it acknowledges some special educational provision in Section F may have been missed in breach of s.42 of The Act.
23. There was a six week delay before transport was in place at the new school. Ms X was proactive in trying to engage the transport team early so, while the Council has explained why the process took longer than usual, the delay could have been avoided if there had been better engagement and communication earlier. Given there was five months before the placement started there was ample time to have identified Y’s transport needs in advance.
24. It is not accurate for the Council to say it cannot offer any payment above mileage expenses. Councils can and do offer reimbursement of costs and symbolic payments to resolve complaints. I acknowledge this would be under a Council’s complaint policy, not their transport policy. We publish guidance on remedies which sets out our expectations for when organisations should consider financial payments to resolve complaints. The Council was wrong to indicate Ms X would need to bring a legal or insurance claim. This was not a case where there was a legal remedy Ms X could have used. The appropriate route was via the complaints process.

Injustice

25. Complainants should not need a solicitor or other professional adviser to help them make a complaint to us or to the Council. We do not usually recommend legal fees are reimbursed when someone can resolve their complaint by using our free service.
26. Y did always have a school place available to them, except a short period while waiting for transport to be put in place. Y was not however able to attend the school the Tribunal had determined was suitable for them. The Council has accepted some of their specialist provision may not have been in place until they moved schools.
27. We can recommend symbolic payments to acknowledge the distress, frustration and inconvenience that has arisen from fault or delay, and to acknowledge the impact of lost education, or the uncertainty whether provision has been missed.

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Agreed action

Within four weeks of my final decision, the Council has agreed:

28. To apologise to Ms X for the fault and injustice identified in this decision statement. 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 to Ms X.
29. To pay Ms X £300, being £50 per week for the inconvenience and impact of the delay in putting transport in place which impacted the family’s day to day activities.
30. To reimburse Ms X’s mileage expenses.
31. To pay Ms X £150 to acknowledge the impact of the delay in issuing and implementing the EHC Plan, and the time and trouble incurred bringing the complaint and resolving the issues of delay.
32. To pay Y £1000 to acknowledge the distress and uncertainty and impact on their education from the five month delay in securing a place at the school the Tribunal deemed suitable and the missed days while transport was secured.

Within two months of my final decision the Council has agreed:

33. To ensure it has systems in place to follow up Tribunal orders and check they are fully implemented.
34. To ensure transport officers understand that remedy payments for fault can be made via the complaint process and are not restricted by the transport policy.
35. The Council will provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation. There was fault and delay by the Council in implementing an order of the SEND Tribunal. This delayed Y being able to attend the school the Tribunal had determined was suitable and caused distress and uncertainty. The Council also failed to consider a remedy payment under its own complaint process, which could have resolved the complaint without the need for Ms X to come to the Ombudsman. The agreed actions set out above are a satisfactory remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman