Summary: We will not investigate this complaint about the special educational needs and school transport provision made by the Council for Mr X’s child. There is no evidence of fault by the Council in the matter of transport, Mr X has had a right of appeal to the SEND Tribunal regarding the provision at school he requires for his child, and there is not enough potential injustice created by others matters on their own to warrant our further involvement.

The complaint

1. Mr X complained the Council failed to backdate payments for home-to-school transport to cover a period from May 2023 to January 2024. He also complained the Council failed to assess his child’s special educational needs (SEN) at school properly.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement.

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

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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.

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Regarding school transport between May 2023 and January 2024, Mr X’s child was under compulsory school age and attending a private nursery school. The Council has no duty to provide free home-to-school transport to children below compulsory school age, which starts at the beginning of the school term following the child’s fifth birthday. So, it did not have to do this during the whole school year 2023-24. That it exercised its discretionary power to do so from January 2024 does not mean it should have backdated the funding to May 2023.
9. This is because the complaint correspondence shows the child did not move to the Council’s area until June 2023, and their Education Health and Care (EHC) Plan did not name the school until August 2023. Even for a child of compulsory school age, the Council would have had no such duty. When the EHC Plan was issued, it did not include free transport, so again there was no duty created. It was not the Council’s duty to invite Mr X to apply for discretionary free transport. I also note the correspondence shows he did not raise the issue until January 2024.
10. The only other issue raised by Mr X that is within our legal power to consider is school meal vouchers. However, the Council has no duty to provide these where a child is attending a private school.
11. Regarding the provision made by the school, the correspondence shows this was mostly a matter of wanting changes, for example assistance with toileting, rather than of failure to deliver what was specified in the EHC Plan. Mr X had a right to appeal to the SEND Tribunal for the provision specified in the EHC Plan to be changed. It would have been reasonable to use this right. I am satisfied that any issues with non-provision of what was included in the Plan would not have created sufficient injustice on their own to warrant investigation by us.

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Final decision

12. We will not investigate Mr X’s complaint because:

• There is not enough evidence of fault in the matter of school transport back-payments and school meal vouchers to warrant our further involvement;
• Any injustice caused by matters of non-provision of what was specified in the child’s EHC Plan is unlikely to have caused enough injustice to warrant our involvement; and
• Mr X had a right it was reasonable to use to appeal to the SEND Tribunal for provision that was not in the EHC Plan the Council issued.

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Investigator's decision on behalf of the Ombudsman