The Ombudsman's final decision
Summary: There is no evidence of fault in how the Council managed the implementation of provision in a child’s education, health and care plan, nor in matters arising from his move to a new area and school. We have therefore completed our investigation.
The complaint
I will refer to the complainant as Miss Y, and to her son as C.
Miss Y complains about the Council’s handling of matters relating to her C’s education. These are that: the Council did not ensure the timely implementation of the provision set out in C’s education, health and care (EHC) plan; the Council refused to provide C with school transport or a fuel allowance, when the family moved to a new area at short notice; and that the Council did not ensure C had a smooth transition to his new school.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
How I considered this complaint
I reviewed Miss Y’s correspondence with the Council, C’s EHC plan, the Council’s contact with C’s new school, and the Council’s decision letter on Miss Y’s application for home-to-school transport.
I also shared a draft copy of this decision with each party for their comments.
What I found
Legal and administrative background EHC plans A child with special educational needs may have an education, health and care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
The EHC plan is set out in sections which include: Section B: The child or young person’s special educational needs.
Section F: The special educational provision needed by the child or the young person.
Section I: The name and/or type of school.
The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act).
Home-to-school transport 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.
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.
Children unable to attend school Section 19 of the Education Act 1996 (‘s19’) says “councils must make arrangements for the provision of suitable education at a school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless arrangements are made for them”.
Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
What happened Miss Y’s son, C, has been diagnosed with a learning disability, which also affects him behaviourally and in certain physical aspects.
On 20 April 2021 the Council issued an EHC plan for him. Part of the plan was that the Council would commission an occupational therapist (OT) to work with C and develop programmes to help him overcome some of his physical difficulties. The OT would also train C’s teachers and teaching assistants to implement these programmes.
On 11 May, the Council sought quotes from three local OT providers. One responded on 17 May to provide a quote, and another responded on 27 May to say it had no capacity to take the work on. The third provider did not respond.
On 10 June, Miss Y informed the Council the family was moving to a different area some distance away (although still within the Council’s jurisdiction). The same day, the Council sent a consultation to the nearest primary school, to ask whether it could accommodate C.
On 21 June, the Council informed Miss Y its decision-making panel would consider the OT quote when it met the following week.
Shortly after this Miss Y contacted the Council to say the local primary school had not received its consultation form. The Council re-sent this to the school on 24 June, and the school responded the same day to confirm it could accept C. The school said it would look to make immediate arrangements to ensure it could implement C’s EHC plan.
On 29 June, the school informed the Council it could not make arrangements to implement the EHC plan that term, due to staff shortages. The school explained it was due to break up for summer on 16 July asked if C could start in September instead, although it confirmed it would invite him to attend for transition sessions the following week.
On the same day, Miss Y submitted a formal complaint to the Council. The complaint included that the Council: had not yet implemented the OT provision in C’s EHC plan; had not properly managed the consultation process with the new school. As part of this Miss Y complained the Council had not asked about her preference before sending a consultation to the local primary school; had not agreed to provide school transport or a fuel allowance while C was still on roll at his old school. Because of the distance from there to his new home, this meant C had stopped attending on 28 June; had not managed C’s transition to his new school; and had not arranged alternative provision for C for the period he was not attending school.
On 30 June, the Council panel met and agreed the OT quote, but noted it would need to seek a new quote because of the family’s house move. The Council sought and received an updated quote the same day.
Also on 30 June, the Council issued an amended EHC plan for C, naming the local school as his new placement.
The Council responded to Miss Y’s complaint on 23 July. It explained it had been in the process of commissioning an OT to deliver C’s EHC plan, when it learned the family was moving home and that C would be changing schools. The Council said there was no date in the EHC plan by which the OT training needed to be implemented, and it had decided it was “more beneficial” to train staff at the new school rather than the one C was about to leave. It added most of the OT provision had no start date and was due to begin in September.
However, the Council acknowledged the OT was meant to review C’s programmes every six weeks and that this had not happened. For this reason it partly upheld this part of Miss Y’s complaint.
The Council said that, upon learning on the house move, it immediately consulted with the local primary school because it was the closest to the family’s new home, and because Miss Y had said it was the one she would “probably be looking to send [C] to”. It pointed out she was not obliged to send C there if she chose a different school.
The Council also said it had sent the consultation to the school on 10 June, and immediately contacted the school when it found out it had not received this. The Council said it had found out about the move on 10 June and issued the amended EHC plan on 30 June, and so refuted it had caused any delays.
The Council said it had not considered Miss Y’s move to be in exceptional circumstances, which, under its home-to-school transport policy, meant it did not agree to provide transport to C’s old school. It also said it would have taken longer to arrange transport to the old school than name a new one in the EHC plan.
The Council explained it was for C’s new school to arrange his transition and there was no requirement for it to be involved in this. It also said it had no duty to arrange alternative provision for C, because he had remained on roll at his old school and there had been no delay in arranging a new one for him.
Miss Y raised a stage 2 complaint on 23 July.
The Council sent its final response on 4 October, apologising for the long delay.
The Council reiterated that C’s EHC plan did not set a deadline for when staff training should be completed. It explained again that, due to the C’s imminent school move, it considered it sensible to concentrate on training the new staff. The Council did not agree C was unable to start his new placement because the OT training had not yet taken place.
The Council conceded its communication with the OT provider had not been “sufficiently clear” which caused some confusion, but noted the OT had visited the new school in September. However, it reiterated it had had no duty to arrange either school transport or alternative provision for C because there had been no delay in arranging a new school for him. The Council explained it was the home-to-school transport panel’s decision whether Miss Y’s circumstances constituted ‘exceptional’.
The Council also reiterated that there was no requirement for it to have attended transition meetings at the new school, although it said “in this circumstance it may have been helpful to support the communication process”.
Having upheld some elements of Miss Y’s complaint, the Council said it would ensure the start date for speech and language therapy (another element of C’s EHC plan) was clear. It also said it would consider sending officers to attend transition meetings for children with EHC plans in future.
Miss Y had originally referred her complaint to the Ombudsman in June 2021, before she had made her formal complaint to the Council. As this made it premature for our purposes we referred it back to the Council to consider. Miss Y then resubmitted her complaint to the Ombudsman in April 2022.
Analysis I have identified three broad elements to Miss Y’s complaint, and I will address each separately and in turn.
The Council did not ensure the timely implementation of the provision set out in C’s education, health and care (EHC) plan C’s EHC plan lists various aspects of provision under section F. Central to this is the various points for the OT to implement, including the development of programmes for C and to provide training on these for his teachers and teaching assistants.
C’s EHC plan was issued on 20 April. The Council sought quotes from local OT providers approximately three weeks later, on 11 May, and received responses between 17 and 27 May. It then considered and agreed the quote it had received on 30 June, and on the same day obtained an updated quote to account for the family’s move to a different area and school.
I understand Miss Y considers the OT provision should have started in C’s old school. However, before implementing the provision, the Council had first to seek a provider and agree to its quote; this took a little over two months. I do not consider this is a delay amounting to fault.
It is unfortunate this then coincided with the family’s move, but this is evidently not due to Council fault. And, given C was then imminently due to transfer to a new school, I do not criticise the Council’s decision it made no sense for his old teachers to receive the OT training.
I am conscious C was unable to start his new school properly until September, and this meant a further delay in the OT provision. However, due to the requirements of C’s EHC plan, the school explained it could not accommodate him for the (brief) remainder of the 2020/21 school year. Again, this was not due to Council fault.
I note, in its stage 2 response to Miss Y, the Council agreed there was some form of communication breakdown with the provider, which meant the OT did not visit C’s new school until 25 September. However, the Council has also provided me with a copy of the OT’s report on C, which is dated 12 September, and refers to a visit on 10 September.
I am therefore unclear exactly what the Council was referring to in its response to Miss Y. Either way, however, the delay here was a matter of a few weeks, and I am not persuaded this is a significant matter.
I find no fault in this element of Miss Y’s complaint.
The Council refused to provide C with school transport or a fuel allowance, when the family moved to a new area at short notice Miss Y has explained that it was necessary for the family to move home for support purposes, and because of her own health situation. However, the move was over a significant distance and meant it was now extremely difficult for C to continue attending his old school. Although she applied to the Council for home-to-school transport, it refused her application.
The Council’s transport policy says: “If your new address is within Staffordshire, your move was sudden and due to exceptional circumstances, and the pupil was attending the catchment or nearest suitable school for your last address (but it is no longer the catchment or closest school for the new address) we may consider offering travel assistance.
“An application should be made and you must attach evidence of what you consider to be your exceptional circumstances. Applications for pupils in years 10 and 11 will be given a higher level of consideration but each application will be considered on its' own merits considering all the circumstances and supporting evidence provided. There is no guarantee that assistance will be provided for any case.”
The Council’s stage 1 response explained it did not consider Miss Y had ‘exceptional circumstances’. I understand why Miss Y then questioned what would be considered exceptional, if her circumstances were not. However, the Council had already written a separate decision letter in response to Miss Y’s application, in which it explained it had turned it down because it could arrange C a new school more quickly than it could arrange transport back to the old one.
This was a decision the Council was entitled to make and I do not consider I have any grounds to question it. I therefore find no fault in the Council’s decision to refuse Miss Y’s application.
I am also conscious that, although the Council did quickly arrange a new school for C, the placement did not become properly available to him until September. I understand that, after the move, C attended his old school sporadically, before leaving entirely on 28 June. This meant there was a period of time in which C was not attending either his old or new school.
The law says that, where a child is unable to attend school because of illness, exclusion or other reasons, councils have a duty (‘the s19 duty’) to arrange alternative provision for them. The provision should begin from the 15th day of absence, at the latest.
Although it is for the Council to have decided whether the reason for C’s absence engaged its s19 duty, given the circumstances (that C could not begin attending his new school because of staffing shortages) it appears reasonable to suggest it did.
However, by my calculation, there were only 14 school days between 28 June and 16 July (which was the date C’s new school broke up for summer). There was, therefore, no requirement for the Council to have made alternative provision for him in this time anyway.
The Council did not ensure C had a smooth transition to his new school Miss Y complains the Council did not involve itself in C’s transition to his new school. In response, the Council has explained there is no requirement for it to attend school transition meetings, although it has accepted this may have been beneficial in C’s case, and has said it will consider doing so in future.
We would normally expect schools to manage transition and so, as the Council says, there is generally no requirement for local authorities to be involved in this. This does not mean local authorities should not attend transition meetings, and in this case the Council has conceded it may have been beneficial, but I do not consider this in isolation amounts to fault by the Council.
In particular I cannot see any suggestion, from the evidence, that C did not settle smoothly into his new school. While he did not start there properly until September, this was because of staffing shortages at the school and not because of any failure in the transition process. And, again, while I am conscious the Council has accepted there was some delay in the beginning of the OT provision in September, this was apparently caused by a communication failure between the Council and provider, which would not have obviously been resolved by the Council’s involvement in C’s transition to the new school.
Taking this together, I find no fault in this element of Miss Y’s complaint.
Final decision
I have completed my investigation with a finding of no fault.
Investigator's decision on behalf of the Ombudsman