The Ombudsman's final decision
Summary: We will not investigate this complaint about the mileage rate paid by the Council to Mrs X and the legality of the Council’s policy. There is not enough evidence of fault to warrant investigation.
The complaint
Mrs X said the Council is paying her a mileage rate that is too low at 25p per mile for her to transport her child to the educational provision named in the child’s Education Health and Care (EHC) Plan. She said it should be paying 45p per mile in line with government guidance and the practice of other councils.
The Ombudsman’s role and powers
The Ombudsman investigates 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 may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6)) The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Although Mrs X has appealed to the Special Educational Needs and Disability (SEND) Tribunal about the content of her child’s EHC Plan, she is correct that she cannot raise the issue of mileage rates there. Her complaint is therefore separable from the role to the SEND Tribunal.
It is understandable, given the recent significant rise in the cost of petrol, that Mrs X finds the Council’s rate low. And I note that other councils locally and further afield may offer a higher mileage rate for parents in similar circumstances. However, I am not able to reach a decision based on issues of fairness or the reasonableness of the case made because the Ombudsman’s role is restricted to matters of procedural fault causing personal injustice.
There is no statutory guidance that sets a mileage rate. I cannot therefore reach a view that it is fault for the Council to pay Mrs X 25p per mile. Nor can I find it fault for the Council’s policy to pay 25p per mile to other parents transporting their children to provision named in an EHC Plan.
The legality of the policy is not something on which I can take a view. That would be a matter for a court to decide. And any change to the policy not ordered by a court would be for elected members of the Council to decide.
Final decision
We will not investigate Mrs X’s complaint because : There is not enough evidence of fault to warrant investigation; and The legality of a policy is a matter for a court, and it would therefore be reasonable for Mrs X to go to court.
Investigator's decision on behalf of the Ombudsman