Summary: Ms B complained about how the Council dealt with an independent school’s decision to terminate her son’s placement. She also said it failed to properly advise her about rights at independent schools and failed to provide enough school provision during the COVID-19 lockdown. As a result, she said both she and her son experienced distress, and her son had a loss of education. We found the Council was not at fault. This was because it acted appropriately and the School’s decision was outside its control. We have not investigated the other matters of the complaint as these were late or the Council has not yet had the opportunity to respond.

The complaint

1. The complainant, whom I shall refer to as Ms B, complained about the Council’s handling of her son’s placement at an independent School (the School). She said it failed to:
• properly advise her about her rights at an independent school and it was wrong to place her son in the School;
• do enough before her relationship with the School broke down and offer mediation when the School terminated her son’s placement: and
• provide enough school provision and support to her son during the COVID-19 lockdown.
2. As a result, Ms B said she experienced distress and had time and trouble to support her son’s education. She also said her son experienced distress and had a loss of education.

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What I have investigated

3. I have considered Ms B’s complaint about how the Council dealt with the breakdown in relationship between her and the School, including, its actions after the School terminated her son’s placement.
4. The final section of this statement contains my reasons for not investigating the other parts of the complaint.

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The Ombudsman’s role and powers

5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as schools. (Local Government Act 1974, sections 25 and 34A, as amended)
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 could appeal to a tribunal. However, we may decide to investigate if we consider it was unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
9. If we are satisfied with a council’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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How I considered this complaint

10. As part of my investigation, I have:
• considered Ms B’s complaint to the Council and its responses;
• discussed the complaint with Ms B and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• given Ms B and the Council the opportunity to comment on my draft decision and considered the comments they made.

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What I found

Law and Guidance

11. The Children and Families Act 2014 (the Act) sets out a council’s responsibilities when preparing an Education Health Care Plan (EHC plan) for a child who is to be educated in a school. The Act says:
• it must provide advice and information about special educational needs (SEN) to children or parents of children with a disability in its area;
• it must consider the wishes of the child’s parent or the young person, but a child or young person can be educated in an independent school; and
• a parent can appeal to a tribunal about the special education provision, or the school named in the EHC plan;
12. The Act also says if there is a dispute between a school and parent of a child with an EHC plan, it must:
• tell a parent about their right to ask for mediation; and
• make arrangements with a view to avoid or resolve disagreements.

Independent schools

13. An independent school can apply to be approved by the Secretary of State under Section 41 of the Act. However, they are not required to apply for such approval.
14. An independent school which is not approved is referred to as a non-section 41 school. Such schools are not required to admit children on a council’s register but can choose which children it wishes to admit. This is also the case even if the school is named in a child’s EHC plan.

Send Code of Practice

15. The guidance says a council must have a publicised Local Offer which sets out information about arrangements for school transport provision. This includes arrangements for children with an EHC plan.
16. A council must ensure that suitable travel arrangements are made where necessary to facilitate an eligible child’s attendance at school. This must be provided free of charge.
17. The guidance does not apply to non-section 41 schools.

What happened

18. Ms B’s son (Child X) has autism and autism related anxiety, which means he has special educational needs to be able to attend school.
19. In late 2017 the Council made an EHC plan for Child X. It found an independent school (the School) in its area could meet Child X’s needs and this was set out in his plan along with the need for school transport.
20. Ms B and the School agreed for Child X to be registered at the School. School transport arrangements were made, and Child X started attending the School.
21. In 2019 specific school transport arrangement were in place to ensure Child X could attend the School. This involved a school caseworker, who also had other educational duties, to drive him to and from the School half of the time. Ms B provided school transport on the other days. Without this support Child X found it difficult to attend school.
22. After the summer holidays in 2019, it was more difficult to get Child X to leave to go to School. The School’s caseworker told the School he did not want to continue the arrangement due to the impact this had on him. However, he continued to support Child X to attend the School during this time.
23. The School told Ms B it could not continue to provide the transport by a caseworker known to Child X as such staff had other educational duties. It therefore needed to be a driver only.
24. Ms B says she told the Council about her concerns the educational provision Child X received and said no EHC plan review had taken place. She also told it about the transport issues with the School.
25. Ms B, the School and the Council considered options to provide appropriate school transport for Child X to ensure he attended regularly. This included:
• a new driver, who was not a caseworker at the School;
• longer wait times for Child X to be collected;
• support from Ms B when needed; and
• work with Child X at the School to prepare him for the transition.
26. The Council also did an EHC plan review and agreed to fund the transport provision, including Ms B’s milage costs. The support was agreed and the School started recruitment for a driver.
27. The School found it difficult to find a driver with the necessary skills and experience to meet Child X’s needs. However, in December 2019 it told Ms B and the Council it had successfully recruited a driver.
28. Unfortunately, the recruitment fell through, and the driver did not start. So, the School proposed to use different staff members to collect and drop off Child X until it could recruit a driver. It later offered this transport with 30-minute wait times.
29. In early 2020, Ms B again told the Council about her concerns the school provision was not as set out in Child X’s EHC plan and did not meet his needs. She also asked the Council if the School could change the provision it had offered during a placement.
30. In response the Council told Ms B it had an Officer who was responsible for non-section 41 schools. It said she should contact the Officer to discuss her concerns.
31. Ms B did not contact the Council’s officer. She told the School about her concerns about Child X’s educational provision. She also said she was not happy with the transport arrangement, as she this met the family’s needs.
32. In February 2020, the School had not been successful in finding a suitable driver. It told the Council Ms B had met its proposals with resistance and the arrangement was having an impact on its staff and other students. It said it could therefore not continue the arrangement and asked the Council to provide the school transport. It also said it terminated Child X’s placement at the School and it had given Ms B the required notice.
33. The Council spoke with Ms B. It understood the relationship between her and the School had broken down, and she did not want Child X to continue at the School. It arranged for a taxi to transport Child X to the School until the end of the term or a new school placement could be found. Ms B worked with the Council and a temporary solution was agreed.
34. The Council then told Ms B it had found a new placement for Child X. Ms B was happy with the placement and said it may be more suitable than the School.
35. Due to COVID-19, Child X’s placement at the new school was interrupted and the family had to self-isolate.
36. Ms B complained to the School about its decision to terminate Child X’s placement and the transport provision it had provided. She said it had failed to make enough reasonable adjustments and take the views of her and collaborating partners into account before making its decision.
37. In response, the School did not uphold Ms B’s complaint. It said it had acted in line with its policies and was entitled to terminate the placement. It also said school transport was the Council’s responsibility, but it has tried to provide as much support as it could.
38. Ms B then complained to the Council about how it had handled her Child X’s placement at the School. She said:
• it had failed to offer mediation to resolve her dispute with the School;
• the School has breached its contract with the Council because it had failed to call an emergency review when the placement appeared likely to break down. And it failed to provide a fair complaint process which involved an independent disagreement resolution service;
• the School was wrong to say Child X’s attendance was poor and the las EHC review did not mention possible termination;
• it had failed to ensure Child X received the school transport provision as set out in the EHC plan;
• she had not been given enough information about Child X’s right or lack of rights at an independent school; and
• it was wrong to say the School’s termination was lawful.
39. In response the Council told Ms B:
• the School had agreed it had not followed its contract with the Council fully. As a result of her feedback, it would work with the School and other independent schools to ensure this happens in the future.
• it had not challenged the School’s decision or set up an intervention for the concerns because it was aware she was highly dissatisfied with the placement and did not want Child X to return. It therefore focussed on finding a new placement.
• it had not considered Child X’s attendance as this was not relevant;
• it had provided school transport or funding for this throughout Child X’s placement and worked with her and the School to put this in place. However, for reasons outside its control this broke down; and
• during the COVID-19 lockdown the School was closed, so no transport could be provided.
40. Ms B was not satisfied with the Council’s response. She feels she had not received enough advice about non-section 41 schools. She also said she was not dissatisfied with the placement and the Council should have offered mediation to prevent the breakdown of the placement. In addition, she also said she was not happy with the provision it provided Child X during the COVID-19 lockdown until September 2020.

Analysis

41. While I understand Ms B’s concerns that her son’s rights were limited when placed at a non-section 41 school, the Council was not at fault for doing so. This is because the law allows for children with SEN to be placed in such schools. However, the Council remained responsible for Child X’s education and school transport throughout the placement.

Was appropriate support provided by the Council prior to the placement breakdown?

42. The Council was aware the School was struggling to bring Child X to and from school. It was also told the School’s caseworker could not continue with the arrangement which had worked relatively well.
43. It discussed the concerns with the School and held an EHC review. When a proposal was agreed between Ms B and the School it agreed to provide the necessary funding to put this in place. However, when the proposal failed as the School was unsuccessful in its recruitment of a suitable driver, the relationship between the School and Ms B broke down. I am satisfied the Council could not have done more to ensure the specific transport arrangement were successful. This is because the failure of the arrangement was outside its control.
44. Ms B had a separate complaint with the Ombudsman in which we found the Council at fault for its delays in reviewing Child X’s EHC Plan. We were satisfied this led to a loss of educational provision for Child X. However, I cannot say the Council’s fault led to the breakdown of the placement. This is because it was the School’s decision to terminate the placement and it gave the Council no warning. Also, the Council told Ms B to speak with its Officer, who was responsible for relationships with the School, but she did not do so. I am therefore not satisfied the Council were aware or should have been aware the placement was close to breaking down.

Did the Council do enough when the relationship between Ms B and the School broke down?

45. The Council was told about the School’s decision to terminate Child X’s placement on the same day as Ms B. It said it did not offer mediation or take any other action with the School because Ms B said she did not want Child X to return to the School. The evidence shows the Council focussed on finding a new placement for Child X and to arrange temporary school transport for him.
46. I acknowledge Ms B said she wanted to resolve the dispute with the School, but the Council understood Ms B was dissatisfied with the placement. I am satisfied the Council considered Ms B’s and the School’s views. It therefore did not find mediation or a direct approach with the School would be useful. Instead, it organised the necessary temporary school transport for Child X and agreed this with Ms B. It also quickly found Child X a new school placement, which Ms B was happy with. It seems to me the Council’s approach was a sensible one and well considered. I have therefore not found the Council at fault on how it handled this matter.
47. In any event, I cannot say what the outcome would have been if the Council had offered mediation, nor did it have any power to make the School change its decision.

The School’s faults.

48. I cannot investigate or remedy faults by a school. However, I can consider if the actions the Council considered and agreed to were appropriate to meet its responsibilities.
49. Ms B said the School failed to follow its contract with the Council. Both the School and the Council agreed this was the case.
50. The Council said it would work with the School to ensure it fully complies with its contract. This included ensuring emergency reviews are called, use of mediation is considered and complaints processes are adhered to. It said it would review the School’s contract and procedures in its next quality assurance visit.
51. The Council also said it would review its contracts with all non-section 41 schools in the area.
52. I am satisfied the Council has considered the faults it identified by the School. It has made arrangements to ensure the School and other non-section 41 schools complies with its contract and the law. I can therefore not make any further comments on this matter.

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Final decision

53. I have completed my investigation with a finding of no fault by the Council.

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Parts of the complaint that I did not investigate

54. I have not investigated Ms B’s complaint about the Council’s decision to place her son in an independent school and the advice it provided. This is because:
• the matters complained about are more than 12 months ago;
• Ms B was happy with her son’s placement until her relationship with the School broke down;
• if Ms B was unhappy with the placement, she had a right to appeal its decision in 2018; and
• the School was listed in Ms B’s son’s EHC Plan. She therefore also had the right to appeal the listing of the School to a tribunal.
55. I have found it would have been appropriate for Ms B to have raised her concerns at the time. I have therefore seen no good reasons to exercise my discretion on these matters.
56. I have also not investigated Ms B’s concerns her son did not receive enough provision and support during the COVID-19 lockdown until September 2020. This is because this was not part of her original complaint to the Council. I have therefore not seen evidence the Council had an opportunity to consider and respond to this.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman