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Can I claim transport costs arisen while appealing changes to transport provided (appeal was successful)?
- Transport changed from solo taxi to shared taxi without new risk assessment being conducted
- initial appeal (end of august, just before school returned) submitted parent statement
- initial appeal failed, warned one attempt left. Gathered evidence from multiple professionals for stage two appeal and triggered pre-action protocol letter
- while appealing - self funded transport with the same company the LA had been using previously, receipts provided
- outcome - won appeal and LA concluded solo transport was required, however refusal to reimburse any costs as it was parental choice to send our son to school and we hadn't provided all the evidence (which we didn't have) at stage one
Context - our son is a school refuser (gaps in attendance can lead to increase in distress behaviours going in / increased refusal), his school is out of county and we were unable to drive him ourselves, all our leave was allocated to school holidays, our son has a congenital brain injury and cannot be left at home without supervision, our son has previously looked after child status (adopted) and significant trauma, the loss of regular driver triggers rejection and toxic shame responses (including self injurious behaviour).
Additional - initial appeal August 2024, pre action protocol issued October 2024 (and not accepted as stage two complaint hadn't gone through - we thought both ran together, additional costs associated with this), complaints re costs incurred outcome August 2025. (Process initially delayed by gathering evidence, and then by stress incurred / health issues)
Costs incurred - around £5,000, now in debt as a result as had been told if we won the appeal we would claim costs back (but county staff member - recording of this phone call is unavailable we have been told, as not all calls are recorded) -
Is the LGO correct to tell me that it cannot investigate my complaint because I used my right to appeal to the SEND Tribunal?
I made a complaint to the LGO in relation to the LA's refusal to provide recompense for the legal costs I was forced to incur as a direct result of the LA’s substantial and persistent failings.
The LGO has just responded to say that it cannot investigate my complaint because I used my right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and this places the matter outside the LGO’s jurisdiction. The LGO referred to section 26(6)(a) of the Local Government Act 1974 to support this decision.
I understand that the LGO can’t consider a complaint where someone has already appealed to a Tribunal about the same matter but am confused as to how the Council’s refusal to provide recompense falls within the definition of the same matter.
The matter that came before the Tribunal in July 2022 was an appeal against the contents of my daughter’s EHCP – Sections B, F and I. The matter that I brought to the LGO was the LA’s decision not to provide recompense for the legal costs I was forced to incur because of their maladministration and service failure.
I had been advised that the general rule in the SEND Tribunal jurisdiction is that there should be no order for costs. We therefore made no request for costs. Further, the LA’s Assistant Director of SEND had told me in a meeting before the Tribunal that he would consider my request for recompense of legal costs if I put it to him in writing. I did this after the Tribunal. At the same time, I asked for recompense for loss of educational opportunity, loss of income and for emotional costs.
The LA agreed to provide recompense in relation to those costs, but not for the legal costs. It was this decision – made in October 2022 - that I made a complaint about to the LGO.
The LGO replied and told me that I had to go through the LA’s complaints procedure. I did what they asked and spent the next 5 months going through the LA’s lengthy two-stage process. When I eventually got the LA’s ‘final outcome’, I went back to the LGO. This has resulted in the decision that I’ve just received - that the LGO can’t investigate my complaint because it doesn’t have jurisdiction.
Firstly, I am frustrated because if this is the case then surely the LGO must have known this in October 2022? It could have saved me a lot of work, stress and anxiety if it had told me this rather than telling me that I had to go back to the LA and go through their formal complaints’ procedure; and secondly, how does my complaint fall within the same matter?
The LGO’s reasoning is that the legal costs are a consequence of the matter about which I appealed and therefore it cannot consider whether the costs I incurred resulted from fault on the Council’s part. It says that the Courts have held that matters relating to the subject of the appeal are caught by this and therefore there is no role for the Ombudsman here. Is this right or do I have any further rights to appeal this decision? Disappointingly, the LGO decision does not set out the cases where the Courts have held this – as I would be interested in reading them.
I believe that this case highlights a very real issue in relation to SEND law and access to justice.
Many thanks in advance for any answers to my question. -
We are currently undergoing our daughters first EHCP review. The educational psychologist who was initially contacted as part of the EHCP as responded ...
... to the nursery’s request to review /update the plan and has asked the nursery setting for payment of three hours of their time. The nursery has forwarded the request to us. The educational psychologist is instructed as part of the NHS and we are confused as to the payment. We have queried this but no response and are now concerned that it may delay the review. Any advice welcome please.
K Kaur
14 Feb 2022