The Ombudsman's final decision:
Summary: Mrs X has complained about the Council’s refusal to provide assistance with home to school transport for her daughter, D, who attends a special school named in her Education, Health and Care Plan (the Plan). The Council is at fault for not providing school transport and also for not reviewing the Plan. The Council has agreed our recommendations to pay Mrs X £2,250 for the costs incurred due to the refusal to provide school transport, check and take action if it has failed to review others plans, and review its procedures to avoid a recurrence of the faults identified.
- Mrs X moved from another council’s area (Council 1) to this Council (Council 2). She has complained that Council 2 has refused to provide home to school transport for her daughter, D, who has an Education, Health and Care Plan (EHC plan) and attends the school named in that plan (in Council 1’s area).
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. 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)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
- 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)
How I considered this complaint
- I spoke to Mrs X about the complaint and considered the information she provided.
- I have considered the Council’s replies to my enquiries.
- I made enquiries of the council where Mrs X used to live (Council 1) and considered its response.
- I have considered statutory guidance: special educational needs and disability: code of practice (January 2015) and the statutory guidance: home to school travel and transport guidance (July 2014).
- I have considered the Council’s Home to School Transport policy (May 2016).
- I have considered the Ombudsman’s guidance on remedies.
- I gave the Council and Mrs X the opportunity to comment on my draft decision. I considered their comments before making my final decision.
What I found
- The purpose of an EHC plan is to make special educational provision for children with special educational needs and disabilities. Councils are responsible for deciding whether an EHC plan is needed and for preparing the EHC plan. The EHC plan should set out the specific support that is to be provided. It will usually name either a specific school or a type of school that can meet the child’s needs. The EHC plan will usually be reviewed annually.
- If the EHC plan names a school without conditions and it is the only school named then it becomes the suitable school for transport purposes. The council must provide free school transport to that school if it decides the child is eligible.
- If the council considers another, closer school is also able to meet the child’s needs and decides the cost of transport to the parents’ preferred school costs too much it must then either change the EHC plan to:
- Name the further school as parental preference but state in the EHC plan that there is a closer suitable school and so the parent will be responsible for school transport or,
- Name the closer school only.
- Section 9 of the Education Act 1966 says children should be educated in accordance with the parents’ wishes so far as that is compatible with the provision of efficient education and the avoidable of unreasonable public expenditure. Councils must meet parental preference for a maintained school to be named in their child’s EHC plan unless the school is not suitable, it would be incompatible with the efficient education of others, or the attendance of the child would be incompatible with the efficient use of resources (9.79 of the Code).
- When a Tribunal compares whether it would be incompatible with the efficient use of public resources to attend the parents’ school, of preference, it can take into account the whole cost of the placement, including any transport costs the council would incur. This was confirmed in the case Dudley MBC and Shurvinton  EWCA Civ 346.
- Statutory guidance states eligibility for home to school transport is usually based on the walking distance to the nearest “qualifying” school and whether there is a safe walking route. For children with special educational needs the “qualifying” school is the school that is named in the child’s EHC plan. The guidance suggests a maximum journey time each way for primary school age children of 45 minutes.
- The Council’s school transport policy 2016-2017 (May 2017) states at para 9.9 and 9.10:
“In relation to a child with Special Educational Needs (SEN), an independent school … will be a qualifying school if it is the only school named in the child’s statement or EHC plan, or it is the nearest of 2 or more schools named in the statement. In the case of special education, it will be the nearest suitable special school with places available that can provide an education appropriate to the age, ability and aptitude of the child and any special educational needs that the child has as specified in his or her statement of special educational need or EHC plan.
There is no automatic entitlement to travel assistance for a child who is the subject of a statement or EHC plan. Assistance will be given, if the child meets the general criteria in Section 2 or when a specific need can be identified for it.
- Its policy at para 9.28 states:
“A child undergoing formal assessment for Special Educational Needs or EHC plan will have their transport needs considered as part of that process”.
- Its policy at para 9.36 states that if transport need has not been assessed as part of the EHC plan assessment or review process, the parent will need to complete an SEN Transport Needs Assessment form. It states at para 9.37:
“It should be noted that the Council will consider transport to the nearest suitable school. If by parental preference a more distant school is named in the child’s statement or EHC plan but in the Authority’s view the child’s needs could be suitably met at a nearer school, transport will be the responsibility of the parent/carer”.
- Mrs X’s daughter D has had a statement of special educational need since 2012, This transferred to an Education, Health and Care Plan in 2014. D attended several schools during this time. Her 2016 EHC plan named school A, an academy, as the appropriate setting.
- Mrs X moved house in April 2016 to be closer to her extended family, moving to a new Council area (Council 2 - the subject of this complaint). She now lives 12 miles from School A. Mrs X takes D to school by car and says this takes her about half an hour each way.
- Mrs X did not tell her old council (‘Council 1’) that she was moving. She told the Special Educational Needs and Disabilities (SEND) team at the new Council (‘Council 2’), that she had moved into its area in early June 2016. The Council immediately contacted Council 1 to request D’s file.
- Council 1 promptly sent D’s EHC plan to Council 2. Council 1 did not send the rest of the file until 10 November 2016, at which point it asked for confirmation that responsibility for D had been formally transferred to Council 2. Council 1 cannot explain why it took from June until November 2016 to transfer the full file.
- Mrs X applied to Council 2 for assistance with home to school transport on 9 November 2016. Mrs X emailed the Council for an update in February 2017. She said School A was the nearest special school to their home and it should not matter that the school was in Council 1’s area. She said she was trying to get a copy of the EHC plan but was surprised that Council 2 had not chased it up given she had lived in its area for nearly a year. (In fact Council 2 had been sent this in June 2016). Council 2 replied by email. It said it was advised by its SEND team that:
- D could remain at School A as it is parental preference.
- School B was the closest school that can meet D’s needs.
- As school A was parental preference, there was no entitlement to assistance with home to school transport
- D’s EHC plan names school A as the appropriate setting for D’s education. This means it is the qualifying school for D.
- The EHC plan should be reviewed either 12 months after issue or within 3 months of a transfer, whichever is later. D’s EHC plan was issued in January 2016. It was sent to Council 2 in June 2016 and the file was formally transferred on 28 November 2016. Therefore, Council 2 should have reviewed the EHC plan by 28 February 2017 at the latest.
- In its replies to my enquiries the Council said it has tried to work with school A to review the EHC plan but the school has not co-operated. Council 2 is responsible for D and for reviewing her EHC plan and it has not done so within the time set by the law. This is fault.
- Failure to review D’s EHC plan means the Council has denied Mrs X the right to appeal to the SEND tribunal against any changes to the plan. It is unclear whether this fault has caused personal injustice because D’s needs may have been met by School A in the interim.
- The EHC plan is a legally binding document that the Council has not amended. D has continued to attend the school named in that plan so it does not appear to be impractical. The Council has not made arrangements for D to attend any other school.
- In considering Mrs X’s request for assistance with school transport, Council 2 decided School B, in its area, could meet D’s needs. If the Council wanted to change the school it would need to change the EHC plan to specify school B. It has not done so. Therefore, it has not complied with the Code.
- Mrs X moved in April 2016. She told the Council she had moved into its area in June 2016. She did not apply for assistance with home to school transport until 9 November 2016. The Council’s fault has caused Mrs X injustice because she has lost out on the home to school transport assistance she was entitled to since November 2016. Mrs X has had to take D to school in the car, incurring travel costs, and has also had to pay for after-school care for her other child.
- Council 2 also failed to explain in its final decision letter that this was the end of the process and that Mrs X could complain to the Ombudsman. This is fault, which meant Mrs X had to contact Council 2 to ask if there was a further appeal. I am satisfied that Council 2 provided this information quickly after Mrs X requested it and has amended its process so that it provides full information in its decision letters in future.
- The Council will, within one month of the date of the final decision:
- Apologise to Mrs X for failing to review the EHC plan and failing to recognise School A was D’s qualifying school.
- Pay Mrs X £2,250 to cover the expense, the time trouble and inconvenience caused by the need to transport D to school A from November 2017 (when Mrs X applied for assistance).
- Arrange home to school transport for D to attend School A.
- Review D’s EHC plan
- Review its procedures to ensure that in future if a child with an EHC plan moves into its area it reviews the EHC plan within the statutory timescales, and ensure all relevant staff are reminded of the importance of doing this
- Check whether it has any other EHC plans that are over 12 months old without a review and take steps to review them
- Check whether any other families moving into the area since January 2016 have been affected, take steps to address any outstanding reviews and reconsider whether the families are entitled to home to school transport
- Provide training for appeal committee members and clerks to ensure they understand the different considerations that apply to school transport when children have special educational needs or disabilities.
- Report to the Ombudsman on its progress with these actions.
- I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice, check and take appropriate action if others have been affected, and prevent reoccurrence of this fault and the Council has agreed.
Investigator's decision on behalf of the Ombudsman