The Ombudsman's final decision:
Summary: Mr X complains the Council has failed to properly consider his son’s application for school transport. The Council’s decision not to provide school transport is in the content of Child S’s Education Health Care Plan (EHC Plan). Mr X has a right of appeal about the content of his son’s EHC Plan to the First Tier Tribunal (Special Educational Needs and Disability). It is reasonable for him to use that right and therefore I am discontinuing my investigation.
- Mr X complains the Council has failed to properly consider his son’s (Child S) application for school transport.
The Ombudsman’s role and powers
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
How I considered this complaint
- I read the complaint and supporting information supplied by Mr X. In addition, I have considered relevant information provided by the Council including Child S’s Education Health Care Plan (EHC Plan).
- Mr X and the Council have had an opportunity to consider a draft decision and I have considered their comments before issuing this final decision.
What I found
- Child S has Autistic Spectrum Disorder, which causes difficulties with social interaction, language and repetitive behaviors.
- Child S starts secondary school in September 2018. Mr and Mrs X named School A as a parental preference in October 2017. The Council offered a place at his preferred school (School A), approximately 4 miles from his home in January 2018.
- On 22nd January 2018, the Council wrote to Mr and Mrs X saying that it proposed to amend Child S’s Education, Health and Care Plan (EHC Plan) to name School A.
- Mr and Mrs X submitted a travel assistance application on 26th January. On the same day, Mr and Mrs X received an email from the Council stating that School A and School B are both schools considered appropriate to meet Child S’s needs. It said that as a result of parental preference School A has been named in Child S’s EHCP. The Council also said that as School A is not his local school it is the responsibility of parents to arrange transport to and from school. Mr and Mrs X say it was not apparent that School B had been added to his EHC Plan at this point.
- The Council’s multi-agency panel considered the travel assistance application but refused the application on 31st January stating that the suitability of a more local school (School B) as the reason.
- On 15th February the Council sent Mr and Mrs X a final EHC plan naming School A; the parental preference. The final plan states School B could also meet Child S’s needs. School B is within statutory walking distance of the family home. The final EHC Plan states that because School A is not Child S’s local school, it is the responsibility of parents to arrange transport to and from school. The Plan says if parents are not able to take responsibility for transport arrangements, the Council will hold an annual review of the Plan with a view to naming School B instead.
- Mr and Mrs X submitted a first stage review of their application for transport assistance. The reviewing officer upheld the Council’s decision to refuse travel assistance.
- Mr and Mrs X submitted an appeal of the Council’s decision. An appeal panel refused the appeal.
- It is increasingly common for Councils to compromise with parents over the choice of school for their child by saying in a Plan that another school is the nearest suitable school, but the child can attend a more distant school if the parents arrange transport. This is what has happened here, as the Plan says School B is suitable but Child S can go to School A if his parents arrange the transport.
- The case of Dudley MBC v JS (2011) UKUT67 (AAC) says what approach tribunals and local authorities should take to the question of transport costs in Special Education Needs appeals.
- In the Dudley case, the parents were dissatisfied the Council had included reference to an alternative school and made them responsible for transport in the Statement of Special Educational Needs (now an EHC Plan). They appealed to the First-Tier Tribunal (SEN Tribunal) asking it to name only their preferred school.
- The tribunal upheld the parents’ appeal. It held that although both schools were suitable, the greater expense of providing transport to the parents’ preferred school was minimal, and outweighed by the benefits of the child attending the preferred school.
- The Council and its special educational needs transport appeal panel have considered Mr X’s case. They based their decisions on the content of Child S’s final EHC Plan and the Council’s transport to school policy.
- It is evident from the dates referred to above, that the Council made its initial decision to refuse Child X’s application for school transport before the EHC plan was finalised. However, the Council had informed the parents of their intent to consider the more local School B in relation to the transport application decision. Only a final EHC Plan is legal document that decision-making must consider.
- In my view, the root of the complaint lies with the Council’s inclusion of both schools and the transport condition in the Final EHC Plan.
- Mr and Mrs X can appeal to First-tier Tribunal (Special Educational Needs and Disability) about the content of the plan. The Ombudsman cannot tell the Council to change EHC Plan, what conditions it can impose and which school it should name. Only the tribunal can do this. I consider it reasonable for Mr and Mrs X to appeal to the tribunal as only it can achieve what Mr and Mrs X want.
- Mr X has a right of appeal about the content of his son’s EHC Plan to the First Tier Tribunal (Special Educational Needs and Disability). It is reasonable for him to use that right and therefore I am discontinuing my investigation.
Investigator's decision on behalf of the Ombudsman