Summary: There was fault by the Council in failing to update an Education, Health and Care plan when a child moved from primary to secondary school; failing to apply the correct legal test to decide whether transport should be funded to the parental preference school; and failing to provide a full explanation to parents and a right of appeal when transport was refused. This caused injustice and uncertainty about what the outcome would have been had the fault not occurred. Recommendations for an apology, a financial payment and service improvements are made.

The complaint

1. A representative from School B complains on behalf of Ms X, and her son Z, about the Council’s decision not to provide free home to school transport to Z. School B says the Council has failed to take account of a change of circumstances which has made it too difficult for Ms X to continue transporting Z to school.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. 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)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
6. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
7. 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

8. I have considered information provided by Ms X, Z’s school and the Council including:
• Applications for school transport
• Decision letters
• Appeal documents
• Council’s transport policies
• Z’s Education, Health and Care Plan.
9. I have considered relevant legislation and guidance including:
• Education Act 1996
• Children and Families Act 2014
• Statutory Guidance: ‘Home to school travel and transport guidance’, July 2014 (‘The Guidance’).
• Statutory Guidance: ‘Special educational needs and disability code of practice: 0 to 25 years’, January 2015 (‘The Code’)
10. I have considered guidance issued by the Ombudsman:
• Guidance on Remedies
• Focus Report: ‘All on Board? Navigating school transport issues’, 2017.
11. I have spoken to Ms X and Z’s School by telephone.
12. I have written to Ms X and the Council with my draft decision and considered their comments.
13. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Relevant law and guidance

14. Where it is necessary for special educational provision to be made in accordance with an Education, Health and Care (EHC) Plan the Council must prepare and issue a finalised plan. Where a child is to be educated in a school, section I of the Plan (placement) must name the school the child will attend.
15. The child’s parent or the young person has the right to request a particular maintained school be named in their EHC plan (The Code paragraph 9.78) and the local authority must comply with that preference and name the maintained school in the EHC plan unless:
• it would be unsuitable for the age, ability, aptitude or special educational needs (SEN) of the child, or
• the attendance of the child there would be incompatible with the efficient education of others, or the efficient use of resources.
16. If the Council does not name the parental preference school in the final EHC plan, then the parent or the young person has a right of appeal to the Tribunal against the school named.
17. An EHC plan must be reviewed annually and amended in sufficient time prior to a child moving between key phases of education. The review and any amendments must be completed by 15 February in the calendar year of a transfer between schools, for example between primary to secondary school (The Code 9.179).
18. The parental preference school might be further away from their home than the nearest school that can meet the child’s needs. In such a case a council can name the nearer school if it considers it to be appropriate for meeting the child’s SEN. If the parent prefers the school that is further away, the council may agree to this but is able to ask the parents to provide some or all of the transport funding (The Code 9.214).
19. The situation where there are two suitable schools (the parental preference and the Council’s preference), and a child with an EHC plan is entitled to free home to school transport, was considered by the SEN Upper Tribunal in Dudley v Shurvington [2012] EWCA. The Upper Tribunal found that in deciding which school to name in the plan councils should consider whether transporting the child to the parent’s choice of school would be compatible with the efficient use of resources. This is known as ‘the Dudley test’. A council should first determine the cost of providing the child with free travel to each of the two schools. It should then decide whether the additional cost of providing travel to the parent’s choice is compatible with the efficient use of resources. In doing so, it should have regard to the educational benefits and other advantages that the school will provide for the child.
20. If a council decides the parent’s choice is compatible with the efficient use of resources then it should name only this school on the EHC plan. If a council decides the additional cost is incompatible with the efficient use of resources, it may name both schools in the EHC plan on the condition the parents pay the cost of transport to their preferred school.
21. Where a parent disagrees that both schools are suitable and considers only their choice can meet the child’s SEN, or, where a parent considers that the cost including transport to their preferred school is not an inefficient use of resources, they have a right of appeal to the SEND Tribunal. The Tribunal cannot determine a child’s eligibility for school transport but it can take into account the whole cost of the placement including transport when deciding if the parent’s choice of school is incompatible with the efficient use of public resources.

What happened in Z’s case

22. Z has SEN and has an EHC plan. He transferred from primary to secondary school in September 2018.
23. When the Council and Ms X were considering which secondary school Z should attend, the Council says it made Ms X aware of the transport implications of choosing an out of borough placement. The Council consulted two schools, School A in its own area and School B, Ms X’s preference, which was out of area. School A is 3.3 miles from Z’s home and School B 5.6 miles.
24. The Council’s transport policy required Ms X to complete an application for school transport setting out Z’s needs. Ms X did so in March 2018 and stated Z’s father worked 30 hours per week and was not available during school hours and that she was not in employment. Ms X said she had no family support and had to take her husband to the station each morning, then Z’s sibling to nursery, and then Z to school and then reverse the journey each afternoon.
25. The Council’s transport moderating panel decided Z was eligible for transport to School A due to distance and his needs.
26. The Council spoke to Ms X in June 2018 about her preference for Z to attend School B. It said it would need to get the place costs from the other authority and ask its (SEN) panel to decide whether Z could attend School B based on costs, ‘including transport’.
27. In July 2018 the Council spoke to Ms X and confirmed its SEN panel had agreed a place at School B could be named on the EHC plan. It said this was parental preference and there was no guarantee of transport to School B. The Council’s telephone note indicates Ms X stated that she understood the situation about parental preference and that she needed to fill in a further application for transport for School B.
28. Ms X’s application for transport for School B said Z’s sibling was starting reception at a local school and it was not possible for her to drop both children at the same start time. Z’s father worked full-time, leaving the house early and she had no family support. Ms X said Z’s sibling had been recently diagnosed with a medical condition which required adult supervision and she needed Z to have school transport. Ms X said Z had no awareness of danger, needed constant supervision and could show challenging behaviour.
29. On 16 August 2018, the Council’s panel decided Z should not receive transport because School B was a parental preference school and so Ms X was responsible for any travel costs incurred. Under the Council’s transport policy Ms X appealed this decision to an independent Appeals Committee who heard the appeal on 4 October 2018. Ms X attended the appeal hearing.
30. The Appeals Committee noted the EHC team had received confirmation School A could meet Z’s needs and Z would have been eligible for transport to School A. It noted there are significant cost implications in attending an out of borough school and Ms X was made aware of the transport implications of Z attending School B on parental preference grounds. The Council officers told the Committee that Z could go on a shared bus to School A, but as no other local children attended School B the cost would be high, as a single use taxi would be needed. The Committee considered the telephone records between Ms X and the Council when the two schools were discussed. Ms X had stated that School B used visual supports when School A did not and that Z needed the approach used at School B.
31. The Committee’s decision letter noted Ms X had chosen School B because she considered it was better equipped to meet Z’s SEN. It noted Ms X had another younger child who had recently been diagnosed with a medical condition. Ms X had told the Committee her sister had been going to help take Z’s sibling to school but due to the child’s medical condition this was not now possible, also that her sister had to look after her own children including a new baby. The Committee noted Z’s sibling was going to the breakfast club and so Ms X was able to get both children to school on time but both needed collected at the same time. Ms X had told the Committee that Z distracted her in the car and would lash out and hit her. Ms X felt she needed another adult in the car for school trips although Z was fine on normal journeys.
32. The Committee said Ms X’s circumstances were not sufficiently exceptional to depart from the Council’s policy as School B was a parental preference school and there was a nearer school that could meet needs for which transport could be provided. The Committee upheld the Council’s decision to refuse transport to School B.
33. School B complained to the Council on Ms X’s behalf about the decision to refuse transport. The Council responded in June 2019 that:
• On 6 April 2018 it had granted transport support to School A for September 2018 in the form of a shared bus with an allocated passenger assistant.
• School A was named on Z’s EHC plan as the nearest suitable school which could meet need.
• The transport service became aware after moderation in April 2018 that parent’s preference was for Z to attend School B.
• The Council said its transport policy said where there are two suitable schools it may name both schools in the EHC plan but include reference to the parents accepting responsibility for travel and associated costs to their preferred school.
• The Council said its decision to decline transport was in line with this policy.
34. Ms X then made a further transport application in June 2019 on the basis of a further change of circumstances. The application said Z’s father worked 30 hours per week and collected Z’s sibling from school at 3.15pm and then went back to work. Ms X collected Z from school but this was becoming too difficult for her as Z’s strength and running off made him difficult to manage. Ms X was pregnant and unable to manage Z in the car as Z would kick the car seat when Ms X was driving and scream. On public transport Z would strip in public, remove his shoes and try and run away, he may scream or hit the person next to him. The application stated both Ms X and Z’s sibling had medical needs and Ms X would not be able to manage with three children on the journey to school each morning when the baby was born.
35. The Council’s transport panel refused the application on 5 July 2019 as the placement at School B was parental preference and a similar application had been refused previously.
36. As part of my investigation I asked the Council to provide me with a copy of Section I of Z’s EHC plan. Section I names Z’s primary school. It does not name School A or School B.
37. I also spoke to Ms X and School by telephone. School B told me when Ms X accepted the place at School B she had family support to get Z to school, but Ms X’s sister now has three young children and could not assist. School B said the Council had not properly taken account of the changes in Ms X’s circumstances including Z’s sibling’s diagnosis and that Ms X was pregnant. School B said Ms X should have freedom to choose the school that best met Z’s needs.
38. School B and Ms X told me that several children attend School B from the Council’s area and all of the other children have school transport provided by the Council. They suggested that there would be space for Z to travel with the other children attending from his area. It is clear Ms X and School B consider that School B is more suitable for Z than School A and Ms X is disappointed that she did not get transport approved to her choice of school. School B said they would find it helpful to discuss suitability of the two schools with the Council. School B could not tell me if Z has had an annual review since starting there.

Analysis

Fault

39. The Council did not update Z’s EHC plan by February 2018 in the year Z transferred to secondary school. It has also not updated the Plan since Z started his school in September 2018. This is fault. Z’s plan should have been updated by February 2018 with the new placement and reviewed annually.
40. In June 2018, the Council said its SEN panel would consider the request for School B, obtain costs from the other authority for the school place, and decide whether School B could be named on the EHC Plan after considering all the costs ‘including transport’. This did not happen and was fault. The SEN panel agreed to fund the school place but did not consider the transport costs of the two placements. It did not apply the ‘Dudley test’ and consider the costs of each placement and whether any additional cost of Z travelling to School B represented an inefficient use of resources. It failed to update the Plan to name either school.
41. The failure to issue a final plan with an updated placement meant:
• The Council failed to follow its own policy to name two schools in the Plan with a condition that parents fund transport to their choice
• Ms X was not given a formal decision and explanation about why the cost of Z attending her preferred school was an inefficient use of resources
• Ms X was denied a right of appeal to SEND about the Council’s decision School A was also suitable to meet Z’s needs
• Ms X was denied a right of appeal to SEND about whether the cost of Z attending School B, including transport, was an inefficient use of resources when set against other advantages of that placement.
42. When the transport panel and Appeal Committee decided Ms X’s application in August and October 2018 they did so without checking the wording in the EHC Plan. This was fault. The officers and Members wrongly assumed the EHC team had updated the Plan in line with the Council’s policy and that a condition of Ms X meeting transport costs to School B had been included in the Plan.
43. Apart from oral evidence given at the Appeal Committee about the type of transport Z would need to School A and School B, there is no evidence the Council considered what the transport costs to each placement would be. Evidence from School B also casts doubt on the accuracy of information given to the Committee that Z was the only pupil attending School B from the Council’s area and that he would need a high cost single use taxi.
44. It is not for the Ombudsman to decide whether both schools are suitable or whether the cost of transport to School B is an inefficient use of resources, only the Council and SEND can do that. The Ombudsman would expect Ms X to take the matter to Tribunal to resolve.
45. Ms X can obtain a new right of appeal:
• by the Council issuing an amended final Plan naming a secondary school
• by the School or Council holding an annual review and making a decision whether to maintain or amend the EHC Plan.
46. I have not found fault with the way the Council considered Ms X’s family circumstances in 2018. It is clear the Council and Appeal Committee did consider her evidence and the situation regarding lack of family support, Z’s needs and the sibling’s diagnosis. The fault was in not updating the EHC plan, applying the Dudley test and formalising the transport position about parental preference. The family knew about Z’s sibling’s medical condition before Z started at School B and Ms X indicated problems with transporting both children from the start.
47. Where a parent takes on the responsibility for school transport it is reasonable for councils to expect the parents to continue to do so throughout the child’s time at school. Where a change in circumstances makes it impossible for parents to continue providing transport, councils must reconsider the situation but, where there is a nearer suitable school, a council could offer this with transport and require the child to move schools.
48. The decision letter in July 2019 failed to demonstrate how the Council had considered Ms X’s evidence about a change in circumstances or say whether the Council would be able to offer a place at School A if Ms X was unable to continue to transport Z to School B.
49. The Council’s complaint response to School B in June 2019 was inaccurate in stating Z’s EHC plan named his current placement as parental preference. This was fault. The complaint reviewer should have checked the wording on the Plan.
50. Council decision makers have repeatedly referred to ‘parental preference’ as the reason why the Council would not provide transport. This is an over-simplification of the Dudley test and can give a false impression that a council will never pay for transport where a school is named under parental preference. The statutory guidance says that in such a situation, councils can ask the parents to pay all or some of the travel costs; under Dudley this would only apply where the additional costs are an inefficient use of resources once the advantages of attending each school have been taken into account. It is not clear if Council staff and Appeal Panel members have a full understanding of the Dudley test.

Injustice

51. Ms X missed out on the opportunity to appeal to SEND about:
• the Council’s decision that School A was suitable and
• whether transport to School B was an efficient use of resources.

This is an injustice.

52. It is not for the Ombudsman to speculate on what decision SEND might have made had Ms X used a right of appeal. The uncertainty of whether an appeal on either point might have been successful is itself an injustice.

Agreed action

53. Within one month of my final decision the Council’s SEN team will meet Ms X and School B to:
• discuss their views about the suitability of School A and School B for Z’s needs
• share details of the costs, including transport, for Z to attend School A and School B, to include consideration of whether it could offer a spare place on transport to School B from Z’s area.
54. Within two weeks of this meeting the Council will:
• provide Ms X with a written decision setting out its view as to whether both School A and School B are suitable schools for Z and confirming, with reasons, whether it regards attendance at School B, including transport costs, to be an inefficient use of resources
• issue an amended final EHC plan with a correctly worded Section I confirming Ms X has a right to appeal the contents of the Plan to SEND.
55. Within two months of my final decision the Council will review its policies, quality monitoring, guidance and training to ensure:
• It plans ahead for phase transfers so EHC plans are finalised by February in the year of a key transfer
• It always updates EHC plans when a change of school occurs and correctly provides families with a right of appeal against the school named
• Officers can correctly apply the ‘Dudley test’ and always provide families with costings and reasons when their preferred school is not named or when transport to a preferred school is refused
• It always follows its own policy to name both schools in the EHC plan with a condition parents pay transport where this is its decision after applying the Dudley test
• Transport decision makers and appeal panel members always check the wording on the EHC plan when deciding transport applications.

The Council will provide a report to the Ombudsman within two months of the final decision setting out the actions it has taken to prevent a recurrence of the fault identified in this case.

56. To investigate whether other families have been similarly affected, the Council will carry out a dip sampling of transport decisions within the last twelve months where parental preference applied to check:
• whether the EHC plan was updated in line with the Council’s policy and,
• whether the Dudley test has been correctly applied with costs of each placement calculated, a decision about efficient use of resources made, and the decision with reasons and costings communicated to the family.

The Council should report the findings of the audit to the Ombudsman within two months of the final decision and set out any remedial action it intends to take if systemic fault is found.

57. Within one month of my final decision the Council will:
• apologise to Ms X for the faults identified
• pay Ms X £500 to acknowledge the injustice of being denied a right of appeal and the uncertainty of whether such an appeal would have been successful in leading to transport being funded.

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Final decision

58. I have completed my investigation. There was fault by the Council in failing to update an EHC plan when a child moved from primary to secondary school; failing to apply the correct legal test to decide whether transport should be funded to the parental preference school; and failing to provide a full explanation to parents and a right of appeal when transport to the parent’s preferred school was refused. This caused injustice and uncertainty about what the outcome would have been had the fault not occurred.

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Investigator's decision on behalf of the Ombudsman